Social media has become a prominent part of everyday life. It is regarded by many as the modern-day equivalent of the town forum. The Pew Research Center finds that over 70% of American adults use some form of social media, and almost all of those users get news content from them. It is one of the foremost means of communication in our modern world. Views of social media censorship, especially related to certain political news and politicians, have shifted in recent years. Generally, social media users have differing views on whether Big Tech should be regulated more heavily by the U.S. government in response to these perceptions of censorship.

Federal courts have held for decades that interactive computer services cannot be considered publishers for the purpose of determining liability to users for content published by third parties. This area of the law was developed in the infancy of the internet, and technology has advanced leaps and bounds faster than the law has.

The relevant statute in these cases is 47 U.S.C. § 230 (the Communications Decency Act of 1996), which states that “no provider or use of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In lay terms, online media platforms (think YouTube, Facebook, Twitter, etc.) that host content created and/or shared by third-party users cannot be held liable unless the provider is directly responsible for creating it.

Karen Hepp is a news anchor for Fox 29 in Philadelphia. In 2019, she filed a lawsuit in the Eastern District of Pennsylvania against Facebook after discovering that the company was advertising a dating website using her image. The claim pertinent here was a violation of Pennsylvania’s right of publicity law. Since Hepp was a public figure who depended on a carefully cultivated image for her success, she argued that her image on a dating website without her authorization jeopardized that image. The District Court dismissed her state law claims on the basis that Section 230 only exempted federal intellectual property claims from immunity.

Are state law claims for violation of a right to publicity immunized from lawsuits by Section 230 of the CDA?