Congress enacted the Communications Decency Act, 47 U.S.C. § 230 (CDA), in 1996 in part to overturn Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, (N.Y. Sup. Ct. May 24, 1995), which allowed providers and users of interactive computer services to be treated as “publishers or speakers of content that is not their own because they have restricted access to objectionable material.” S. Rep. No. 104-230 (1996). Section 230 thus 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.” Additionally, § 230 was passed to facilitate growth in the emerging internet industry at the time. Since its inception, the internet industry has grown exponentially, leaving companies like Facebook, Twitter, Twitch, and more with immense power and wealth. Thus, the liability protections that were once thought necessary in 1996, would seem no longer essential to allow for growth in this sector. Section 230 has resulted in a great deal of criticism, as it thus far had permitted internet companies to exercise some control over content, arguably for partisan reasons. In response, President Trump has vetoed a major defense authorization bill (likely to be overridden) in part for failing to eliminate § 230. In this article, we explore another effect of § 230—that several court decisions have invoked the provision as a basis for limiting rights against discrimination in public accommodations.
We think the fundamental error of the courts is to treat § 230 as an absolute exemption from nearly all federal laws. Nothing in § 230 says this; it speaks only in terms of who is the “publisher” or “speaker” of online content provided by a third party. The provision has implications for liability that turns on whether someone is a publisher or speaker of content, but does not itself excuse the internet platform from other obligations.
How CDA § 230 Operates
Section 230(c) of the Communications Decency Act (CDA) provides protection for “Good Samaritan” filtering of offensive material online. This prevents companies from being treated as a “publisher or speaker” of any content produced by another information content provider. It also precludes liability when companies act in good faith to restrict “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable [material], whether or not such material is constitutionally protected.” Essentially, this means that companies cannot be held responsible for what third parties post on their publicly accessible websites, or for whatever actions the companies decide to take (or not to take) in good faith to filter out offensive content online.
Are Websites Public Accommodations under Federal Law?
As outlined in Martinez v. San Diego County Credit Union, 50 Cal App 5th 1048, 1062-1063 (2020), the federal courts are split over whether a website can qualify as a place of public accommodation under federal or state anti-discrimination laws. Courts in the First, Second, and Seventh Circuits agree that “websites are ‘public accommodations’ within the meaning of the [Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12101 et seq.]” (See, e.g., Carparts Distribution Center, Inc., v. Automotive Wholesaler’s Assn., 37 F.3d 12 19-20 (1st Cir. 1994); Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315,1318-19 (S.D. Fla. 2017); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999); Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32 (2d Cir. 1999); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 390-93 (E.D.N.Y. 2017); National Federation of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 567-76 (D. Vt. 2015)). On the other hand, courts in the Third, Sixth, Ninth, and Eleventh Circuits have adopted the view that a website can serve as a public accommodation only when it operates as a discriminatory obstacle to equal access to the company’s physical facilities. See Menkowitz v. Pottstown Memorial Medical Ctr., 154 F.3d 113, 122 (3d Cir. 1998); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1010-14 (6th Cir. 1997); Castillo v. Jo-Ann Stores, LLC, 286 F. Supp. 3d 870, 876-81 (N.D. Ohio 2018); Haynes v. Dunkin’ Donuts, LLC, 741 Fed. Appx. 752, 754 (11th Cir. 2018). The difference in outcome between the courts turns on whether the inclusion of the term “travel service” within the ADA indicates congressional intent for the statute to apply outside of a set physical location. See 42 U.S.C. § 12181; Carparts, 37 F.3d at 19; Andrews, 268 F. Supp. 3d at 396.
Antidiscrimination provisions concerning public accommodations under Title II of the Civil Rights Act of 1964 (CRA) (42 U.S.C. § 2000a et seq.) may be more limited in their reach than under the ADA, because the CRA only enumerates examples of physical facilities; there is no mention of ambiguous terms like “travel services” under the CRA that could signal intent for non-physical location coverage.
Are Public Accommodation Civil Rights Claims Precluded by § 230 of the CDA?
Thus far, only the Ninth Circuit has squarely addressed the issue of whether federal public accommodation claims are barred by § 230 of the CDA. In Sikhs for Justice, Inc. v Facebook, Inc., 697 F. App’x 526 (9th Cir. 2017) (unpublished opinion), a non-profit organization unsuccessfully sued Facebook for discriminating against it by blocking access to the Sikhs for Justice website page in India, based on race, religion, national origin, and ancestry, in violation of Title II of the CRA. On appeal, the Ninth Circuit affirmed, holding that plaintiff’s Title II claim was barred by the CDA, because the Court, “found no authority, and [plaintiff] fails to cite any authority, holding that Title II … provides an exception to the immunity afforded to Facebook under the CDA.”
