A Federal Anti-SLAPP Law Would Make CDA 230 More Effective

PPP Policy Director, Evan Mascagni, co-authored a piece with Julio Sharp-Wasserman on Techidrt about how federal anti-SLAPP legislation would make CDA 230 more effective.  Here is an excerpt:

Lawsuits against institutions that transmit speech, such as newspapers and blogs, impose costs that those institutions act to avoid—if necessary, by preemptively censoring any third-party speech that increases their exposure to legal liability. The purpose of Section 230 of the Communications Decency Act is to prevent this collateral chilling effect, specifically on internet users’ speech. CDA 230 enables the dismissal before trial of suits seeking to hold websites of the user-driven content model, such as Twitter and YouTube, liable for the unlawful speech or conduct of their users. This law is based on a policy judgment that, if held liable for all illegal content within millions of online posts, websites would reduce the amount of speech they transmit and, erring on the side of avoiding legal costs, would censor some lawful speech.

But even unsuccessful suits impose costs—after all, defendants who dismiss a suit before trial on CDA 230 grounds still must hire a team of expensive lawyers to secure dismissal. An empirical study in 2012 by Professor David Ardia at the University of North Carolina determined that the average CDA 230 case terminated on a motion to dismiss takes almost a year to reach dismissal. Ardia noted, plausibly, that litigating for this length of time entails substantial defense-side costs. In order to mitigate the collateral chilling effect of these pre-trial costs, defendants in CDA 230 cases need a fee-shifting mechanism that allows them to impose their costs on plaintiffs whose cases have faltered at the motion to dismiss stage. Given likely political obstacles to adding a fee-shifting provision to CDA 230 itself, a good way to supply this mechanism is through federal anti-SLAPP legislation.

Read the full post here.