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It is an unfortunate truth that First Amendment rights have become increasingly politicized. Subsequently, there are more misconceptions about the First Amendment and a reluctance around exercising these rights.

Only 30% of college students know that most hate speech is protected under the First Amendment, according to a Knight Foundation survey. And the situation, it appears, is not improving. Heterodox Academy found that the percentage of students who reported they were reluctant to discuss politics went up from 32% in 2019 to 41% in 2020. Misconceptions compounded with reluctance to speak out serve only to deepen political divides and create further confusion about the First Amendment.

The First Amendment only pertains to stopping government censorship. Its main role is to protect citizens from institutional censorship and allow them to debate and find truths for themselves instead of being told by those in power what to believe. Because public universities are extensions of the government and most private schools commit themselves to upholding free speech rights, this intent should carry over to most college campuses.

In theory, preserving First Amendment rights should be a main priority for all students and a touchstone of bipartisan actions.

Contrary to this, the organization I work for, the Foundation for Individual Rights in Education (FIRE), sees cases of students calling on their universities to step in and censor other students and to institutionalize what is and is not allowed to be discussed on campus.From student governments denying recognition of controversial groups to students calling for speakers of every political background to be disinvited, we have seen it all. While the censorship direction may change from case to case, a common theme involves students leaning on their administrations to regulate speech they disfavor rather than embracing opportunities for discourse.

While there should be a larger push among high school educators to teach more about civics so that students do not enter college without a foundational knowledge of their rights (and, in fact, there are many resources to help with this), this does not leave universities off the hook.

To ensure an open and robust campus climate for free expression, incoming students need to understand the importance of exercising their First Amendment rights and respecting the rights of others from day one. Fortunately, there is a venue already in place where this education can occur: first-year student orientations and other first-year experience programming.

By utilizing some time during these programs, schools can get ahead of any future speech-related controversies and make sure their students have the correct understanding of their rights and tools for expressing themselves within the bounds of the First Amendment.

FIRE saw requests for assistance from students and faculty alleging rights violations increase from 654 in 2018 to 1,001 in 2020, and in 2020 our output of letters in support of faculty and students more than doubled from 2019. We know firsthand that this kind of education is desperately needed and will help to mitigate this new wave of censorship.

In fact, the legislatures of Alabama, Arizona, Arkansas, Louisiana, North Carolina, Ohio, Oklahoma, Tennessee, Texas, and West Virginia already require some amount of free speech education to be presented to new students. These requirements span from explicitly requiring first-year student orientations to directly address free expression (like in North Carolina) to only requiring students be given a copy of the schools policies (like in Texas).

Any such programming should have a strong emphasis not only on clearly communicating what is and is not protected under the First Amendment, but why the First Amendment is a tool for those on all parts of the political spectrum and programming should give students tools for expressing themselves.

While the First Amendment and the law should be taught in this venue, browbeating students with facts only goes so far. Universities should offer solutions students can utilize instead of asking their administrations to censor uncomfortable ideas. New students are typically much more eager to participate in campus culture, so offering them ways to use their voices such as writing op-eds, holding counter-protests, hosting round table discussions, and forming their own student groups during orientation programming is the perfect way to help channel their excited energy.

Additionally, while discussions about censorship on campus are often framed as Conservatives vs. Liberals, this framing does not capture the full picture of censorship on campus, and frankly, is not particularly helpful to students. Universities should be mindful of this when discussing free speech. The First Amendment is important to all political identities (even apolitical students), and schools should look to highlight instances of students coming together through bipartisan coalitions for common goals.

For example, in FIREs orientation materials (which were developed in partnership with New York Universitys First Amendment Watch), one story we chose to highlight is a case from the University of Rhode Island in which the universitys student senate refused to fund political or religious student groups because they were under the false impression that funding them would endanger the student senates tax-exempt status.This policy was abandoned only when five separate student groups who had been denied funding, including the campus chapters of the College Republicans and College Democrats, came together to challenge the discriminatory funding methods. These kinds of examples show how First Amendment rights allow students on all sides to stand up to those in power and prove that standing in solidarity with those you vehemently disagree with can be a powerful tool.

