Reflections on the 25th Anniversary of the Telecommunications Act of 1996
Part III — “Section 230”
(Part I is here, and Part II is here).
As the lead staffer for Chairman Ed Markey (D-MA) on Telecommunications Act of 1996 (TA96), I often smile when people “correct” me to explain that Section 230 wasn’t part of TA96, but rather part of the Communications Decency Act (CDA). The reality is that Section 230 is contained in Title V of the Telecommunications Act of 1996, a title that the framers of TA96 indicated could also be referred to by its “short title,” as the “Communications Decency Act of 1996.” The CDA within TA96 contains only nine sections. Seeing the provision referred to as “Section 230 of the Communications Decency Act” is quite common, but technically incorrect. The provision itself, like almost all of TA96, was an amendment made to the Communications Act of 1934. That is, as the ninth section of the CDA, it was Section 509 of the Telecommunications Act of 1996, and then was codified at Section 230 of the Communications Act of 1934. So from a legal citation standpoint, it’s “Section 230 of the Communications Act of 1934, 47 U.S.C. § 230.”
Today, however, I feel people can simply call it what they want. After it became a call-out response at Trump political rallies in 2020, saying “Section 230” now largely suffices since it has become a commonplace term.
Section 230 is certainly much in the news and much misunderstood. In recent years, the provision has received bipartisan criticism in the U.S., but for quite different reasons. Some Democrats contend that Section 230 is overly generous in extending liability protections and therefore permits social media platforms to keep too much content up on their services that they believe should be removed. Meanwhile, some Republicans essentially assert the opposite — that Section 230 empowers Internet platforms to censor too much — while also alleging that social media companies are biased against conservative voices.
I recommend to people who are eager to understand the post-enactment interpretations of Section 230 to read the many articles and commentary from experts, such as Daphne Keller, Kate Klonick, Jillian York, and Eric Goldman. Professor Goldman has put together this helpful digest, the Section 230 Year in Review for 2020. I also suggest people read Mike Masnick’s, “Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 Of The Communications Decency Act.” Finally, Jeff Kosseff wrote the book “The Twenty-six Words that Created the Internet,” which contains background on the legal cases that led to the policy need for Congress to act, as well as history on court interpretations of Section 230 post-enactment. For more insights from a diverse group of content moderation experts and commentators globally, Jillian York has put together this wonderful Twitter list.
In lieu of repeating these legal and policy analyses, I offer here a small bit of the legislative history from a former staffer’s perspective on how this provision came to be part of TA96.
The Communications Decency Act was a bill introduced in the Senate by Senator Jim Exon (D-NE) and Senator Slade Gorton (R-WA) on February 1, 1995. It arrived during a time when “family values” politics was quite prominent in Washington, and capturing the coveted terrain in the political center during a time of divided government was important for both sides of Capitol Hill and the Clinton-Gore Administration. The Communications Decency Act legislation sponsored by Senator Exon also arrived at a time of growing concern about the seedier side of cyberspace and the proliferation of easily accessible pornography via the Internet. Indeed, Senator Exon’s staff had compiled a binder full of imagery taken from the Internet and Senators were encouraged to take a look at it so they could see for themselves the type of content that was readily available online. To the Senate staff, it was simply referred to as the “blue binder of porn.” Importantly, it was also a time when most Members of Congress were not online themselves and were unfamiliar with the Internet directly.
Concerns were raised when the CDA was first introduced from some in civil society, but lobbying against it didn’t get into high gear until a version of it was added to the Senate telecommunications bill later in the spring. Leading the charge in lobbying on the Hill was the newly-formed Center for Democracy & Technology (CDT), led by Jerry Berman.
By 1995 technology and communications companies had already had a long history of being involved in speech and civil liberties issues in Washington. After all, part of what prompted the active legislative interest at the policy core of TA96 had 1st Amendment implications. One argument for opening the door to the Bell companies to offer cable service and information services, from which they were barred by statute and the consent decree that broke up Ma Bell, respectively, was a contention those companies made in court and on Capitol Hill. Specifically, they argued that their First Amendment rights to offer such services were being abridged. Computer and software companies had made the case to us in recent years regarding the need to safeguard civil liberty protections for Americans in encryption policy during the first “Crypto Wars.” In addition, the National Association of Broadcasters during this same timeframe was arguing against the V-chip and television ratings, in part, on constitutional grounds. Finally, we had held House Telecommunications Subcommittee hearings in the prior few years on everything from the fairness doctrine to the speech implications of must-carry rules for broadcasters on cable systems during consideration of the Cable Act of 1992.
