In the Supreme Court of the United States __________ __________
19 January 2023
The new risk of liability would lead websites to remove many of the functionalities that have allowed online readers to find speech relevant to their interests, a crucial tool that has accelerated the growth of the marketplace of ideas like nothing before. [...] The court’s rationale was that Prodigy had effectively made itself a party to the spread of the defamatory content, because Prodigy moderated the content its users posted to its message boards but failed to remove the content at issue. [...] As a very close fit to the language of the law, the Barnes test is superior to the vaguer and murkier test that Petitioners propose, which focuses on the phrase “traditional editorial functions.” That test, as Petitioners frame it, derives from both the dissent in Force v. [...] Deeper scrutiny of the origins of the “traditional editorial functions” language in Zeran reveals that to the extent this line of inquiry—which is nowhere to be found in the text of Section 230—can be helpful, it is as an aid to answering the more relevant question of whether an interactive computer service has published third-party content. [...] The court concluded that Roommates.com was not entitled to Section 230 immunity, because the company’s affirmative solicitation of the allegedly 17 discriminatory disclosures from its users— disclosures required for using the site—rose to the level of “development” of the content at issue.