Given that most universities had to scramble to operate their orientations and first-year experience programming remotely or semi-remotely last year and given the hopeful atmosphere around being able to return to greater normalcy next fall, this is the perfect time to revisit these programs. Reinventing orientation to teach students to exercise their rights and foster a campus culture that values diversity of thought will help students not only get the most out of their college experience but create empowered citizens.

This article is part of Divided We Falls Constitutional Questions series, covering a range of political topics fundamental to the U.S. Constitution and democratic institutions. Through this series, we ask constitutional scholars, journalists, elected officials, and activists to discuss how these ideals are and are not implemented today. If you liked this piece, you can read more like it here.

Jackie Farmer

Jackie Farmer graduated in 2015 magna cum laude from Drexel University with Bachelor of Science degrees in political science and environmental studies. She began working for FIRE in 2014 as a Program Assistant via Drexels cooperative education program. She now serves as the Outreach Officer for FIREs Targeted Advocacy department. Jackies interest in free speech stems from her love of political satire and previous involvement in student activism.

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Universities Must Lead with First Amendment Education - Divided We Fall

Just over 47% of Hawaii is fully vaccinated. This is not herd immunity not even close.

Wearing a mask has proven globally to work in the fight against COVID-19. We also know that the honor system of vaccinated people going maskless will not be respected and that the unvaccinated will exploit this, as there isnt a way to determine who is or isnt vaccinated.

Therefore, please get vaccinated and please continue to wear a mask so that we dont have to ever shut down our economy again. We are very close to beating back this pandemic. Lets do it together.

Amy Day

Makiki

Clean-energy batteries pose disposal problem

Scott G. Gier brought up some good points (Clean energy creates a mountain of waste, Star-Advertiser, Letters, May 4).

With more electric vehicles and photovoltaic systems coming, in the future there will be an enormous number of batteries that need to be disposed. How will governments and industry handle this problem? Is there a plan? Arent environmentalist concerned about this? Will it just create a different environmental nightmare?

I am sure there are many municipalities just like Honolulu with very serious waste-disposal problems. If the batteries cant be burned in a facility like H-POWER, how will they be disposed?

Gier also brings up the point that mining the metals to make the batteries will affect Third World cultures and environments, and usually not in a good way.

Phil Alencastre

St. Louis Heights

Let seniors continue mail-in license renewals

I read that Honolulu County will suspend mail-in drivers license renewals for license holders 72 and up whose gold star documents are already on file, effective June 1 (Why is Honolulu County scrapping popular by-mail renewal for certain drivers licenses?, Star-Advertiser, Kokua Line, May 27).

The reason for the change reportedly is that it was tying up staff needed to serve customers in person. What? I could turn that argument around and say we should encourage renewal by mail to reduce the waiting line for renewals, and to avoid wasting time and gas to get to the renewal locations.

This very popular option should be continued. I hope the city Department of Customer Services rethinks its decision.

Louis Faulkner

Hawaii Kai

Estimate all cost factors in rail wheel, track issue

In regards to the rail cost estimates of between $2 million for wheel changes and more than $5 million for new frogs, the big picture should be considered (Search continues to fix Oahu rails too-narrow wheels and too-wide tracks, Star-Advertiser, May 16).

If Hitachi will be paid $130,000 for each day of delay, that means for every month that delay amounts to about $4 million. An explanation of that delay cost with avoided operating costs would help the public understand the situation.

New wheels create a heavier car that costs more to operate. The Honolulu Authority for Rapid Transportation has mileage projections for the first 20 years of operation, and knows how much energy it takes to propel the current trains down the track. HART can determine the additional costs of operating heavier cars.

Probable long-term energy costs could be another factor. Cost forecasts are available from Hawaiian Electric.

If these costs are presented, it would help the public appreciate the factors HART will consider in this decision.

Jon Yanagida

Mililani

First Amendment allows for Trumps many lies

What exactly is the right to free speech granted by the First Amendment? Does it give any citizen the right to say anything about anybody at any time?

