Prior Restraint 2.0: A Framework for Applying Section 230 to Online Journalism


Wake Forest Journal of Law and Policy

In many ways, New York Times Co. v. United States represented the apogee of the protections afforded the press by the United States Supreme Court. The Court’s decision, affirming the essential role that newspapers play as a check on the power of government and rejecting attempts by the government to block publication of the Pentagon Papers, was a breathtaking conclusion to a tense constitutional standoff.

Forty years later, newspapers share the stage with a host of new digital media platforms. And while it is true that the traditional print medium may be challenged in an economic sense, the opportunities for news journalism have never been more dynamic.

No longer limited by the confines of the printed page, digital technology allows news organizations to provide accounts of greater depth, allow real-time access to official source documents, and provide links related to stories or information - all on a single digital page. Readers, for their part, are no longer limited to mailing letters to the editor that may or may not be published. Rather, they can comment in real time and engage in dialogue with other readers or the reporters themselves. Sometimes readers can turn into reporters by offering tips or even their own material - audio, video, and text from various news events they happened to catch and "cover" on their cell phone camera. 

Section 230 of the Communications Decency Act has helped spur the growth of such user-generated content on news websites. The law provides immunity to website operators for user-generated content that is “created” or “developed” by third parties over the Internet. Given that digital news websites receive some of the highest volumes of user-generated content, Section 230 has been vital in assuring that public discussion of public issues remains "robust and wide-open."

However, just like the government's efforts to block publication of the Pentagon Papers forty years ago presented a grave threat to the ability of a free press to report on issues of public importance, newspapers today seeking to make full use of digital technologies face a chilling effect from possible civil liability for all kinds of news content posted on their Internet websites. 

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