On June 4, 2025, Crowell hosted its summer Crowell Atelier, a networking breakfast for luxury clients. Crowell's Preetha Chakrabarti and Emily Kappers organized the event, which featured a presentation by Crowell partner Joanna Forster, a former e-commerce General Counsel and California state prosecutor. Joanna discussed potential reforms to Section 230 of the Communications Decency Act and possible state government activity that will follow from related federal actions, all of which may impact the retail industry.
Five takeaways for retail clients:
- A "sunset" of Section 230, which currently allows internet platforms to moderate, remove, or suppress harmful, inaccurate, or unreliable speech has garnered Congressional support on both sides of the aisle.
- The U.S. Supreme Court recently held that social media platforms receive First Amendment protection for expressive content in the NetChoice cases. These rulings create a conflict between Section 230 (where more automation is helpful for Section 230 protection) and the First Amendment (where more automation makes First Amendment protection less likely).
- There are hundreds of state legislative proposals intended to regulate online content moderation across the U.S.
- Retail companies, who frequently host user generated content such as comments, reviews, ratings, and product listings on their websites are particularly impacted because their response (or lack thereof) to this content will likely influence potential liability under these proposed reforms.
- Now is the time to (1) review and update terms of service, policies and practices related to removal of content from online platforms; and (2) prepare for potential government inquiries and private lawsuits as legislative bodies seek "test cases" for proposed Section 230 reform.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
