Since the passage of Section 230 of the Communication Decency Act (“CDA”), the majority of federal circuits have interpreted the CDA to establish broad federal immunity to causes of action that would treat service providers as publishers of content provided by third parties.  The CDA was passed in the early days of e-commerce and was written broadly enough to cover not only the online bulletin boards and not-so-very interactive websites that were common then, but also more modern online services, web 2.0 offerings and today’s platforms that might use algorithms to organize, repackage or recommend user-generated content.

Over 25 years ago, the Fourth Circuit, in the landmark Zeran case, the first major circuit court-level decision interpreting Section 230, held that Section 230 bars lawsuits, which, at their core, seek to hold a service provider liable for its exercise of a publisher’s “traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content.” Courts have generally followed this reasoning ever since to determine whether an online provider is being treated as a “publisher” of third party content and thus entitled to immunity under the CDA.  The scope of “traditional editorial functions” is at the heart of a case currently on the docket at the Supreme Court. On October 3, 2022, the Supreme Court granted certiorari in an appeal that is challenging whether a social media platform’s targeted algorithmic recommendations fall under the umbrella of “traditional editorial functions” protected by the CDA or whether such recommendations are not the actions of a “publisher” and thus fall outside of CDA immunity. (Gonzalez v. Google LLC, No. 21-1333 (U.S. cert. granted Oct. 3, 2022)).