Can you say, in public, that you will kill the president of the United States, or the speaker of the House of Representative or majority leader of the Senate, or the governor of your state, and walk free? I dont think so.

Can you repeatedly make a false statement such as former President Barack Obama was not born in Hawaii and walk free? The simple answer is yes. It was repeated over and over by Donald Trump and was accepted as fact. A lie repeated and repeated will finally be accepted as true. Unfortunately, this same person kept repeating, from August 2020, that if he lost the election it was because of fraud. Millions of Americans actually believe this today.

I must give Trump credit, as his lies and generalized statements not backed by facts have his supporters hoping that he will enter and win the 2024 presidential election.

Gilbert Horita

Ala Moana

Name McKinley after the composer, not president

To solve the school name controversy, my suggestion is to rename the school William T. McKinley High School after the American composer, William Thomas McKinley, who passed away in 2015. His many compositions of symphonies and concertos spanning 40-plus years are known in the classical music world. His Elegy for Strings is to me most notable.

My suggestion solves several problems.

>> It eliminates the tainted President William McKinley High School name.

>> The name William T. McKinley High School would celebrate someone from the arts. McKinley High School has had a solid music program.

>> It preserves the tradition of eight generations of alumni who proudly call themselves McKinley grads.

Von Kenric Kaneshiro

Downtown Honolulu

Unrest and guns lead to violent confrontations

Russias plan is a simple one.

Step 1: Continue to promote political divisiveness through social and other media, then wait until other states follow Texas lead with no-permit-needed open firearms carry.

Step 2: Just sit back and enjoy the action while every road rage incident, political argument and perceived slight sets off a self-generated population reduction scheme among the most well-armed civilian population in history.

Harold Senter

Aina Haina

EXPRESS YOURSELF

The Honolulu Star-Advertiser welcomes all opinions. Want your voice to be heard? Submit a letter to the editor.

>> Write us: We welcome letters up to 150 words, and guest columns of 500-600 words. We reserve the right to edit for clarity and length. Include your name, address and daytime phone number.

>> Mail: Letters to the Editor, Honolulu Star-Advertiser 7 Waterfront Plaza, 500 Ala Moana, Suite 210 Honolulu, HI 96813

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Letters: Get vaccinated, and keep wearing that mask; First Amendment allows for Trumps many lies; Unrest and guns lead to violent confrontations -...

The original cover of Jewell Parker Rhodes' novel, Magic City. Courtesy of Harper Collins hide caption

The original cover of Jewell Parker Rhodes' novel, Magic City.

In the early 1900s, Greenwood a Black neighborhood in Tulsa, Okla. was a thriving, successful, independent town. But on May 31, 1921, a mob of white people stormed the town, killing an estimated 300 people, burning down homes and businesses, and leaving thousands homeless. There are competing theories as to what ultimately incited what came to be known as the Tulsa Race Massacre but author Jewell Parker Rhodes says it was likely related to the perception that Black people "shouldn't be educated, shouldn't be uppity, shouldn't be, enjoying this kind of success."

Parker Rhodes is an acclaimed novelist and children's book author whose work often involves African American history. Her adult novels have focused on Antebellum New Orleans (Voodoo Dreams) and the secret life of famed abolitionist Frederick Douglass (Douglass' Women). Her young people's fiction (Black Brother, Black Brother; Towers Falling; Ninth Ward) tackles nightmarish subjects, like racism, violence and disaster, without giving children nightmares.

Parker Rhodes had wanted to write about the Tulsa Race Massacre for years, but because the subject made some people so uncomfortable including publishers she had to wait for several years to finally publish her novel on the topic, Magic City. It's a fictionalized retelling of the events surrounding the massacre, and it's been reissued in recognition of the Tulsa Race Massacre's centennial observances.

So ahead of the 100 year anniversary of the tragic events in Greenwood, I spoke to Parker Rhodes about why the story still resonates, and how Tulsans are coping with the aftermath of a century-old trauma. This interview has been edited for clarity and length.

What was Tulsa, Oklahoma like in 1921?

