Gregory M. Dickinson (University of Nebraska at Lincoln – College of Law; Stanford Law School) has posted Section 230 and Social Media Immunity on SSRN. Here is the abstract:
Section 230 of the Communications Decency Act is often credited—only slightly hyperbolically—with having “created the internet.” It did so by insulating online intermediaries from liability for third-party speech, thereby enabling platforms to host user content at scale. But the doctrinal story is more complicated, and the modern controversy is less about first principles than about fit. This chapter situates Section 230 in the pre-internet common law of defamation and republication, where courts developed conduit and distributor rules to avoid imposing impossible monitoring burdens on mass communications systems. Against that backdrop, Congress enacted Section 230 as part of the Communications Decency Act, aiming to encourage voluntary content moderation without triggering publisher-like liability. Early courts then converted a textually ambiguous provision into an expansive immunity doctrine, extending protection beyond classic publication claims and into a wide range of modern “hybrid” wrongs—cases where platforms’ design choices, algorithms, or business practices interact with user misconduct.
The result is an immunity regime that is both essential and increasingly strained. With Congress politically deadlocked, reform pressure has shifted to the Supreme Court, which—having never squarely interpreted Section 230—retains unusual freedom to recalibrate the doctrine. This chapter maps the interpretive moves that produced today’s breadth and sketches the legal terrain that would remain if the Court narrows immunity: traditional pleading constraints, proximate cause limits, and common-law conduit defenses that can protect the internet without making it unaccountable.