Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, November 10, 2009

Commentary on the Case

Lynn C. Percival IV, Campbell University School of Law, has published "Drop-Down Menus and the Underlying Illegality Test: The Impact of the Decision on 47 U.S.C. § 230 Jurisprudence." Here is the abstract. 
In this paper, I argue that, despite harsh criticism from some, the underlying illegality test provided by the Fair Housing Council of San Fernando Valley v., LLC decision is a sound interpretation of § 230 that unifies congressional intent and prior caselaw. The decision properly encapsulates the exception to § 230 immunity. By inquiring as to whether an interactive website operator has “contribute[d] materially to the alleged illegality of the conduct,” courts act in harmony with Congressional intent. This underlying illegality test places a limit on immunity by preventing website operators from circumventing laws by using the Internet, while at the same time ensuring they can take significant action to promote the free flow of commerce and intellectual expression. Furthermore, I argue that the decision is not a departure from prior § 230 caselaw or tacit Congressional approval of those decisions as some have suggested.

Finally, I discuss the implications of the Ninth Circuit’s application of the underlying illegality test with regard to mandatory drop-down menu selections. Specifically, the court’s determination that the use of these menus equates to “development” is stretched to its logical limits, and the impact of normative judgments on this approach is considered.

Download the paper from SSRN here.

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