Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas

Abstract

The popularization of the Internet has ensured that, for the first time in human history, speech is in a position where it can become truly free. In 1996 Congress, hoping to preserve and promote a vibrant and competitive free marketplace of ideas on the Internet, passed Section 230 of the Communications Decency Act, a controversial statute that grants the owners of private online forums and other Internet intermediaries unprecedented immunity from liability for defamation and related torts committed by third party users. Since then, a fierce debate has raged over how to strike the proper balance between the seemingly competing values of promoting free speech and compensating victims of Internet defamation.This Article argues that this conflict between speech and victim compensation is largely illusory, persisting primarily due to misconceptions about the Internet and nostalgia for the common law. Since these values do not inherently conflict with each other, it is unnecessary to strike a balance between them because Congress can pass legislation enhancing both values without detracting from either. Congress, in order to account for the sudden and unexpected transition from the walled garden intermediaries of the 1990s to the Web 2.0 intermediaries of today, should amend Section 230 to include an attorneys' fee-shifting provision in order to provide the typical Web 2.0 intermediary with an incentive to protect the speech of its users. Similarly, Congress or state governments should create the tort of no-fault defamation to provide the majority of defamation victims with a more cost-effective and efficient means of achieving the vindication they desire. Finally, Congress should consider instituting an insurance scheme or other system to provide compensation to those who have suffered tangible economic loss or irreparable harm as a result of Internet defamation, as well as pass legislation that would reduce the potential negative effects of defamatory Internet speech. These solutions whether implemented individually or as a package would result in a substantial improvement over the status quo, and also produce better, more efficient outcomes than alternate proposals that seek to promote victim compensation at the expense of speech or vice versa.