Every now and then, I do some legislative drafting. I tend to get pushback on my habit of including a bunch of legislative findings and statements of policy, and what some consider my over-detailed definitions. The usual challenge I get is “everyone knows what we’re talking about.” My response: “I’m not writing for us. I’m writing for some judge 25 years from now with no idea what we’re talking about or trying to do.”
Which brings me to Gonzales v. Google, the Supreme Court case in which the Justices will take their first shot at interpreting Section 230 of the Communications Act. Distill down the thousands of pages of briefs, brush away the policy arguments, and it all boils down to one question: “What did Congress actually mean when it said don’t treat online services as the ‘publisher of speaker’ of third-party content”? Does it mean (a) the plain English ‘don’t treat the provider of the online service as if that provider actually said the thing’ – so you can’t sue a provider of an “interactive computer service” (to use the actual statutory term) for anything relating to third party content; or (b) does it mean ‘this section provides only protection from liability as a ‘publisher’ under the common law’ – but feel free to impose liability as a common law distributor of third party content (or possibly for any other kind of liability outside the rather narrow common law universe of defamation)?
Because this question comes a lot, and because I expect lots of folks to follow the Gonzales case, I decided to run through the type of analysis courts typically engage in when trying to interpret what Congress meant and why courts can come up with wildly divergent explanations.
Yes, policy issues and outcome determination matter. But good judges at least try to figure these things out, and even bad judges (by which I mean those determined to reach a specific outcome no matter what the statute actually says) need to couch their opinions in the form of legislative analysis. This is why lawyers and scholars spend so much time on the subject.
So if you want to understand how this game works to follow the arguments in Gonzales v. Google, see below. Along the way, I’ll highlight how W. VA v. EPA may complicate things with its stupid ‘let’s look at what Congress didn’t pass’ analysis.