Tulsa in particular was anti-union, anti-Black, anti-Native American, anti-Communist. And just before the Greenwood massacre, there was an incident in which a young Jewish man was lynched and burned. So this was a truly lawless city where people who held power and money ruled.

One theory for why the massacre happened is that the city actually wanted to put a railroad through Greenwood. So they figured, "What's the best way? Give me an excuse so we can destroy your community."

Using infrastructure to debilitate Black communities has gone on through the twentieth and the twenty-first century so far.

The incident that allegedly started all this violence was a rumored assault of a white teenager by a Black teenager. Except the young woman in question, Sarah Page, did not press charges against Dick Rowland; she insisted there was no assault.

Right. She was a white woman who said, "No, you are not going to use my gender, my body as an excuse to assault a black man." And as far as I know, in terms of history, that was a rarity.

After rumors of an assault spread, Dick Rowland was taken into protective custody. A mob of white men descended upon the jail; they wanted to lynch him on the spot. But something stopped them. What?

Black men who knew what it was to defend civil rights and civil liberties, most of them veterans, came to the courthouse and said, "Oh, no, you have to give him due process." And apparently somebody asked a young Black man, 'what are you doing with that gun?' And the fellow responded, "Well, I'm going to use it if I have to." Somewhere in there a shot was fired no one knows by whom and boom! That started the violence and the rioting.

But we should point out that the rioting was one-sided, right? It was whites rampaging through Greenwood, looting, then burning Black families' homes.

Yes. With no consequences. Interestingly enough, I remember being in Oklahoma when Timothy McVeigh was sentenced for his white terrorism action, for bombing the Murrah Federal Building in 1995; 168 people died in Oklahoma City. [McVeigh was tried and executed in 2001.] And now I've lived through the January 6 attack on the Capitol, and it seems as though the Justice Department is really pursuing the white terrorists who were involved in that. But the terrorists who, 100 years ago, destroyed Greenwood have never, ever been brought to justice. They have never even been named. And it's so typical that, in terms of getting justice for African Americans and other oppressed groups, that your story can go untold, ignored, not brought to justice until it affects more directly, you know, the master community.

Part of the reason Tulsa had so much racial tension was because Oklahoma, and Tulsa in particular, had a lot of Ku Klux Klan activity. I've been told that the Klan had been on the wane, but when Black World War l veterans returned home with firearms skills and a determination to press for their full citizenship, suddenly Klan membership quickly increased?

The only time I've seen the Ku Klux Klan was in Tulsa, Oklahoma, when I was doing research for Magic City. This was about 1984. I was so appalled!

My young daughter was with me. I did point out to her that there were men, women, white and of color, police officers who were protecting the right of assembly of the KKK. And that that was our country, you know, showing its commitment to the First Amendment. But we still need to show our commitment to uncovering the legacy of all the things that have happened to people.

You've mentioned that initially, this book had a hard time being placed with a publisher. And that when it was published in 1997, a glowing review that was slated for a Tulsa paper suddenly...disappeared?

That review never, ever was published. Later, when I met the editor of the Tulsa World, she said to me, "Oh, it's not personal." And I thought it was very personal, because we had had great evidence that Tulsa was still not ready to reckon with its racial history. A dear friend of mine who actually did a book review in the Arizona newspapers, she confessed to me after about a year that she had gotten hate mail. People were threatening her simply because she wrote a review about a fictional retelling of an actual incident that happened in Tulsa.

Some white people just wanted to forget or ignore that the massacre in Greenwood had ever happened. But we've also heard from some Black people who say they grew up in Greenwood and had never been told that story. Why?

The updated cover of Magic City, by Jewell Parker Rhodes. Courtesy of Harper Collins hide caption

I think Greenwood is just now coming out of that sense of trauma. If you can imagine in the 1920s how vulnerable the community felt and not only did they have the massacre to contend with, but afterwards, the White House put them in a tent city and made them have I.D. cards in order to go back and forth to work. They had an internment camp. So some people did not tell their story. Some told it in whispers. And some tried to bury and forget. All are natural responses to trauma.

