Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act

Abstract

The only author to have published a comprehensive summary of section 230 cases is Ken Myers.His insightful article on section 230's application to Wikipedia includes a table listing forty-seven cases, along with the medium of publication, the prevailing party, and, where the plaintiff prevailed, the court's reasoning.Myers, supra note 13, at 205-08.This is not to say, however, that non-empirical approaches are without value.Many of the articles cited herein "pursue[] doctrinal, interpretative, and normative purposes rather than empirical ones."Jack Goldsmith & Adrian Vermeule, Empirical Methodology and Legal Scholarship, 69 U. CHI.L. REV.153, 153 (2002).16. Barton Beebe calls this mode of study the "leading cases" or "usual suspects" approach: "This anecdotal method, one essentially of connoisseurship, derives conventional wisdom about our case law from a limited aristocracy of hand-picked opinions appearing primarily in the U.S. Reports--or in the student casebooks."Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. PA.L. REV.549, 553 (2008).Whether these decisions are representative of the broad sweep of section 230 cases is not a question such an approach can reliably answer.See Lee Epstein & Gary King, The Rules of Inference, 69 U. CHI.L. REV. 1, 41-42 (2002) (arguing that selection bias, among other problems, makes drawing inferences about a population of cases unreliable).to prevent tortious or illegal conduct, but only a duty not to facilitate known wrongdoing.See Kraakman, supra note 3, at 889. 75.See Edward Lee, Freedom of the Press 2.0, 42 GA

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