Protecting the E-Marketplace of Ideas by Protecting Employers: Immunity for Employers Under Section 230 of the Communications Decency Act

While we credit employers that provide employees with free Internet access, such access comes at a price to the public because employers are one of the traditional defendents in defamation suits. Complicating matters, Congress enacted the Communications Decency Act. Its section 230 provides broad federal immunity for ISPs when defamatory material of a third party is published using their services. With the passage of section 230, Congress rendered employers immune for the same tort which they are so closely associated. Some argue that employers should not be capable of invoking the immunity because it would allow employers to defame with impunity. This argument is misguided in many respects. Congress took the right step in protecting the Internet as the electronic marketplace of ideas by protecting employers under section 230. Part I of this Article will explore the relevant background information regarding the extreme importance the Internet plays in advancing the marketplace of ideas. Part II will demonstrate that Congress intended employers to be immune under section 230 as ISPs and provide the substantial justifications for such a position. Finally, Part III addresses a few objections to employer immunity