We can't judge the trauma that people felt in the 1920s. Do you know what I mean? So that's why you had a lot of Black kids being raised in Greenwood who didn't know about the Tulsa massacre. They weren't told. It was harder to speak truth to power in the 1920s. Some did it, but we can't begin to guess at the trauma and the fear.

Does this centennial help or hurt people still coping with the aftermath of Greenwood, generations later?

If it could be fixed with one memorial, one celebration, we would have all of our problems fixed so easily. I think it's going to take a lot more hard work. But I think now that the voices have been raised, that art is being created, we will at least be able to say that Greenwood will never, ever be forgotten. That it is a story that has had its time to be felt and heard, and it will continue to resonate.

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In Both Fact And Fiction, The Truth Of Tulsa Is Hard To Stomach - NPR

In brief: An engineer has filed a lawsuit against the Minnesota licensing board for taking retaliatory disciplinary action against him after he referred to himself as a "professional engineer." The lawsuit claims that the Board violated his First Amendment right to free speech.

Correction (5/25/21): A spokesperson informed TechSpot that the Minnesota Board of Licensure has not issued an official statement on whether or not Marohn can use the term "professional engineer" now that his license is renewed. Instead, the Board is trying to discredit his word as a reformer, by labeling him a fraud.

"They are using the lapse in his license as an opportunity to enact disproportionate disciplinary action, labelling Marohn as a fraud in order to discredit his reform work," the spokesperson said.

We apologize for any confusion this mistake may have caused.

The original story follows below:

Charles Marohn is the founder of the engineering reform group Strong Towns. While he has not practiced his profession since 2012, he remains licensed in Minnesota. His focus these days is to reform the industry's outdated practices and "dogma." He has lectured and published papers critical of the industry's current standards.

In March of last year, an engineer in South Dakota, where Marohn had spoken several times, filed a complaint against him with the Minnesota Board of Licensure. The filing noted that in certain speeches and writings, Marohn referred to himself as a "professional engineer" during a lapse in his license.

The Board sat on the complaint for several months without notifying him. During that time, Marohn realized his license had lapsed and renewed it. Six weeks later, the licensing Board finally approached him about practicing without a license. He proved that he had not engaged in any engineering work, nor had he signed any papers requiring licensure during the lapse, but the Board didn't let it go.

Marohn's filing via Strong Towns

Without a legal avenue to censure Marohn for practicing without a license, the Board turned its attention to his use of the term "professional engineer." They contend that he cannot describe himself as such in his work as a reformer even though he is licensed. The Board told Marohn that he must sign a stipulation order admitting that he engaged in "conduct involving dishonesty, fraud, deceit, or misrepresentation." If he refused, he would face disciplinary action. He filed a lawsuit instead.

"Engineers need to be able to speak their conscience without having their license and their livelihood threatened," Marohn said in a statement. "The Board's actions are an injustice to all Minnesotans and, if left unchallenged, will have a chilling effect on speech within the engineering profession,"

Marohn's case is not the first time we have seen a state licensing board take action against someone's use of the word engineer. Mats Jrlstrm faced similar fines and injunctions in Oregon in 2017. He filed suit against the Oregon State Board of Examiners for Engineering and Land Surveying for freedom of speech violations. In 2019, a federal judge ruled that the Board had a "history of overzealous enforcement actions" and called its restrictions on the use of the word engineer "substantially overbroad in violation of the First Amendment."

Image credit: Strong Towns

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Minnesota engineering board faces First Amendment lawsuit over the use of the word "engineer" - TechSpot

The Communications Decency Act of 1996 (CDA) was a landmark law enacted to regulate content on the internet. The purpose of the legislation was to regulate indecent and obscene material online, but it is most relevant today for Section 230a provision that protects online platforms from liability in a variety of circumstances involving third-party use of their services. While Section 230 is often credited with allowing the internet to flourish in the late 1990s and the early 21th century, it has been the subject of calls for amendment from across the political spectrum as courts and online platforms attempt to fit the law to the modern internet. In particular, a rash of bills in 2020 targeted the law, specifically in the context of immunity for content-moderation decisionsan application that has become more heavily scrutinized as service providers attempt to curb abusive content and critics raise concerns of censorship.

