Otherwise Objectionable episode 3: ‘Law and Disorder’

The third episode of Otherwise Objectionable, the narrative-driven podcast that tells the true story of Section 230 of the 1996 Telecommunications Act, moves beyond the earliest days of the internet to the beginning of the Dotcom Era. Spam makes its first appearance on early internet forums, angering the small online community.

Dueling lawsuits leave early web companies with a massive question: can they moderate speech without getting sued off the face of the earth?

NARRATOR: When we left off, the early internet was blowing up. Early users were being flooded with spam and unwanted content, and moderators were struggling to keep up.

ERIC GOLDMAN: Usenet was a chaotic mess.

ANDREW BULHAK: The quality of discourse deteriorated, but worse than that was just the spam.

NARRATOR: The internet saw its first major legal case with Cubby v CompuServe. Remember that the judge had to go all the way back to the 1950s to figure out how to deal with this brand-new technology.

JEFF KOSSEFF: The federal judge in Manhattan said, CompuServe is the digital equivalent of a newsstand, and the case is dismissed.

NARRATOR: And that decision had some unintended consequences.

JESSICA MELUGIN: So that’s part of what triggered this disincentive for platforms or message boards at the time to say, we’re not going to take anything down. We’re not even going to look at it.

NARRATOR: With no clear rules for the internet and billions of dollars being invested in this new industry, the stakes couldn’t be higher.

In short order, a second legal case arose that would directly lead to Congress passing Section 230.

Jake Zamansky: As a young lawyer looking for, you know, exciting cases, we seemed to have a great fit. So, uh, that was my first big client. Jordan Belfort and Stratton Oakmont was the name of the company.

VO: Jake had no way of knowing that he was taking on a case that would become the catalyst for Section 230.

Jake Zamansky: I was representing, um, Stratton Oakmont, for a couple years, and they invited me to their Halloween party out at their mansion in Long Island,  So I show up, I was dressed as Top Gun in a flight uniform and sunglasses, And I was called or summoned upstairs to meet with, uh, Belfort and Danny Porish. Danny Porish was the second in command. And he was played in the movie The Wolf of Wall Street by Jonah Hill, and he said, Jake, I’ve got a tough case for you. I said, anytime.

Jake Zamansky: They said they didn’t know who it was, but somebody got on this online service, Prodigy, and posted false and defamatory statements about the firm, Stratton Oakmont. They said the firm was involved in fraudulent public offerings and that they were a bunch of criminals and fraudsters. So I said, well, that’s interesting, but what do you want me to do? And they said go sue them and get them to take it down.

Prodigy’s lawyers cited the decision in Cubby v CompuServe, which led to some legal problems.

JEFF KOSSEFF: What Prodigy says is: this is exactly like the CompuServe case. We’re a digital newsstand, and we had no reason to know of this one post. So you should let us go. You should dismiss the case. And the judge says, not so fast. You’re actually very different than CompuServe. CompuServe, the company, did not get involved in what would be known today as content moderation. Prodigy had a very different philosophy. So Prodigy wanted to market itself as the family-friendly alternative to CompuServe. So they were just fundamentally two very different business models.

NARRATOR: Because of the conflicting logic of the only previous case law, the judge had to weigh his decision carefully. He explained to the prodigy lawyers—

JEFF KOSSEFF: Because you moderate content, you’re more like a newspaper than a newsstand, and you therefore are liable for everything that people post. You’re just as liable as the person who posted the content.

Two tech-savvy congressmen who were tracking these issues decided they might have an answer to this problem.

RON WYDEN: Well, we had these court decisions that had issued contradictory decisions on who’d be liable for things that were posted. Chris and I were kind of people who cared about, uh, policy and we were looking at all these court decisions that made no sense at all and, and I said to Chris, I don’t know everything about it, but I suspect this new internet deal was going to have zillions of posters. So how in the world would anybody be able to track all this stuff down?

CHRIS COX: In fact, what Prodigy was doing was attempting to impose rules of the road.

NARRATOR: That’s former Representative Chris Cox.

CHRIS COX: They had, you know, standards of online conduct, but they couldn’t possibly actually read and edit all of what was going on online because even in those days there were millions of posters today. There are billions. But the law was not designed for, you know, a newspaper that got millions of pieces of content in a very short period of time and that that published it in real time. Looking at this case, what struck me immediately is that here’s a new powerful legal incentive because the lawsuit was for millions of dollars. I’m going to be liable as Prodigy, if I moderate their content, so I cannot moderate their content. We cannot have these family-friendly rules. If anything goes, then I’m scot-free of liability. And what would the internet be like if that were the only model that were legal, effectively, in order to avoid this vast liability from a single poster?

RON WYDEN: Why don’t we go with something? And it was something I was very proud of because it reflected kind of my sort of looking at this with a voter’s eye, is we hear our voters always talking about personal responsibility. Let’s apply that to content.

Listen to Otherwise Objectionable Episode 3: Law and Disorder

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