Section 230 of the Communications Decency Act: Balancing a Free Market Approach with Taking Responsibility

by Sasha Kliger^*

Section 230 of the Communications Decency Act of 1996 confers broad immunity to interactive websites and social media companies for content third parties post on their platforms. This immunity, however, is not unbounded. In section 230, Congress included several exceptions to immunity, including an exception for intellectual property claims, section 230(e)(2). The broad wording of the intellectual property exception has led to confusion among circuits regarding what type of intellectual property claim should remain allowed under section 230: namely, whether state law claims and right of publicity claims qualify as laws pertaining to intellectual property as described in the statute. This Contribution argues that a close look at the language of the statute demonstrates that both types of claims should remain viable against social media companies, despite the general immunity outlined in section 230.

Debates about section 230 of the Communications Decency Act (“CDA”) are playing out in Congress, the public, and the courts. The CDA¹ confers immunity on interactive computer service providers, such as interactive websites and social media platforms, from certain legal claims in order to encourage the development of a free market on the internet, and facilitate the efficient spread of publicly available information and internet services.² Notably, section 230 protects companies from liability specifically for third party content posted on their websites—platforms can still be liable for their own speech.³ In addition, interactive computer service providers can still be liable for certain types of content posted by third parties.⁴ Under the CDA, some claims are excepted from section 230 immunity, such as intellectual property claims and communications privacy claims.⁵

Courts have had trouble coming to a consensus on the scope and meaning of the intellectual property exception.⁶ Section 230(e)(2) of the CDA states: “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.”⁷ Nowhere in the statute does Congress define “law[s] pertaining to intellectual property,” however. This lack of clear definition has led to a split among circuit courts interpreting section 230(e)(2). Courts disagree as to the scope of the clause in several respects, including first, whether the clause refers to both state and federal intellectual property claims, and second, whether right of publicity claims qualify as intellectual property claims.

Traditional methods of statutory interpretation point towards reading section 230(e)(2)—as the Third Circuit did in Hepp v. Facebook⁸—to except both federal and state intellectual property laws from section 230 immunity. For years, a court’s first step in interpreting a statute has been to look at the plain text of the words in the statute,⁹ because Congress is presumed to express its intent through the ordinary meaning of the language it uses.¹⁰ Critically, if Congress included certain words in one section of a statute but not in another section, courts should presume that the omission was intentional.¹¹ Congress made explicit whether other clauses within section 230(e) applied to state, federal, or local laws.¹² This creates a strong indication that the omission of any such descriptor in the intellectual property law exception was intentional. After all, Congress knew it could cabin the application of various clauses to a certain type of law if it wanted to.¹³ Additionally, reading “intellectual property law” in subsection 230(e)(2) to mean “federal intellectual property law” would render explicit references to the word “federal” in other parts of the subsection superfluous. This reading would suggest that the statute refers to federal law by default, making it unnecessary for Congress to have used the word “federal” in other parts of section 230(e). The Supreme Court has expressed a distaste for interpretations of federal statutes that leave some words or phrases superfluous, operating instead on the premise that courts should aim to give effect to “every clause and word.”¹⁴

Additionally, Congress did not simply leave out a modifier or descriptor to the phrase “law pertaining to intellectual property.” Instead, Congress wrote “any law pertaining to intellectual property.” The plain meaning of the word “any” may be broad, but it is not ambiguous. Perhaps struggling to find the correct synonym, the Supreme Court has noted previously that “any” simply means “any.”¹⁵

In reaching the contrary conclusion, and holding that section 230(e)(2) applies only to federal intellectual property law, the Ninth Circuit focused on Congress’s policy goals in passing section 230.¹⁶ In Perfect 10 v. CCBill, the Ninth Circuit noted that “permitting the reach of any particular state’s definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress’s expressed goal of insulating the development of the Internet from the various state-law regimes.”¹⁷ This is, however, a misstatement of Congress’s goals. Congress made its policy objectives clear in section 230(b) of the CDA, writing that, among other things, it is the policy of the United States to “preserve the vibrant and competitive free market . . . for the internet . . . unfettered by Federal or State regulation.”¹⁸ Certainly, Congress wanted to constrain the amount of regulation that might create liability risks for computer service providers by limiting their responsibility for third party content. It cannot be the case, though, that Congress wanted to insulate these providers from all regulation, and even all state law regimes. After all, in parts of section 230(e), Congress noted that immunity shall have no effect on certain types of both federal and state law claims.¹⁹ Section 230 represents Congress’s best efforts at balancing a free market on the internet with a scheme in which social media providers retain some responsibility over the content posted on their platforms.