This article addresses the evolving landscape for online platforms seeking to moderate content while limiting litigation risk.

Background: The CDA and Section 230

Shortly after the CDA was enacted, it faced First Amendment challenges to its provisions that prohibited the transmission of obscene or indecent content to minors. The U.S. Supreme Court held the anti-indecency provision of the statute unconstitutional in Reno v. American Civil Liberties Union, but held that provision to be severable from the rest of the law, allowing Section 230 to stand.

Now, Section 230 is the principal legal protection afforded to online platforms from lawsuits over content posted by their users. It contains three provisions specifying when platforms will be immune from suit: first, in Subsection (c)(1) as a publisher; second, in Subsection (c)(2)(A) for the Good Samaritan removal or filtering of content; and third, in Subsection (c)(2)(B) as a provider of the technical means to restrict content.

Subsection (c)(1) states: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. It is concerned with liability arising from information provided online, but as stated in Barrett v. Rosenthal, [l]iability for censoring content is not ordinarily associated with the defendant's status as publisher or speaker.

Subsection (c)(2) provides immunity for moderation or alleged censorship scenarios, stating: No provider or user of an interactive computer service shall be held liable on account of: (a) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (b) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

Courts have interpreted Subsection (c)(1) broadly as providing immunity to online platforms, both from suits over content posted by their users and for their removal of content from their sites. In a key early decision involving allegedly defamatory messages on a message board, Zeran v. America Online, the U.S. Court of Appeals for the Fourth Circuit held that Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functionssuch as deciding whether to publish, withdraw, postpone or alter contentare barred. This immunity is generally not limited to particular causes of action, and because Section 230 preempts state law where inconsistent, Section (c)(1) is a defense to state tort and contract claims as well as federal lawsuits.

Subsection (c)(1) is not an absolute bar to litigation for third-party content on online platforms, however. In a critical decision denying Section 230 immunity, Fair Housing Council of San Fernando Valley v. Roommates.com, the U.S. Court of Appeals for the Ninth Circuit held that Section 230 did not preempt claims under the Fair Housing Act and state housing discrimination laws where a roommate-matching service required users to answer a questionnaire with criteria such as sex, sexual orientation and whether they will bring children to the household. The Ninth Circuit, noting that Section 230 was not meant to create a lawless no-mans-land on the Internet, found that the questionnaire was designed to force subscribers to divulge protected characteristics and discriminatory preferencesin other words, the defendant was a developer of an allegedly discriminatory system because it elicited content from users and made use of it in conducting its business based on allegedly illegal criteria. The Ninth Circuit contrasted this with cases in which immunity was upheldincluding where websites used neutral tools that did absolutely nothing to enhance the defamatory sting of the message, to encourage defamation or to make defamation easier, such as allowing users to filter dating profiles based on voluntary user inputs. Notably, the Ninth Circuit did apply Section 230 immunity to the additional comments section of users profiles, where users were merely encouraged to provide information about themselves; even though the lawsuit pointed to instances where users input race or religious requirements into this section, the Ninth Circuit noted that Roomates.com only passively published these comments as written, which is precisely what Section 230 protects.

Additionally, the Ninth Circuit has held that failure to warn cases are not preempted by Section 230. In Doe v. Internet Brands, the plaintiff alleged that two individuals were using a modeling website to pose as talent agents and find, contact and lure targets for a rape scheme. The defendant allegedly knew about these particular individuals and how they were using the website, but failed to warn users about the risk of being victimized. The Ninth Circuit determined the critical question under Subsection (c)(1) to be whether the allegations depended on construing the defendant as a publisher (i.e., whether the claims arose from the defendants failure to remove content from the website). The Ninth Circuit noted that, in these circumstances, the marginal chilling effect of allowing such a claim to proceed did not warrant turning Section 230 into an all purpose get-out-of-jail-free card, nor would it discourage Good Samaritan filtering of third party content.

