AuthorHocott, Andrew

It is an undeniable reality that the modern era has become an age of unexpected and unprecedented technological and societal growth. Whether it be the testing of self-driving cars, (1) the introduction of augmented reality into the market, (2) or the advancements of 5G (3) and artificial intelligence technologies, (4) the very way citizens view the world is constantly shifting. Despite the impact of these technologies, their precursor, the Internet, dominates the public consciousness. It has pervasively entered almost every aspect of life. In the U.S., a 2019 Pew poll showed that ninety-four percent of adults have a cellphone of some kind, while eighty-one percent own smartphones. (5) In China, even the payment for fruit at a stand has transitioned to using a QR code and a phone through their massively popular WeChat app. (6) China has had to make it illegal to refuse to accept physical currency as their citizens shift to digital transactions. (7) The Internet makes the metamorphosis from physical to digital possible.

One of the greatest contributions of the Internet has been its capacity to facilitate communication. What once required proximity and soundwaves now moves instantly through cyberspace via Internet mediums, such as websites. (8) Among these, social media has become a dominant player. To illustrate, in 2019, seventy-two percent of American adults used some form of social media and seventy-three percent used YouTube. (9) Americans benefit immensely from these products, and the companies generate massive revenue from their services; (10) however, some have begun to wonder whether tech companies have too much power, (11) particularly regarding their capacity to censor speech under [section] 230 of the Communications Decency Act (hereinafter "the Act"). (12)

Part I of this Note will explore the legislative interests that led to the passing of the Act, the powers it gives to social media companies, and the issue of censorship in the modern day. Part II will then investigate the creation, narrowing, and later abrogation of a resurging solution to private censorship through the analogy to the corporate town derived from Marsh v. Alabama (13) and Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. (14) Part III will explore the modern application of the standards in Lloyd Corp. v. Tanner, (15) Hudgens v. NLRB, (16) and Jackson v. Metropolitan Edison Co. (17) as applied to social media. Part IV will then reevaluate the analogy of the corporate town considering the Supreme Court's recent decision in Packingham v. North Carolina. (18) Part V will explain why the Court should continue to reject the analogy in respect of the separation of powers and the protection of private property owners.


    When considering the development of the law, jurisprudence, and the threats to individual liberty, no person could have anticipated the technological expansion of the twentieth and twenty-first centuries. Though the development of early Internet technology began in the 1960s with the U.S. Defense Department, the privatization and proliferation of Internet resources began in the early 1990s. (19) Before 1998, the National Science Foundation, created and funded by the U.S. government, managed the Internet before turning over control to the commercial sector. (20) Internet services proliferated and--as with any new forum of human activity--so too did legal conflict.

    1. Protecting the Good Samaritan

      In 1996, Congress passed the Communications Decency Act codified in 47 U.S.C. [section] 230. (21) Courts considered the Act a response to the holding of Stratton Oakmont, Inc. v. Prodigy Services Co., (22) wherein the Supreme Court of New York held that an Internet network was liable for the information published on its service because the network exercised editorial control. (23) Prodigy hosted a computer bulletin upon which over 60,000 messages were posted a day; the bulletin featured content guidelines and board leaders to enforce those guidelines. (24) There were so many posts that Prodigy had long stopped manual review of all of the posts but retained the capacity to delete posts. (25) The court held that this constituted sufficient editorial control over the posts that, despite the vast amount of messages, Prodigy could be held as a publisher of the information with "the same responsibilities as a newspaper." (26) However, such a holding imposed an incommensurate burden upon Internet service providers in comparison to the scope of their forum and thereby acted as a deterrence from self-monitoring for fear of liability. (27)

      Congress desired to promote the growth of the Internet and stop the precedent set by Prodigy from chilling self-regulation by Internet service providers; how could a service provider be expected to sift through every communication made on their service? (28) In response, the Act removed such potential liability from Internet service providers:

      (1) Treatment of publisher or speaker

      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.

      (2) Civil liability

      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[.] (29) The Act defines an interactive computer service (hereinafter "ICS") as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server." (30) The Act also defines a similar yet distinct term: an "information content provider" (hereinafter "ICP") is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." (31) An ICS creates the infrastructure for others to post their content. (32)

      For illustration, consider the relationship between an ICS and ICP to that of a newspaper and its authors. The newspaper acts as a forum or infrastructure (the ICS) of content provided by its authors (the ICP). The newspaper is considered a publisher through its exercise of editorial control and is therefore exposed to "increased liability." (33) Once considered a publisher, the one who reposts the content of another is liable for the content as if they were the original speaker. (34) Prior to the Act, an ICS that exercised any editorial control was treated analogously to a newspaper and held liable as if they created the content in the first place. (35) However, it is far more difficult to monitor a forum on the Internet than it is to check the content of a newspaper that is about to be published. Rather than chill Internet forums away from accepting user content, Congress decided to promote the development of the Internet and the self-monitoring of ICSs with the inclusion of two immunities in the Act. (36)

      First, ICSs are not to be treated as publishers of content provided by another. (37) Second, ICSs may voluntarily act "in good faith to restrict access to" objectionable content without liability. (38) The second immunity is referred to as the "Good Samaritan" immunity. (39) Just as the Good Samaritan in the Bible stopped to aid the wounded man along the road with no duty beyond that owed to his fellow man, (40) so too did Congress intend for ICSs to exercise their good faith discretion while traversing the virtual desert.

      Courts determine whether an entity is an ICS or ICP by the character of the challenged action; an entity may be an ICS by hosting a forum but be an ICP in regard to its own posts on that forum. (41) For example, Facebook may be an ICS by hosting profiles provided by others but be an ICP by making public service announcements or posts on those hosted profiles. (42) Services such as Facebook, Twitter, Google, and Craigslist have all been considered ICSs and granted such protection. (43)

    2. Too Much Protection, Too Much Power

      The Internet has kept up its expansive growth, and ICSs have been allowed to create a "flourishing middle ground" between declining to monitor their platform and highly curating their content for fear of liability. (44) However, concerns as to the broad discretion given to ICSs to remove content they find "objectionable" (45) have even moved members of Congress to accuse ICSs of acting with political bias and having too much control over public discourse. (46) The fear of an orwellian despotism by tech giants has incited many to speak out against them for "the online world that was supposed to bring us together and tear down the last bastions of censorship has instead created the greatest censorship and surveillance infrastructure the world could ever imagine." (47) Examples of censorship accusation come from both sides of the political spectrum. Live Action, a pro-life organization, levied accusations of censorship against Facebook in September 2019. (48)

      Tulsi Gabbard, a Democratic candidate for president, sued Google for hindering her campaign. (49) In a Judiciary Committee hearing, House Representative Jim Jordan flatly stated that, "big tech is out to get conservatives" and referenced a plethora of alleged instances of censorship before the CEOs of Amazon, Facebook, and Google. (50) Such tension has arisen that former President Trump released an Executive order attempting to limit the scope of the immunity to deny protection to "those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain...

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