So having tech companies like Prodigy and CompuServe lobbying on these things wasn’t a new phenomenon in 1995. In fact, in 1994, while the Telecommunications Act of 1994 was pending in the Senate, Washington lawyer Ron Plesser visited then-lead Subcommittee Counsel Gerry Waldron and me to alert us to litigation moving through the courts affecting his clients Prodigy and CompuServe, and to suggest that Congress should address this issue. Of course, that bill died in the Senate in 1994, but the issue was on our minds as we entered 1995.
Having digitally-conversant, Internet-savvy public interest advocates present in the debate, however, was a new and welcome change and that’s where the CDT team came into the lobbying picture. CDT head Jerry Berman, Janlori Goldman, Danny Weitzner, Jonah Seiger, and Alan Davidson were active on the Hill and instrumental in making a non-corporate, civil society case for free expression, in recognition of the uniqueness of the Internet. They helped to rally other public interest groups and online activists in opposition to the government undermining constitutional speech protections.
Interest in the CDA largely remained in the background in early 1995, with concern rising as legislative activity progressed on the telecommunications bill. This rising concern was due to signals that Senator Exon intended to offer a version of the CDA that included Internet content in its scope as an amendment to the larger telecommunications bill. Lobbying activity on the CDA, however, was dwarfed by the intense lobbying on the other provisions of the House and Senate bills, with many debates, hearings, and Member negotiations on core elements of the legislation to overhaul our nation’s communications laws occurring throughout the spring of 1995.
Meanwhile, in parallel with legislative activity occurring on the telecommunications bills, a legal case was working its way through the judicial system — the Stratton Oakmont case, which Ron Plesser had alerted us to in late 1994. This was a lawsuit brought against Prodigy and it centered on the question of liability of online companies for content originating from third-party sources. In short, the question before the court was to what extent Prodigy could be held liable for third-party content on its site and whether its liability hinged on the fact that it took editorial action to moderate content. An earlier lawsuit aimed at CompuServe, which did not moderate content on its site, had found CompuServe not at fault because of this stance.
When the Stratton opinion came down on May 24, 1995, the Stratton court essentially held that Prodigy was indeed liable for content that its users created because of the editorial control it exercised over its online bulletin boards. It effectively had the public policy incentives for online companies upside down: a company taking action to moderate content (such as porn) increased its legal liability by doing so, while one that turned a blind eye to everything posted on its service by third parties was legally off the hook. This was not seen as “family friendly” policy and many feared it would fuel the concern about content on the rapidly growing Internet in ways that would bolster support for the CDA.
The same day that the Stratton opinion came down, it also happened to be the first day of the two-day markup of the telecommunications legislation in the House Commerce Committee. While I remember seeing the news of the case at some point during those two days, at the staff level we were working hard on the various contentious issues and amendments directly before us. So we didn’t focus on the court case at that particular moment. As a practical matter, it was too late to develop a proposal to address it for consideration at the markup itself. That would come later. On the other hand, no equivalent to the CDA was added to the bill during our House Energy & Commerce Committee markup either.
From a parliamentary standpoint, the CDA as introduced never passed the Senate as a stand-alone bill. Instead, it was added by amendment to the larger Senate telecommunications bill during its floor consideration on June 14, 1995. This amendment, offered by Senator Exon, included a prohibition on indecent content and criminal penalties. It was quite clear that the amendment targeted the Internet directly. The offering of the Exon Amendment came roughly three weeks after the Stratton decision and the House Commerce Committee markup. The CDA language was adopted as part of the Senate bill overwhelmingly, by a vote of 84–16. One interesting historical footnote is that then-Senator Joe Biden (D-DE) was one of the 16 Senators who voted against it. Adding the CDA to the Senate telecommunications bill was a big deal and impacted the politics almost immediately by adding yet another controversial element into the mix.
The coalition of civil society groups that was continuing its work on legislative ideas and lobbying strategies to deal with the Stratton case now had the CDA’s addition to the Senate bill to contend with as well. After our House Commerce Committee markup, this coalition redoubled its efforts in collaboration with Representatives Chris Cox (R-CA) and Ron Wyden (D-OR), who were already discussing remedies together. This fine work resulted a few short weeks later in the introduction by Representatives Cox and Wyden of the “Internet Freedom and Family Empowerment Act.” Note the “family empowerment” reference. Family values branding was important to begin styling this measure as an alternative approach to the CDA provision in the Senate bill. It also reflected a strong desire not to have the government making content decisions.
The political reality was that it was the adoption of the CDA to the Senate telecommunications measure through the Exon Amendment, rather than the Stratton case, that really got grassroots activists engaged and started to generate media attention to the issue. After our full committee markup, we were now preparing at the staff level to follow the Senate’s action and bring the House version of the bill to the floor and engage in debate on a number of amendments. As we did so, the question loomed as to how the House would handle the CDA issue when the bill reached this next stage of the process.
