For almost 30 years, Part 230 of the Communications Decency Act has been hailed because the “twenty-six phrases that created dotcom valuations”…or one thing like that. It shields platforms from lawsuits for legal responsibility for content material posted by their customers and ushered within the halcyon days of willful blindness.
However like many broad immunities, Part 230 has been stretched far past its unique intent—each regulation agency in Silicon Valley bought a bit of that motion which little doubt put many kids by prep college. One evident misuse of Part 230 is shielding ticket resale platforms which might be basically lease looking for middlemen who make a marketplace for speculative ticketing.
What Is Speculative Ticketing?
In a nutshell, “speculative ticketing” includes promoting one thing you don’t personal and should not exist to unsuspecting followers blinded by enthusiasm who doubtless would by no means make the identical mistake in buying a automobile or perhaps a pet.
Extra formally, “spec ticketing” refers to third-party sellers itemizing and promoting tickets they don’t truly personal—betting they will receive them later, typically at a cheaper price, and pocket the distinction. Ticket resale platforms like public firm StubHub solicit the sale of speculative tickets each time they publish and promote listings for tickets that sellers don’t but personal. By treating these phantom postings as authentic stock, they remodel speculative provides into concrete gross sales to followers and revenue from the outcomes.
Customers who purchase these “phantom” tickets danger:
• Invalid entry on the venue as a result of the ticket is not any good,
• Final-minute cancellations, or
• Being pressured into dearer alternate options.
At finest, the spec ticket enterprises are bait-and-switch at scale, and the apply undermines each followers and artists. Platforms like StubHub might not create the listings themselves, however they revenue immediately from internet hosting and fulfilling the gross sales. (As do the bank card firms, however that’s one other story.)
They usually do it knowingly, protected by Part 230. As StubHub informed Congress in 2019:
StubHub’s Person Settlement and the High Vendor Handbook each explicitly prohibits [sic] sellers from itemizing speculative tickets, nonetheless, it’s affordable to imagine that speculative tickets are typically bought by the StubHub website. [Say what?}
As a marketplace, with ticket listings available for over 10 million sports, music, and theater events around the world, StubHub is not able to verify ownership of every ticket listed on our site. However, we have a robust set of tools and processes in place to help identify and remove suspicious listings and protect our customers.
Meaning, “because we are really big grifters, you can’t criticize us for any single grift.” If you caught one of those small fry resellers, you might send them to jail, but you can’t hurt big publicly traded resellers because we’re really big.
The way this works in practice is that the StubHub terms of service for sellers prohibits speculative listings and says sellers should list tickets only when they are “in hand” or allocated. However, StubHub also permits “list now, deliver later” postings if sellers assert they’ll obtain the tickets. Thus, StubHub doesn’t actually require present ownership at listing; enforcement and verification remain inconsistent in practice. In other words, more TOS gobbledygook.
They know it goes on, but they really, really, really try very hard not to know anything about any one speculative ticket sale. And of course they commission all sales, so they know that “sometimes” they are profiting from speculative ticketing since “…it is reasonable to assume that speculative tickets are sometimes sold through the StubHub site.”
If it’s reasonable to assume then it should also be reasonable to deny Section 230 protection when it does occur.
Why Section 230 Shouldn’t Apply
Section 230 was never meant to shield businesses from liability when they are the primary architects of the harm. Resale market-making platforms aren’t passive conduits (the famous “dumb pipes”) in speculative ticketing:
1) They design and operate the marketplace that enables these risky listings.
2) They profit directly from fees on sales, whether or not the tickets exist.
3) They control terms of service that often limit consumer remedies that benefit both the platform and the reseller.
I think there is a convincing and compelling argument that when a well-funded platform that could stop the harm is not merely publishing third-party speech but is instead structuring and profiting from a deceptive commercial transaction, it steps outside Section 230’s protections.
Congress Has Already Narrowed Section 230
This isn’t the first time Congress acted to narrow Section 230. For example, Congress passed FOSTA-SESTA in 2018, a targeted rollback of Section 230 that carved out liability for platforms that knowingly assist, support, or facilitate sex trafficking. It created a narrow exception: Section 230 no longer shields platforms in excluded federal criminal cases, state prosecutions, or civil suits by victims.
The policy logic was clear: when a platform profits from and meaningfully participates in harmful commerce, it cannot claim the protections intended for neutral intermediaries—because it is an intermediary but it’s not neutral.
That’s the model for speculative ticketing:
Define the harm clearly: listings for tickets not yet possessed or controlled at the time of sale.
Tie liability to platform conduct: Section 230 doesn’t apply where platforms benefit from or facilitate these sales.
Preserve good-faith safe harbors: no liability for platforms that:
• Actively police their marketplaces with proactive monitoring and responsive review,
• Verify ownership/control before listing (proof of purchase, barcodes, or direct venue/inventory integrations),
• Block repeat offenders (perhaps graduated penalties up to permanent bans),
• Promptly remove flagged speculative posts, and
• Refund and make whole buyers for failed deliveries.
• Open the courthouse doors: clarify that state AGs and consumers can sue both platforms and resellers, mirroring FOSTA-SESTA’s approach.
The Consumer Protection Gap
Allowing Section 230 to cover speculative ticketing creates a dangerous accountability void:
• State consumer protection laws get gutted, because platforms remove cases to federal court and invoke Section 230.
• Victims are left without remedies, while platforms collect their fees.
• Honest brokers and artists face reputational and financial harm.
In practice, this means courts are letting private companies arbitrate away consumer protection claims and even civil RICO—as happened in the Kaiser v. StubHub litigation in New York federal court.
A Simple Fix
Congress and state legislatures can—and should—clarify that:
• Speculative ticketing is not protected activity under Section 230.
• Ticketing platforms that facilitate and profit from speculative sales are responsible parties, not neutral intermediaries.
• State attorneys general and private litigants should have full jurisdiction to enforce consumer protection laws in state courts.
This doesn’t require gutting Section 230 wholesale (although that wouldn’t be the worst thing)—it just means acknowledging that speculative ticket sales are commerce, not speech.
Section 230 should not become yet another tool for resellers to hide behind.
Removing speculative ticketing from Section 230 protection would:
• Restore basic accountability,
• Protect artists and venues, and
• Protect fans by helping to ensure they get the tickets they paid for.
StubHub and similar platforms like to present themselves as neutral marketplaces. But when they knowingly facilitate and profit from the sale of tickets that don’t exist, neutrality goes out the window.
It’s time to draw the line: No Section 230 shield for speculative ticketing.
