On May 28, 2020, President Trump signed an "Executive Order on Preventing Online Censorship" directed to Section 230 of the Communications Decency Act (47 U.S.C. §230(c)). Section 230 has long afforded protections to interactive computer services against litigation over their hosting and moderation of online content. In hundreds of cases since the law was passed in 1996, courts have held that Section 230 immunizes online services from claims based upon their hosting of third-party content, and their editorial decisions to remove such content from their platforms. The Executive Order does not, and could not, undo those precedents, much less unilaterally rewrite Section 230. Instead, it directs various activities within the Executive Branch that will increase regulatory scrutiny of online services.
Background on Section 230
Online service providers routinely rely on Section 230 to defend against claims related to their hosting or removal of user content. While Section 230 has several components, the most frequently invoked is Section 230(c)(1). Courts have uniformly held that Section 230(c)(1) affords a broad immunity against claims that seek to hold online services liable for hosting or publishing third-party content.1 This immunity applies regardless of how a plaintiff styles its claims, regardless of whether the service provider is on notice of alleged problems with the content, and regardless of the service provider's motivation in hosting or providing access to the content.2 Where the immunity applies, service providers can invoke it to secure dismissal at the earliest stage of a case, allowing them to avoid costly litigation battles.3
Many courts have also found that Section 230(c)(1) protects service providers against claims based on their decision to remove or limit access to third-party content.4 These courts reason that a decision to remove content is no different than a decision to host it: both are core publishing functions.
A separate provision of the statute, Section 230(c)(2)(A), expressly shields online services for actions that they take to "remove or restrict access to" any content that "they or their users consider to be lewd, lascivious, obscene, filthy, excessively violent, harassing or otherwise objectionable." 47 U.S.C. § 230(c)(2)(A). Unlike Section 230(c)(1), an online service invoking this protection has to establish that its removal decision was made "in good faith." Courts have split on the meaning of this requirement, some finding good faith where the service provider subjectively believes the content meets one of the enumerated categories, others applying a more objective standard.5 Typically, where a plaintiff makes a colorable allegation that a service acted with some improper motive in removing content (such as for anticompetitive reasons), courts have ruled that the service provider's "good faith" is a fact issue that cannot be resolved at the pleading stage of the case.
The Executive Order's Discussion of Section 230
The new Executive Order focuses on Section 230(c)(2)(A) rather than Section 230(c)(1). That focus limits the impact of the Order because, as noted, service providers more frequently rely on the latter protection.
In any event, citing concerns that service providers engage in viewpoint discrimination when they remove content, the Order suggests that such "discriminatory" removals may fall outside the protections of Section 230(c)(2)(A). Specifically, the Order maintains that service providers lack the "good faith" required by Section 230(c)(2)(A) if they "engage in deceptive and pretextual actions ... to stifle viewpoints with which they disagree." The Order thus appears most concerned not with the removal of content generally, but with service providers who mislead about the reasons for such removals. As examples, the Order calls out services that remove content in ways that are inconsistent with their own Terms of Service, and services that remove content to serve some political bias but pretextually claim that the removal was for other reasons. The Order declares that such removals are in "bad faith" and should not be protected under Section 230(c)(2)(a).
On its face, the Order's interpretation of Section 230(c)(2)(a) is not a radical departure from current law. Private litigants who sue online platforms for removing their content often claim that the...
