Section 230 is fully introduced in Part I of this Article, where the policy objectives behind the statute and case law interpreting it are discussed. Part II explains how current online advertising services, such as Google's Adwords, function and how they fit into the § 230 immunity scheme. To explain why courts should favor operators, Part III utilizes the policy tension between § 230 and the FHA that can arise in the context of an online advertising contract. Suppose, for example, a brickand- mortar advertising agency entered into a contract through which the agency would post housing advertisements on the operator's website. If the rental agency expressed religious preferences in its ads, would either party be able to avoid contractual enforcement by asserting the contract is violative of public policy? Part III demonstrates that in most situations, operators-and only operators-should be able to avoid contractual obligations on public policy grounds. Section 189 of the Restatement (Second) of Contracts provides a test for evaluating whether public policy should bar the enforcement of a particular promise. (Going forward, the restatements are referred to as the "First Restatement" and the "Second Restatement.") Section III.A explains how that framework functions and why it is a superior approach to that of the First Restatement. Section III.B demonstrates that when § 230 immunizes an operator from liability for illegal third-party content closely related to a contract between the operator and a content provider, the contract should generally be voidable at the option of the operator-not the content provider. Finally, other applications of this one-sided approach as well as a variety of implications for the media are discussed in Section III.C.
Lynn C. Percival IV,
Public Policy Favoritism in the Online World: Contract Voidability Meets the Communications Decency Act,
Tex. Wesleyan L. Rev.
Available at: https://doi.org/10.37419/TWLR.V17.I2.4