The current environment of perfect impunity for platforms deliberately facilitating online abuse is not a win for free speech because harassers speak unhindered while the harassed withdraw from online interactions. Conditioning immunity from liability on reasonable efforts to address unlawful activity would not end innovation or free expression as we know it. In contrast to a strike-oriented view of the CDA’s safe harbor, its modest revision will not break the “Internet.” Whether this would have been true at the time of its passage two decades ago, it would not be true today.

The CDA’s origins in the censorship of “offensive” material are inconsistent with outlandishly broad interpretations that have served to immunize from liability platforms dedicated to abuse and or those that deliberately tolerate illegality. Lawmakers thought they were devising a safe harbor for online providers engaged in self-regulation. The CDA was part of a campaign - rather ironically in retrospect - to restrict access to sexually explicit material online. What do a revenge pornographer, gossip-site curator, and platform pairing predators with young people in one-on-one chats have in common? Blanket immunity from liability, thanks to lower courts’ interpretation of section 230 of the Communications Decency Act (CDA) beyond what the text, context, and purpose support.