Further, in May 2021, the Ninth Circuit reversed a district courts dismissal based on Section 230 immunity in Lemmon v. Snap. Parents of three boys ages 1720 killed in a car accident sued the maker of Snapchat for its Speed Filteran overlay users could add to photos and videos that shows their speed. The parents alleged that one of the boys opened the app shortly before the crash to document their speed (at one point over 123 miles per hour) and that Snap allowed this feature notwithstanding (untrue) rumors that users would receive a reward for reaching over 100 miles per hour in the app. The Ninth Circuit held that the negligent-design claim did not seek to hold Snap liable for its conduct as a publisher or speaker and [t]he duty to design a reasonably safe product is fully independent of Snap's role in monitoring or publishing third-party content, thus Subsection (c)(1) did not apply. Separately, the Ninth Circuit held Subsection (c)(1) inapplicable because Snap designed the Speed Filter and reward system at issue, so the claim did not rely on information provided by another information content provider. Though the implications of this holding are yet to be seen, the Ninth Circuit attempted to constrain it to true defective design cases; the allegations did not depend on the content of any messages actually transmitted, so this was not a case of creative pleading designed to circumvent CDA immunity.

The breadth of immunity provided by Section 230 has also been pared back by subsequent legislation. In 2018, largely as a response to Backpage.com prevailing on Section 230 immunity in litigation concerning sex trafficking, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), was signed into law, amending Section 230 to eliminate platforms immunity from prosecution for violating certain state sex trafficking laws. It also eliminated platforms immunity from civil suits brought by victims of sex trafficking for knowingly promoting and facilitating sex trafficking. Notably, the text of FOSTA states that it does not apply to Subsection (c)(2).

Section 230 and Content Moderation

While Subsection (c)(1) was a paradigm shift in terms of making the internet a unique forum in which content could be hosted and accessed without traditional publisher liability applying to service platforms, Subsection (c)(2) has also been essential in forming the legal landscape for social media and other online spaces. Because both provisions of Subsection (c)(2) concern content removal, it has been particularly relevant in recent years as more people, including politicians and other public figures, participate in online communities. Subsection (c)(2) has not been the deciding factor for many cases to date, but disputes concerning content moderation issues are likely to proliferate.

Several courts have held that Subsection (c)(2) immunizes online platforms from liability for content removal decisions, though it is case-dependent whether such claims can survive the pleading stage. For example, this year, the U.S. Court of Appeals for the Second Circuit applied Subsection (c)(2) to affirm the dismissal at the pleading stage of claims brought against a video sharing site over the sites removal of the plaintiffs videos promoting sexual orientation change efforts. In Domen v. Vimeo, the court noted that Subsection (c)(2) is a broad provision that forecloses civil liability where providers restrict access to content that they consider objectionable. The Second Circuit found that the plaintiff had not pleaded that Vimeo had acted in bad faith because there were no plausible allegations that Vimeos actions were anti-competitive conduct or self-serving behavior in the name of content regulation, as opposed to a straightforward consequence of Vimeos content policies.

Similarly, a case in the U.S. District Court for the Northern District of California, Daniels v. Alphabet, held that Subsection (c)(2)(A) barred nearly all of the plaintiffs claims regarding removal of his videos from YouTube and alleged restriction of his account, noting that the plaintiff himself acknowledged that the defendants reason for removal was that the videos violated YouTubes Community Guidelines and YouTubes policy on harassment and bullying. The plaintiffs conclusory assertions of bad faith were insufficient to overcome the discretion afforded by Subsection (c)(2)(A). This decision and the ruling in Vimeo demonstrate that the good-faith removal defense can be successfully raised at the pleading stage, though defendants may have more trouble doing so where plaintiffs bring more specific allegations of bad faith.

Conversely, the Ninth Circuit in Enigma Software Group USA v. Malwarebytes held that a security software company was not entitled to immunity under Subsection (c)(2)(B) at the pleading stage where the plaintiff alleged that Malwarebytess software blocked the installation or use of its security software for anti-competitive purposes. There, the Ninth Circuit found that the complaint plausibly alleged the companies were direct competitors. It reversed the district courts finding of immunity and remanded the case to the district court, holding that the anticompetitive allegations were sufficient to survive dismissal at the pleading stage.

