Constitutive Choices: Section 230 and First Amendment Values Versus FOSTA and President Trump’s Executive Order

Scott K Memmel, Christopher R Terry

Research output: Contribution to journalArticlepeer-review

Abstract

In 2018, the Allow States and Victims to Fight Online Sex Trafficking Act
(FOSTA) produced the first category of speech not provided immunity by
Section 230 of the Communications Decency Act. This first cut against
Section 230 was followed by President Donald Trump’s May 2020
executive order aimed at limiting the legal protections for social media
companies. Both of these actions represent a new battle over old ideas
about protecting expression. This Article uses Paul Starr’s “Constitutive
Choices” model to suggest that Section 230 represents a legacy of laws
and regulations designed to foster free speech and access to information.
As this latest battle continues in Woodhull Freedom Foundation v. United
States, this Article argues that FOSTA violates the First Amendment,
failing strict scrutiny review.
Original languageEnglish (US)
Pages (from-to)101-138
Number of pages37
JournalCardozo Arts & Entertainment Law Journal
Volume39
Issue number1
StatePublished - 2021

Keywords

  • Internet Regulation
  • Section 230
  • NTIA
  • FCC
  • First Amendment

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