At the bipartisan staff level for the House Commerce Committee leadership, we knew that the House GOP leadership, starting with Speaker Gingrich, opposed the Senate CDA provision. The House, in contrast to the Senate, adopts a rule when a bill comes to the House floor that can constrain the amendment process and stipulate specifically what amendments will be permitted to be offered and voted on during the debate on the bill. This meant that Chairman Bliley, working with the GOP House leadership, could call the shots about which amendments would be permitted.
In this context, the remarkable thing during the House floor debate on the telecommunications bill wasn’t that the Cox-Wyden amendment was agreed to by an overwhelming vote of 420–4. Indeed, support for it was obviously deep and broadly bipartisan. The remarkable thing was that there was no vote on regulating indecency — that is, no equivalent of the Exon Amendment was permitted for debate or a vote during House floor consideration — in a House controlled by “family values” Republicans and led by Speaker Gingrich. Had such an amendment been permitted and offered, it surely would have won. Control of the process was key and it was managed exceedingly well by the GOP leadership, with strong guidance from Commerce Committee Chairman Bliley and his Staff Director James “JD” Derderian, who played a vital role throughout the entire legislative process.
Once both bills passed their respective chambers, the House-Senate staff conference commenced. As mentioned in Part I, a House-Senate conference committee is a rare thing these days but they were more common back in 1995. Neither Rep. Cox nor Rep. Wyden were conferees from the House side. Senator Exon, however, was a conferee from the Senate side and could carry the argument from his perspective.
Senate staff indicated to us at the staff level as early as September that they were fine with Section 230 and were happy for it to be added to the bill. So, from my vantage point at the time, this was a given and Section 230 was never itself in contention. Instead, what was in play was whether the House bill’s Section 230 would suffice as a substitute for the Senate’s CDA provision. On that question, the Senate staff never wavered — they made it abundantly clear they wanted the Senate CDA provision in the final bill.
The standoff between House and Senate on the Communications Decency Act in the Senate bill, and the question of whether Section 230 from the House bill could serve as an alternative for it, was one of the unresolved issues for the conferees as we headed into December. The hopes many of us had for making Section 230 an alternative to the CDA had largely evaporated over the several months of our staff discussions. By December, it was quite clear to me that Section 230 wasn’t going to knock the CDA out of the bill, regardless of the CDA’s dubious constitutionality. Moreover, Senate staff were understandably insistent on reflecting the strong floor vote it had garnered and wouldn’t drop it in lieu of the House language.
In addition to being more common back in the 1990s, the other thing about House-Senate conference committees is that, by House rule, at least at that time, a convening of the conference committee had to be public. That is to say, at least one public meeting had to occur. The House-Senate conference committee for TA96 had three public meetings in the fall of 1995, on October 25, December 6, and December 12. It was at the second public meeting on December 6, that the CDA was debated in public and resolved, although the resolution occurred in private.
To explain further: even though the House version of the bill did not contain the CDA, only Section 230, and the House did not permit a CDA-esque amendment to be offered for a vote on the House floor, the House-Senate conference offered an opportunity for any House conferee to offer amendments to the developing final bill. Chairman Henry Hyde (R-IL) of the House Judiciary Committee took this opportunity at the public conferees’ meeting on December 6th.
At that meeting, Chairman Hyde offered an amendment (video at 25:45) to include criminal penalties for both obscenity and indecency, specifically prohibiting the knowing transmission of indecent material to children. This was essentially departing from the House Commerce Committee bipartisan staff position to offer Section 230 as our policy antidote to the Senate CDA and it brought a prominent GOP House conferee into the mix advocating for a CDA-type provision quite similar to the Senate’s.
Chairman Hyde’s move was not entirely unexpected. We knew that the Senate side would readily accept Section 230 from the House, as they had long indicated, but they welcomed it as a supplement to the CDA, not to supplant it in the final bill text. We also knew that while Chairman Hyde’s position was not the “party line” position of the House GOP — Speaker Gingrich opposed the CDA too — it was increasingly clear there was support for the CDA from other House conferees on the Republican side. At the public meeting, Commerce Committee conferee Rep. Rick White (R-WA) next offered a substitute amendment to Chairman Hyde’s amendment. The White amendment basically reflected that we no longer hoped to stave off the CDA entirely, but sought to change the indecency standard to a “harmful to minors” standard. Again, our overarching policy goal was to empower parents, rather than the government, to make content decisions for their families with respect to constitutionally-protected speech. Chairman Bliley, taking note of the disagreeing approaches among House Members, suggested a private caucus of the House conferees to confer and reach agreement on a position the House could offer back to the Senate. So the conference committee briefly recessed while the House conferees met to caucus amongst themselves.