Some argue that reading section 230(e)(2) to apply to both state and federal intellectual property law would necessarily lead to an untenable situation for social media companies—making it difficult for them to monitor content posted on their platforms, causing disarray, and in turn leading to reduced innovation and a chilling of free speech on the internet.²⁰ The consequences of adhering to plain meaning, however, are not a foregone conclusion. In fact, the First Circuit in 2007 implicitly came to the conclusion that section 230(e)(2) includes state law,²¹ and the Southern District of New York followed suit two years later.²² Still there is no “evidence that the rulings created the disarray [social media platforms] now predict.”²³ Computer service providers are also subject to a patchwork of privacy statutes,²⁴ which are not covered by section 230 immunity,²⁵ and the free market on the internet continues to thrive.

Even if there may be policy concerns with reading the word “any” in section 230(e)(2) broadly, as the Third Circuit noted in Hepp, “policy considerations cannot displace text.”²⁶ A court’s task “is to apply the text, not to improve upon it.”²⁷ If Congress has concerns about excepting state intellectual property law claims from immunity, it can pass an amendment to adjust the statutory language. Many members of Congress are already eager to make changes to section 230.²⁸

Furthermore, section 230(e)(2) should be read to encompass right of publicity claims. Section 230(e)(2) requires that immunity shall not have an effect on “any law pertaining to intellectual property.”²⁹ This broad language is key in ascertaining what should qualify as an intellectual property claim for the purposes of the exception to immunity. As the Third Circuit noted in Hepp, “not only are core intellectual property laws included [in section 230(e)(2)], but so are laws pertaining to the subject.”³⁰

The right of publicity certainly pertains to intellectual property law. Black’s Law Dictionary explains that intellectual property is a category of law that “comprises primarily trademark, copyright, and patent rights, but also includes trade-secret rights, publicity rights, moral rights, and rights against unfair competition.”³¹ McCarthy’s Desk Encyclopedia of Intellectual Property similarly notes that “‘Intellectual property’ is an all-encompassing term now widely used to . . . [include] patent, trademark, unfair competition, copyright, trade secret, moral rights, and the right of publicity.”³² The Eleventh Circuit agrees: “there appears to be no dispute that the right of publicity is a type of intellectual property right.”³³ In addition, a state’s interest in creating a legal scheme to protect publicity rights is similar to its interest in protecting intellectual property—both types of claims aim to protect a person’s right to reap the rewards of their efforts and endeavors.³⁴ The analogous motivation behind these two claims further emphasizes their connection to one another.

Given the inclusion of the right of publicity as an example of intellectual property in prominent legal dictionaries, and the broad language Congress used in describing the scope of the intellectual property exception, it follows naturally that right of publicity claims would fall under the intellectual property exception. Right of publicity claims help protect someone’s (often a celebrity’s) property:³⁵ the profits they gain from developing and employing their own image. Allowing plaintiffs to bring right of publicity claims only facilitates effective market exchange between entertainers and advertisers, for example, something that tracks with Congress’s pro–free market goals laid out in section 230.³⁶

In amending the CDA to include section 230, Congress intended for social media companies to retain some responsibility over the content posted on their platforms, particularly in the context of violations of intellectual property law. This is apparent in section 230(e)(2) of the CDA, which, through its plain language excepts any intellectual property claim, including state law intellectual property claims, from an otherwise broad grant of immunity. If the Supreme Court considers a case regarding section 230(e)(2), it should apply its traditional tools of statutory interpretation to determine that the exception applies to both state and federal intellectual property law. Likewise, were the Court to take up the question of whether right of publicity claims are included in the types of state intellectual property claims excepted from immunity, legal definitions and prior court precedent demonstrate that right of publicity claims are indeed intellectual property claims. If the Court acts as an agent of Congress and stays faithful to the statutory text, the Third Circuit’s interpretation of section 230(e)(2) is likely to prevail, and the Court would bring clarity to the limits of section 230 immunity with regard to intellectual property law.

* Sasha Kliger is a J.D. Candidate (2024) at New York University School of Law. This Contribution is a commentary on the problem at the 2024 Hunton Andrews Kurth Moot Court National Championship. The question presented was whether an internet social media company has immunity from state law claims alleging infringement upon a celebrity’s right of publicity under the Communications Decency Act of 1996, 47 U.S.C. § 230. This Contribution distills one side of the argument, and the views expressed herein do not necessarily represent the author’s views.

1. 47 U.S.C. § 230.

2. 47 U.S.C. § 230(b).

3. Univ. Comm’n Sys. v. Lycos, 478 F.3d 413, 418 (1st Cir. 2007).

4. 47 U.S.C. § 230(e) (including, for example, obscenity, or other content that violates criminal law).

