Immoral Immunity: Using a Totality of the Circumstances Approach To Narrow the Scope of Section 230 of the Communications Decency Act

In an effort to remove the disincentives to self-regulation created by the decision in Stratton Oakmont, Inc. v. Prodigy Services Co., and to avoid the onslaught of litigation that would otherwise likely have ensued, Congress passed 230 of the Communications Decency Act in 1996. With the tremendous and unforeseeable growth the internet experienced immediately thereafter, and continues to encounter today, what should have been a simple mechanism to allow innocent internet service providers (ISPs) to edit and delete content without fear of being charged as publishers has evolved into a relentlessly broad shield that protects contemptible conduct by ISPs who knowingly and purposefully encourage the posting of defamatory content. This Note argues that the original purpose of 230 is continuously and unnecessarily abused by courts, which tend to interpret 230 as providing a blanket immunity for ISPs, and that websites created specifically to induce or encourage tortious content should be prohibited from invoking such immunity. In the end, this Note concludes that a compromise could be reached by using a totality of the circumstances approach to determine when a website should be held liable for third-party content.