The Supreme Court will hear oral arguments next week about social media giants Google and Twitter in a pair of cases that could determine whether the justices effectively rewrite one of the central laws underpinning the modern internet before Congress does.
The two cases, Gonzalez v. Google and Twitter v. Taamneh, deal with when social media platforms can face suit for content on their platforms. Congress has hotly debated changes for years to a law, Section 230 of the Communications Decency Act of 1996, that has given social media companies an immunity from lawsuits that allowed them to flourish.
President Joe Biden has called for changes to the liability under Section 230, and lawmakers from both parties have filed legislation to change the law. But prior efforts have broken down on party lines, with Democrats focused on misinformation and hate speech and Republicans focused on alleged partisan censorship online.
The Supreme Court cases, which would be decided before the conclusion of the term at the end of June, could reshape how the internet is governed without the involvement of the political branches, said Aaron Mackey, a senior staff attorney at the Electronic Frontier Foundation, which filed a brief in support of Google.
“We’ve had consistent interpretation of the law, both under Section 230 and the First Amendment, as to how it applies to the intermediaries that host all of our speech,” Mackey said. “These two days of oral argument, and these two cases, could represent an entire sea change in the rules that apply.”
Liability limits
The two cases started with the family members of victims of terrorist attacks who want to hold the tech companies responsible for content on their platforms.
In the Google case, set for argument Tuesday, the families argued that YouTube recommendations, which are generated by algorithms, helped spur the growth of terrorist group ISIS and sparked the deadly 2015 attack that killed Nohemi Gonzalez. The U.S. Court of Appeals for the 9th Circuit ruled that Section 230 provided immunity to Google and dismissed the case.
In the Twitter case, set for argument Wednesday, the families argued that the site did not do enough to limit how ISIS used the platform. The 9th Circuit ruled that Twitter could be liable under the Antiterrorism Act.
While the Twitter case does not explicitly invoke Section 230, the two cases are linked in the minds of experts and in briefs filed in the cases. Former Federal Communications Commission Chair Tom Wheeler said at a Harvard Kennedy Center event this month that the justices “didn’t stumble into Twitter v. Taamneh.”
Wheeler said the Supreme Court has set up these cases to determine the balance between two laws at odds with one another and what responsibilities social media companies have as a result.
“There is a conflict between what 230 says and the other antiterrorism laws say, a justiciable issue,” Wheeler said.
Internet dystopia?
The Supreme Court in part will be looking at how broadly Congress intended that immunity to apply when it passed the law in 1996 in response to lawsuits against internet companies.
Google argued in a brief that siding with the attack victims would rewrite the law and “turn the internet into a dystopia where providers would face legal pressure to censor any objectionable content.”
“Some might comply; others might seek to evade liability by shutting their eyes and leaving up everything, no matter how objectionable,” Google wrote.
Twitter argued in a brief that a ruling that holds it liable could open up social media companies to lawsuits over attacks even when the terrorists are “somewhere among the billions using their ordinary services” rather than providing specific help to commit an attack.
Megan Iorio, an attorney at the Electronic Privacy Information Center, which filed a brief in the Google case to support the victim families, said the courts rewrote Section 230 on their own already and these cases represent the chance to bring things back to earth.
“The internet won’t break if the court returns Section 230 to its original meaning,” Iorio said. “The exact opposite is actually happening, where over the last two decades or so the courts have rewritten and reimagined what Section 230 actually means.”
Lawmakers have proposed several bills to reshape the law. A bipartisan group of senators reintroduced a bill Thursday that would, among other changes, lay out explicit rules for content moderation and require internet companies to publish regular reports about their decisions.
At a Senate Judiciary Committee hearing Tuesday called “Protecting Our Children Online,” members of both parties called for changes to Section 230.
And Texas Republican Sen. Ted Cruz, a member of the Judiciary Committee and ranking member of the Senate Committee on Commerce, Science and Transportation, said in an interview that there’s “no doubt Congress should weigh in” on the law.
“That being said, the courts have an obligation to decide cases and controversies before them, and lower courts have read 230 broader than the language supports and broader than Congress intended,” Cruz said. “And so I’m hopeful this term, the Supreme Court will correct that.”
Lawmakers weigh in
With legislation seemingly stuck for now, members of Congress told the justices in briefs how they think Section 230 should be interpreted.
Sen. Ron Wyden, D-Ore., and former Rep. Christopher Cox , co-writers of the law, argued in a brief in the Google case that Congress meant for internet companies to have broad immunity. They wrote that the recommendation algorithms at issue are “the direct descendants of the early content curation efforts that Congress had in mind when enacting Section 230.”
Wyden and Cox said that “had Congress intended to limit immunity to defamation claims, it could have said so explicitly.”
Cruz, in his own brief, wrote that courts have embraced a “warped view” of the law, and he argued that Congress could have used language to fully immunize internet service providers from liability, if that’s what it intended.
Most justices on the court have not written on their views of the law. Mackey said the oral arguments may give a hint about how they intend to frame the case — what some of the major issues will be in the decision — even if the arguments don’t provide hints at the ultimate outcome.
Justice Clarence Thomas has been the court’s most outspoken critic of the Section 230 status quo, writing lone dissents in cases in 2020 and 2021 that said a broad reading of the law can have “serious consequences” and that the arguments in favor of broad immunity under Section 230 “rest largely on ‘policy and purpose,’ not on the statute’s plain text.”
Phil Verveer, a former counsel at the FCC, said at the Harvard event that the justices may come around to upholding the law but the mess they make to get there may push Congress to legislate.
“I think they say the immunity holds. But if Congress doesn’t like it, it ought to do something about it,” Verveer said.
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