5. Id.

6. Compare Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007) (“[W]e construe the term ‘intellectual property’ to mean ‘federal intellectual property.’”), with Hepp v. Facebook, 14 F.4th 204, 212 (3d Cir. 2021) (“[T]he § 230(e)(2) limitation applies to state intellectual property law[.]”).

7. 47 U.S.C. § 230(e)(2).

8. 14 F.4th at 212.

9. United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940) (“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.”).

10. See, e.g., Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 302 (3d Cir. 2011) (quoting Alston v. Countrywide Fin. Corp., 585 F.3d 753, 759 (3d Cir. 2009)) (“[I]t is presumed that Congress expresses its intent through the ordinary meaning of its language[.]”).

11. Duncan v. Walker, 533 U.S. 167, 173 (2001) (quoting Bates v. United States, 552 U.S. 23, 29–30 (1997)).

12. See, e.g., 47 U.S.C. § 230(e)(1) (“Nothing in this section shall be construed to impair the enforcement of [specified statutes] or any other Federal criminal statute.”) (emphasis added); 47 U.S.C. § 230(e)(4) (“Nothing in this section shall be construed to limit the application of the [specified statute] . . . or any similar State law.”) (emphasis added).

13. See Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 300 (D.N.H. 2008) (noting that when “Congress wished to distinguish between state and federal law in § 230, it knew how to do so.”); see also Hepp, 14 F.4th at 211 (stating the same).

14. Duncan, 533 U.S. at 174.

15.  See Harrison v. PPG Industries, Inc., 446 U.S. 578, 589 (1980) (“‘[A]ny other final action,’ . . . must be construed to mean exactly what it says, namely, any other final action.”); United States v. Gonzales, 520 U.S. 1, 5 (1997) (“Read naturally the word ‘any’ has an expansive meaning . . . .”); see also Any, Britannica Dictionary (Online Edition) (defining “any” as “used to indicate a person or thing that is not particular or specific”).

16. Perfect 10, 488 F.3d at 1118.

17. Id.

18. 47 U.S.C. § 230(b)(2).

19. See, e.g., 47 U.S.C. § 230(e)(4) (excepting state and federal communications privacy laws from section 230 immunity).

20. See Hepp, 14 F.4th at 221 (Cowan, J., concurring) (“The possibility of tort liability in such a context would have an obvious chilling effect, with service providers (who could not possibly screen each of their millions of postings) possibly forced to impose severe restrictions on such on-line speech.”).

21. See generally Lycos, 478 F.3d at 422–23 (excepting a state law trademark claim from immunity under § 230(e)(2)).

22. Atlantic Rec. Corp. v. Project Playlist, 603 F. Supp.2d 690, 704 (S.D.N.Y. 2009).

23. Hepp, 14 F.4th at 211.

24. See State Laws Related to Digital Privacy, Nat’l Conf. of State Legislatures (June 7, 2022), https://www.ncsl.org/technology-and-communication/state-laws-related-to-digital-privacy – anchor9072 (documenting differing state privacy laws).

25. 47 U.S.C. § 230(e)(4).

26. Hepp, 14 F.4th at 211.

27. Pavelic & LeFlore v. Marvel Ent. Grp., 493 U.S. 120, 126 (1989).

28. Meghan Anand, et. al., All the Ways Congress Wants to Change Section 230, Slate (Mar. 23, 2021, 5:45 AM), https://slate.com/technology/2021/03/section-230-reform-legislative-tracker.html.

29. 47 U.S.C. § 230(e)(2) (emphasis added).

30. Hepp, 14 F.4th at 214.

31. Intellectual Property, Black’s Law Dictionary (11th ed. 2019) (emphasis added).

32. Hepp, 14 F.4th at 216 (quoting Intellectual Property, McCarthy’s Desk Encyclopedia of Intellectual Property (1991)).

33. Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1323 (11th Cir. 2006); see also ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 928 (6th Cir. 2003) (“The right of publicity is an intellectual property right[.]”).

34. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 563, 573 (1977) (noting that a State’s interest in permitting right of publicity claims “is closely analogous to the goals of patent and copyright law”); see also Hepp, 14 F.4th at 213 (“[J]ust as the right is ‘closely analogous’ to patent and copyright, so too for trademark. Like the right to publicity, trademarks secure commercial goodwill.”).

35. Zacchini, 433 U.S. at 573 (“[T]he State’s interest in permitting a ‘right of publicity’ is in protecting the proprietary interest of the individual[.]”) (emphasis added).

36. Hepp, 14 F.4th at 211.