Numerous other cases have dispensed with content moderation or account removal allegations against by applying Subsection (c)(2), often in the social media context and with little analysis of the good faith requirement. Additionally, several courts have applied Subsection (c)(1) to removal decisions on the theory that removing or withholding content from a platform is a typical publisher decision, which is protected by Subsection (c)(1). Though this approach sidesteps the good-faith analysis built into Subsection (c)(2), there does not appear to be a consistent approach among courts regarding when to apply Subsection (c)(1) to moderation or removal decisions, and it remains to be seen how reliably courts will take this more-protective route.

Potential Changes to Section 230

Outside of the courts, content moderation has been hotly contested across the political spectrum. Generally, proposed bills have divided on party lines. Democrats have sought to protect providers ability to remove hate speech and offensive content while leaving open liability in the anti-discrimination context, and Republicans have sought to impose more First Amendment-like restrictions on what providers can remove.

The Senate Committee on Commerce, Science, and Transportation held a hearing in October 2020 to address Section 230 with executives from Twitter, Facebook and Google present, in which senators addressed issues ranging from political censorship to the spreading of misinformation. While Subsection (c)(2) currently protects platforms decisions to remove, label or restrict the spread of content they deem to be damaging in some way, some senators pressed the companies representatives to explain the reasoning behind the removal or restriction of various specific posts. Senator Roger Wicker (R-MS), providing the majority opening statement, acknowledged the role Section 230 played in enabling the growth of the internet but also claimed it has also given these internet platforms the ability to control, stifle, and even censor content in whatever manner meets their respective standards, and [t]he time has come for that free pass to end. He also pointed to instances of removal that he characterized as inconsistent or evincing political bias. Senator Maria Cantwell (D-WA), in the minority opening statement, focused on enabling platforms to remove hate speech or misinformation related to health and public safety.

In March 2021, Facebook CEO Mark Zuckerberg argued before the House Committee on Energy and Commerce that Section 230 immunity should be reduced in favor of platforms being required to demonstrate that they have systems in place for identifying unlawful content and removing it. His proposal contemplated a third party that would set standards for what would constitute an adequate system, proportionate to the size of the provider at issue. Additionally, Mr. Zuckerberg advocated for more transparency into how platforms decide to remove harmful but legal content.

Since 2020, numerous bills have been introduced that would further pare back the immunity Section 230 provides to platforms, both for removing and for failing to remove certain categories of third-party content. One example is the Safeguarding Against Fraud, Exploitation, Threats, Extremism and Consumer Harms (SAFE TECH) Act, introduced by Senators Mark Warner (D-VA), Mazie Hirono (D-HI) and Amy Klobuchar (D-MN). This bill proposes to limit immunity in cases involving, among other things, civil rights or discrimination, antitrust, stalking, harassment, intimidation, international human rights law or wrongful death. It would also make Section 230 an affirmative defenserather than a pleading-stage immunityand would make it unavailable to defendants challenging a preliminary injunction). Another example is the Platform Accountability and Consumer Transparency (PACT) Act, which has received some bipartisan support. This bill seeks to set certain requirements for platforms takedown processes and provides state attorneys general as well as the Federal Trade Commission with certain enforcement authority. Several other bills have been introduced with similar focus on stripping immunity based on the subject matter of litigation or based on the practices of the platform. The Biden Administration has not taken an official position on Section 230.

Conclusion

While Section 230 remains the predominant legal protection for online platforms moderating content in good faith, courts are beginning to engage more regularly with these issues, and recent decisions signal that defendants may have difficulty relying on Subsection (c)(2) immunity to dispose of well-pled suits at the pleading stage. Further, many cases that have been dismissed above on Subsection (c)(2) grounds may have survived under new proposed legislation. Section 230 reform may introduce uncertainty to online platforms litigation risk, so content providers should remain aware of the shifting landscape for this critical legal protection.

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