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Section 230 Update

By Barry Skidelsky


On April 11, 2024, the House Subcommittee on Communications and Technology held a hearing titled “Where Are We Now: Section 230 of the Communications Decency Act of 1996,” which examined the purpose of Section 230 and discussed what Congress can do to modernize the law.


This is the latest in a series of efforts by the federal government to pump the brakes on multiple perceived ills flowing from the rapid and largely unregulated growth of the internet, digital and social media, artificial intelligence and other rapidly advancing technologies.


Section 230 of the Communications Act was designed to insulate online platforms from liability for content created by others that is hosted on their sites.  Since its enactment in 1996, Section 230 immunity had been considered essential to the rapid and successful growth of the Internet, as well as the many public and private benefits resulting from that.


However, recent concerns have emerged that Section 230 has had unintended consequences -- such as enabling terrorist activity, promoting the exploitation of minors, allowing discrimination and harassment, and other resultant societal problems which in part implicate the First Amendment.

While the federal government has yet to enact national legislation to address all of those concerns, various states did manage to pass laws that impose restrictions on social media including inter alia New York's hate speech law (GBL § 394-ccc), as well as content moderation laws in both Texas and Florida that were challenged in court by a big tech coalition known as Net Choice.


EASL's 2023 Annual Meeting program featured a relevant CLE panel I organized and moderated titled Regulation of Social Media and Online Content, which included remarks by Net Choice's General Counsel and others involved in federal litigation that by then had resulted in a circuit split and was headed on up to the U.S. Supreme Court. A transcript of EASL's annual meeting (including this panel) was published in EASL Journal Vol. 34, No. 1, a copy of which can be found at https://nysba.org/app/uploads/2023/03/EASL-Journal-2023-Vol-34-No-1_WEB.pdf.


The U.S. Supreme Court heard oral argument in the two Net Choice cases on February 26, 2024, and decisions are pending about content moderation or how and what social media companies and others can do when running their digital platforms. Transcripts of Supreme Court oral arguments in both the Texas and Florida cases can be found at https://www.techpolicy.press/transcripts-moody-netchoice-paxton-oral-arguments/.


A recording of last week's Congressional hearing on Section 230 is available online at  (https://energycommerce.house.gov/events/communications-and-technology-subcommittee-hearing-where-are-we-now-section-230-of-the-communications-decency-act-of-1996); and, a pre-hearing Memo (which succinctly explains the background of Section 230 and the various relevant court cases that led up to the recent Congressional hearing can be found at (https://d1dth6e84htgma.cloudfront.net/04_11_24_Section_230_C_and_T_Hearing_Memo_2_640b038364.pdf).


Barry Skidelsky is an Attorney, Consultant, Arbitrator and Mediator with a broad based and multi-disciplinary practice, who has a personal background, particular interests and expertise in Entertainment, Media, Telecommunications and Technology. A former broadcasting executive, radio and TV station broker, FCC divestiture trustee and bankruptcy trustee, Barry also previously successfully served as in-house General Counsel and Corporate Secretary for several PE/VC backed emerging growth companies including an Internet Service Provider and a Competitive Local Exchange Carrier, as well as at a publicly traded digital marketing/advertising tech company. Also a Berklee College of Music trained jazz pianist who is fluent in Spanish and Morse Code, Barry provides valuable assistance with a wide range of creative, business and legal matters to a mix of domestic and international clients including diverse entertainment, arts and sports talent, entrepreneurs, high net worth individuals and their families, privately held and/or publicly traded businesses, investors, lenders, non-profit organizations, and other lawyers or law firms of all sizes. Currently and actively seeking new opportunity and challenge, and appreciative of any referrals, Barry can be reached by email bskidelsky@mindspring.com or by telephone at 212-832-4800.

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