The Supreme Court will hear two cases this week that have major implications for the future of the internet. Google and Twitter are both facing lawsuits by families of victims killed in separate ISIS attacks, challenging the tech companies’ legal immunity for what users post on platforms granted through Section 230.
Section 230 has been a foundational pillar of the internet since 1996 and never before has it been under such scrutiny.
Explaining Section 230
Section 230 lays out two critical principles for online platforms. The first is that companies are not liable for harmful content posted on their sites. In other words, if a person wants to sue over a specific post, they can sue the person who posted it, not the platform. This rule applies to everything from the biggest tech giant to the smallest neighborhood messaging board.
The second is that companies can remove content they see as offensive or dangerous, also without legal liability, considering they do so “in good faith.” This section, under the “Good Samaritan” clause, applies to content that is, “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
Political divide on ‘Good Samaritan’ clause
This was meant to promote sensible content moderation. But as the internet and its role in everyday life has evolved, politicians from both parties have issue with how it’s carried out. Some on the Left believe Big Tech doesn’t go far enough with moderating and removing this type of content.
“Section 230 should be revoked immediately,” President Joe Biden said during his 2020 campaign for the presidency. “Because it is not merely an internet company, it is propagating falsehoods they know to be false,” he said, mentioning Meta in particular.
But some on the Right have also called for its repeal, believing Big Tech takes censorship too far.
“Republicans, conservatives, must open up our platforms and repeal Section 230 liability protections,” former President Donald Trump said in 2021, after his account was banned from multiple platforms.
And while Congress could decide to reform Section 230, the lawsuits facing the Supreme Court this week attempt to shatter the shield that has protected internet companies for nearly three decades.
Gonzalez v. Google
The family of American college student Nohemi Gonzalez, who was one of 130 killed in the Paris terror attacks in 2015, argues that YouTube failed to take down ISIS terrorist videos and even recommended them to some users. Any decision that holds Google liable would have far-reaching consequences for companies that use algorithms for recommendations.
The federal district court and the Ninth Circuit Court of Appeals both sided with Google, agreeing Section 230 immunizes the company against liability. However, the Ninth Circuit majority did bring up “concerns about the breadth of 230,” but deferred to Congress to reform the “sweeping scope.”
The Supreme Court agreed to review the case following a petition from the plaintiffs.
Twitter Inc. v. Taamneh
The family of Nawras Alassaf, a Jordanian citizen who was killed in a 2017 attack at an Istanbul nightclub, said Twitter, Google and Facebook acted as a messaging platform for the gunman, whom ISIS allegedly recruited and directed to carry out the massacre.
After a district court dismissed the family’s claims, Taamneh appealed and refocused its complaint on the Justice Against Sponsors of Terrorism Act and Anti-Terrorism Act, claiming that Twitter was aware of terrorist content on its platform and failed to prevent its dissemination.
Lawyers for companies in both cases argue there is no direct causal link between the websites and the two terror attacks.
Judicial desire to reform
While the Ninth Circuit deferred to Congress on limiting the scope of Section 230, conservative Supreme Court Justice Clarence Thomas has repeatedly challenged 230’s interpretation in the past.
In a 2020 denial of certiorari, Thomas wrote, “But many courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world.”
“Extending §230 immunity beyond the natural reading of the text can have serious consequences,” he added. “We need not decide today the correct interpretation of §230. But in an appropriate case, it behooves us to do so.”
But just as there is bipartisan support for restructuring 230, there is bipartisan siding with Big Tech. Democratic Sen. Ron Wyden and former Republican Rep. Christopher Cox last month filed a brief in support of Google, saying if the court ruled against it, “platforms would be subject to liability for their decisions to present or not to present third-party content — the very actions that Congress intended to insulate from liability.”
A decision on both cases should come this summer.