The Ninth Circuit also indirectly discussed the issue at hand in Fair Housing Council v Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008). In that case, the court held an online roommate pairing operator, responsible for designing its website around discriminatory roommate questionnaires and choices of answers, operated in violation of the Fair Housing Act 42 U.S.C. § 3694(c). The appeals court cautioned the website was entitled to immunity for any comments posted by site users without any discriminatory prompts from the company: “The message to website operators is clear: If you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune.” The court’s approach here is consistent with denying individuals protection in federal public accommodations cases: even if a website is rife with discrimination, as long as the company is merely publishing the content created by its users and not interfering with the posts in any way, it will receive CDA immunity. This means that websites are unlike physical public accommodations in person, where establishments are responsible for creating a discrimination-free public setting. Rather, these websites are merely responsible for offering “neutral tools to post content online,” so that they may, “police that content without fear [of liability] for every single message posted by third parties on their website.”
Subsequently, in FTC v Accusearch, Inc., 570 F.3d 1187 (10th Cir. 2009), the court of appeals agreed that CDA immunity from liability is inapplicable only if the company is “responsible, in whole or in part, for the creation or development of information” which is the source of the liability. The court explained that “a service provider is ‘responsible’ for the development of offensive content only if it in some way specifically encourages development of what is offensive about the content.”
Finally, in a case similar to Fair Housing Council in the Seventh Circuit, a plaintiff sued Craigslist under the Fair Housing Act for allowing discriminatory roommate postings by third parties online, but the court found Craigslist protected under the CDA: “§ 230(c)(1) says … that an online information system must not ‘be treated as the publisher or speaker of any information provided by’ someone else.” Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008). The court of appeals reasoned that an interactive computer service provider maintains § 230 liability protection if it “causes [discriminatory] postings only in the sense of providing a place where people can post.” If this reasoning is extended to other federal civil rights laws, public accommodations claims will also be fully precluded by the CDA.
Where Courts Have Gone Wrong
The courts, in our view, are applying § 230 immunity much too broadly. Most holdings rest on one simplistic notion: recognizing CDA immunity in any situation where the company is acting as a publisher by deciding whether to allow or block third-party content on their platforms. However, this reasoning should not preclude public accommodations claims, because those claims rest on a completely different premise. The CRA and the ADA provide that individuals should be entitled to equal access and enjoyment of the goods and services which public accommodations offer, without being subjected to discrimination based on race, color, religion, and national origin, or disability status, respectively. Therefore, website owners would not be held liable in this context for acting as publishers. Rather, they would be liable for acting as owners or providers of public accommodation spaces, and failing to prevent discrimination against and equal access for members of these protected groups. Just because websites operate online rather than in person, they are still responsible for federal civil rights violations within their spaces. Nearly any action—or lack thereof—by companies can somehow be construed as deciding what to publish in the sense of allowing the content on company sites; for any content to be accessible online, a company ultimately has to make a decision about what should be published or not. However, Congress could not have intended for § 230 to create a lawless space, where companies are no longer responsible for protecting users’ civil rights online. As American society moves increasingly online, § 230 must be read more narrowly, with goals of safeguarding individual civil rights in an already prolific internet sector.
Our approach aligns perfectly with the well-established “implied repeals are not favored” canon of statutory construction: “Implied repeals are not favored; and if effect can reasonably be given to both statutes, the presumption is that the earlier is intended to remain in force.” In these matters, the text and intent of the ADA and CRA can no longer be realized, because they are effectively precluded by CDA immunity, acting as a sort of “implied repeal.” There is no indication in the text or legislative history of the CDA, however, that Congress intended to affect rights under any other federal law which does not predicate liability on who is a “publisher” or “speaker.”
Consider also Justice Clarence Thomas’s concurrence in the October 13, 2020, denial of certiorari in Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, No. 19-284, 208 L. Ed. 2d 197, where the Justice questioned the leeway internet companies have been given in this sphere: “[e]xtending §230 immunity beyond the natural reading of the text can have serious consequences. Before giving companies immunity from civil claims for ‘knowingly host[ing] illegal child pornography,’ … or for race discrimination … we should be certain that is what the law demands.”