30 Exceptions for Section 230’s 30th Anniversary

This month marks 30 years of Section 230 of the Communications Act (47 U.S.C. § 230), a fundamental yet misunderstood Internet law.

Section 230 is often mistakenly referred to as a “get-out-of-jail-free card,” “blanket immunity from liability,” or “nearly impenetrable legal perimeter.” Senators across the political spectrum have increasingly proposed to sunset the law, with a major driver being the allegation that certain digital services are “immune from lawsuits” or have “absolute immunity.” 

Several oft-cited opinions have employed strawman arguments about how Section 230 was not intended to “create a lawless no-man’s-land on the Internet” or provide “an all-purpose get-out-of-jail-free card for businesses that publish user content on the internet.”

Yet in reality, courts are regularly degrading Section 230’s protections, and poking holes — what Professor Eric Goldman has called “swiss-cheesing.” Prof. Goldman reports that recent decisions, especially in the Ninth Circuit, have enabled courts to create a “virtually infinite number of common law exceptions to Section 230.” 

For Section 230’s 30th anniversary, below are 30 times Section 230 did not apply (many in the 9th Circuit) from case law and in the statute itself:

1. Batzel v. Smith: exclusion for third-party content not intended for publication.
2. Fair Housing Councils v. Roommates.com: exclusion for encouraging illegal content.
3. Fair Housing Councils v. Roommates.com: exclusion for requiring the input of illegal content.
4. Fair Housing Councils v. Roommates.com: exclusion for materially contributing to content illegality.
5. Barnes v. Yahoo: exclusion for promissory estoppel.
6. Doe v. Internet Brands: exclusion for failure-to-warn.
7. Beckman v. Match.com: exclusion for failure-to-warn.
8. HomeAway v. Santa Monica: exclusion for consummating third-party transactions.
9. Enigma v. Malwarebytes: exclusion when plaintiffs allege “anti-competitive animus.”
10. Gonzalez v. Google: exclusion for funding third-party content.
11. Lemmon v. Snap: exclusion for “negligent design.”
12. Vargas v. Facebook: exclusion for discriminatory ad targeting.
13. Quinteros v. Innogames: exclusion for moderators’ activities.
14. Diep v. Apple: exclusion for first-party marketing representations.
15. Calise v. Meta: exclusion for contract-based claims.
16. Bride v. YOLO: exclusion for first-party disclosures, even if they aren’t part of a contract.
17. Doe v. Twitter: exclusion for alleged breaches of “reporting mechanism architecture” duty.
18. Doe v. Twitter: exclusion for NCMEC reporting.
19. FTC v. Accusearch: exclusion for developing illegal content.
20. Diamond Ranch Academy v. Filer: exclusion for selectively reposting third-party content.
21. E-Ventures Worldwide v. Google: exclusion for failing to act in good faith.
22. TikTok v. Anderson: any effort to curate third-party content automatically converts third-party content into first-party content so that it no longer qualifies for § 230.
23. Oberdorf v. Amazon: to the extent that negligence and strict liability claims rely on a service’s role as an actor in the sales process, they are not barred by § 230. 
24. Anthony v. Yahoo: § 230 on its face does not apply to the allegation that the service created content itself.
25. Fraley v. Facebook: website’s presentation of third-party content constituted unauthorized endorsement.
26. Forrest v. Meta: automated ad tools could potentially contribute to illegal content.
27. Airbnb v. San Francisco: § 230 does not protect Airbnb from regulation of Airbnb’s provision of “booking services.”
28. GG v. Salesforce: misapplying § 230 and finding tertiary liability.
29. FTC v. LeadClick: finding § 230 to not apply based on novel theories of “discourse” promotion, “neutral assistance” and content “development.”
30. Liapes v. Facebook: exception for “content shaping.”

As evidenced by the listed cases and critically, the law itself, Section 230 is not a free pass for digital services to do as they please; it is a key pillar of the internet’s function of connection and communication. Three decades on, Section 230 remains neither a relic nor a tool for blanket immunity, but a carefully calibrated statute that courts continue to interpret, refine, and, in the above instances, limit. On its 30th anniversary, the real question is not whether Section 230 creates a “get-out-of-jail-free card” or “lawless no-man’s-land,” but whether policymakers will engage with what the law actually says and how courts actually apply it, rather than the persistent myths that surround it. 

You can read this post to learn more about what Section 230 really is.