The “Good Samaritan” (which is the statutory language used by Congress) provision of the Communications Decency Act of 1996 (CDA, codified at 47 U.S.C. §230(c)(1)), shields social media platforms from liability related to certain types of third-party content, including user-generated content that is the hallmark of most social media websites (which as of late includes a rapid proliferation of so-called “fake news”). More specifically, any “provider or user” of an “interactive computer service” cannot be treated as the “publisher or speaker” of any information provided by “another information content provider,” i.e., a user's Tweets or video content uploaded to YouTube. This immunity means that, in most circumstances, social media providers can edit, screen or delete third-party content at their discretion and without fear of liability.

Congress enacted the “Good Samaritan” provision to promote the robust nature of online communication and to minimize government intrusion into development and use of the Internet. The expansive immunity has extended to protection of “interactive computer service” providers from claims of, inter alia, defamation (considered the prototypical cause of action in this area of law), discriminatory housing advertisements, negligence, violation of anti-sex-trafficking laws and public nuisance.

More recently, social media sites have been invoking §230 immunity to defend against claims alleging that the sites provide “material support” to terrorists in violation of the Anti-Terrorism Act (18 U.S.C. §2331 et seq.). The plaintiffs in these ATA suits often allege that social media platforms are “instrumental” to the rise and lethality of terrorist groups insofar as the platforms provide “material support” for terrorists because the platforms have allegedly become havens for hate speech, propaganda, fundraising and organizational coordination by terrorists, including the Islamic State of Iraq and Syria (ISIS). According to one Department of Justice official, many cases of domestic terrorism can now be traced to individuals who have viewed content of terrorist organizations on social media platforms.