At this point, Member conferees from the House Commerce and Judiciary Committees retired to a small conference room off of the main meeting room to caucus privately. There, a brief debate occurred on Chairman Hyde’s amendment. This debate did not break along partisan lines, however, but more closely along committee jurisdictional lines. After Chairman Hyde reiterated his strongly-held view that indecency provisions with criminal penalties should be added to the final bill, either through his proposal or by agreeing to the Senate’s CDA provision, Rep. White repeated his preference to adopt the “harmful to minors” standard instead, arguing along both state court precedent and constitutional lines. My boss, Rep. Markey spoke next, and he voiced support for the “harmful to minors” approach. A couple of Members questioned what the difference between the two standards was, but most Members did not speak but simply listened to the discussion.
At this point, the bottom started to fall out and it became crystal clear that White’s “harmful to minors” substitute never had a remote chance of being adopted. That’s because senior Democrats on the House Judiciary Committee started speaking in favor of Chairman Hyde’s approach. We who were wary of the constitutional speech implications of the CDA not only didn’t have a winning hand on the Republican side, but we were clearly losing votes on the Democratic side too. When all the talking was over, Chairman Hyde had basically gutted Rep. White’s alternative proposal and reinserted his indecency approach. Hyde had won handily. When we were returning back to the main meeting room to report the House position back to the Senate, I remember that the first person I ran into outside our caucus room was Jerry Berman of CDT. Jerry asked what had happened and I told him. He uttered a brief curse word and then asked “So, what happens now?” I told him the CDA debate was effectively over and that we’d simply get a stapler and add both the CDA and Section 230 to the bill. When the Members returned the the committee room and Chairman Pressler gaveled the meeting back to order, it was left to Rep. White to explain that the new House position on the CDA was to endorse its indecency standard. The Senate conferees were elated to hear this news because it effectively meant the CDA provision was no longer an unresolved issue for the conferees but now locked in for addition to the bill.
I often see blogs or articles where people assert that Representatives Cox and Wyden amended the CDA to add Section 230. They did not. They amended the House telecommunications bill on the House floor and the House bill did not contain the CDA. They also didn’t amend the CDA in the House-Senate conference, as they weren’t conferees, but even had they been in the conference, Section 230 wasn’t an amendment to the CDA per se. Both provisions were adopted in parallel and jointly placed in Title V of TA96, along with a number of other provisions, including the provisions addressing television ratings and the V-Chip. Because the framers of TA96 stipulated that Title V could also be referred to by its “short title” of the “Communications Decency Act,” this is where some confusion comes in I believe. The reality is that Section 230 and the CDA were intellectually joined because of the debate in 1995 regarding how best to address lawful, but problematic content on the Internet. And the two approaches were joined in debate at times by the desire on the part of some conferees (from the House) that one provision be adopted in lieu of the other. But from a legislative drafting standpoint, Section 230 was never offered as an amendment to Senator Exon’s CDA provision in TA96, it was added alongside it and into the same title of the bill.
Compared to the debate around Section 230 today, the debate on the CDA versus Section 230 in 1995 was not an argument over the issues of over-censorship or under-removal of content, or about the level of liability protection afforded to online companies. At the time, almost everyone agreed that Congress should clarify the law to encourage content moderation by online entities, rather than penalize it as the Stratton decision had done. In order to empower online companies to act in ways we thought would be pro-consumer, we were seeking, in support of First Amendment principles and in defense of a nascent medium, a pointed reversal of a bad court decision. So instead of a debate on the rights and obligations of online platforms, in essence, the debate was about a philosophical choice: whether to have Big Brother, in the form of the U.S. government, deciding how content should be moderated online — including with respect to constitutionally-protected content — or whether we would empower companies to take content enforcement action themselves, in support of their own service’s community standards, and permit them the freedom to address such content proactively. In this context, one can understand why the title of Section 509 of TA96 is “Online Family Empowerment” and the heading for Section 230 itself is, “Protection For Private Blocking And Screening Of Offensive Material.”
There was one final thing we did before wrapping up Title V that often is under-appreciated. As staff for the bipartisan leadership of the committees worked with legislative counsel to pull together the various provisions that would eventually all reside in Title V, we also took legislative note of the lingering arguments contending that the CDA was unconstitutional. With the concurrence of our bosses, we added late in the negotiating process an expedited judicial review. Essentially, the conferees added a provision (Section 561) that stipulated that a civil case brought challenging the constitutionality of any provision of Title V would go directly to a three-judge panel, and an appeal of that would go directly to the Supreme Court. This would mean that a determination of the constitutionality of the CDA would not languish in the courts for years and years, but that we could get a quick verdict on this vital question. And this is essentially what happened immediately after enactment. After becoming law on February 8, 1996, a challenge was immediately brought and a panel of Federal judges in the Third Circuit Court in Philadelphia blocked the CDA by June, with the Second Circuit joining it in a similar decision a month later. The Supreme Court upheld these decisions the following year in Reno v. American Civil Liberties Union, 521 U.S. 844. All the other provisions of Title V, including Section 230, remained untouched and in force.
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