> (2) Civil liability

> No provider or user of an interactive computer service shall be held liable on account of— > (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

The question is: what is “otherwise objectionable?”

The Ninth Circuit’s Zongo case held that “providers of computer security software can benefit from § 230 immunity, and that such providers have discretion to identify what online content is considered ‘objectionable.’”

Of the bat, the Ninth Circuit is dealing with a self-created problem. Under ordinary principles of statutory construction, “otherwise objectionable” must be interpreted consistently with the preceding elements of the list, which relate to pornography or violence. Maybe Nazi material would qualify, but Congress probably didn’t intend the statute to cover malware or spyware. Had the Ninth Circuit limited “otherwise objectionable” to such content, the antitrust issue would never have arisen, because other filtering tools wouldn’t fall within the scope of “otherwise objectionable” content.

Regardless, Ninth Circuit precedent is what it is. But that still doesn’t support calling this an antitrust exception. As the Court itself says, it’s about the scope of the “discretion” to define what is “otherwise objectionable” content. It’s about whether the safe harbor applies at all, not carving out an exception for the safe harbor when it would otherwise clearly apply.