I see this as distinguishing between enabling law breaking and merely providing an opportunity.

I read this case a lot narrower than some, and I don’t read this case as saying that you cannot ever, under no circumstances, use structured text. I don’t even read it saying that you can’t use structured text which may, under some circumstances, be used to allow end users to do something illegal. Rather, in this case, it seems pretty clear that the tools were constructed in a way that offered little or no lawful purpose. Furthermore, it was not mere coincidence that certain combinations of the structured texts resulted in illegal grouping. I’ll leave it to the civil rights attorneys to defend whether this should be the case (though, I have my own doubts about whether I think that the FHA, as applied, makes good sense).

Finally, it’s easy to construct arguments against broadly immunizing websites that have structured text that users can create. I used this example on Volokh’s site: think Madlibs ™ with select violent verbs and select celebrity names which users can create and which are published to the front page (e.g. “Someone should [violent verb] [name].”). You probably wouldn’t want to immunize that behavior.

Regarding counseling & clear rules — sure, it’s up to lawyers to come up with guidance based on various precedents. I’m fairly familiar with Carafano, though, and it will be tough to steer a course between Carafano and the holding in this case. I’m not sure it can be reasonably done, actually, and I’m not sure I buy J. Kozinski’s attempt to do it. In that case, most attorneys will probably advise their clients to go more conservative. On these facts, one might say “no biggie”; the only thing lost is search efficiency. (It’s more efficient to do searching of specific fields than to do keyword searching of a free-text field.) But not all matters will have facts like these, and no doubt in other situations there will be more lost than mere search efficiency. (Also, search efficiency might be a big deal for some clients and some types of resources.)

At any rate, on this case, so individuals can put whatever they want in the free-text fields which will be keyword-searched, but you can’t develop search forms for it. Does this outcome make sense? It seems like either an exercise in hypocrisy or an exercise in willful blindness to the way computer technology works or an exercise in stupidity. I’m not a big fan of court decisions that come down to minor distinctions in present-day technology.

(1) In terms of trying to lay out a line between 230 and the FHA, the ICP/ICS line may not be a bad one, if it’s drawn correctly. (I’m not sure this one is.)

(2) One problem with this case is that it’s quite different from virtually all the other Section 230 cases. Just in terms of counseling clients and telling ISPs what to do, that creates a problem.

(3) Another problem with this case is that much of what Kozinski does is a type of handwaving. He lists email & search of the field-delimited results, but he’s not completely and straightforwardly clear about email & search liability relating to the field-delimitations (gender, family structure, sexuality). So that lets Reinhardt lay out his version of the test, and now there are two competing versions in one opinion. So if email & search are only a problem because of the field limitations with proscribed fields (as I read Kozinski’s opinion), then they are being used just to lend a little rhetorical weight to the opinion. But that’s dangerous because not everybody gets the technical language, so some people (like Reinhardt) are going to read it much broader to include a wide variety of search & email functions. That’s really a problem, as Eric Goldman points out.

Then, “why is such broad immunity such a good thing?” There are lots of responses to this, but without rehashing the newspaper / FHA battle, let me hit just a few of the salient points that distinguish print from online media:

(1) Imposing screens on online communications is different from imposing screens on print communications. No matter how busy the Village Voice is, there are still a finite number of print ads to be screened. For an online Internet service, there are orders of magnitude more content. To do manual filtering would destroy all the benefits of the Internet. To do automatic filtering would require reliance of filtering programs that have proven, time and again, to be both over- and under-inclusive in any domain they operate.

(2) One of the primary rationales behind regulation of print media has always been that speech is free to people who own printing presses. In other words, that there is a significant burden placed on people to try to remedy unfair, libelous, or wrongful speech of various sorts in newspapers, broadcast TV, movies, etc. On the Internet, the ability of individuals to counter undesirable speech of all sorts, without resort to government regulation, is vastly increased.

(3) Another major rationale behind regulation of print media is that print media has a kind of permanence that spoken media does not. Hence, the distinctions between libel (print or fixed media defamation) and slander (spoken word defamation). The Internet is really somewhere between those two. Internet content can be easily edited or removed, like spoken word content, and can disappear forever (libraries and archives will testify to that). Certain kinds of content (e.g., porn videos of celebrities) have a kind of persistence and will be archived in a distributed manner by a wide variety of people, thus ensuring ongoing access for a while, but it’s unreliable, and only applicable to some kinds of content. (Classified ads are not usually made available on P2P sites, for instance.)