Free speech access to the internet as we know it could soon be dramatically transformed, with the Supreme Court set to hear a high-stakes pair of oral arguments over holding social media companies liable for content posted by third-party providers.
At issue in one case is the scope of legal protections in a nearly 30-year-old federal law and whether they apply to the algorithms that digital service providers like Google and Twitter use to recommend what videos and websites to show their users.
Those two companies were separately sued by the families of terror victims. Oral arguments will be held over two days this week.
The family of Nohemi Gonzalez claims Google, the owner of YouTube, willingly allowed the Islamic State group to post hundreds of videos that helped incite violence and recruit potential supporters. The 23-year-old U.S. citizen studying abroad was one of 130 innocents killed in Paris during a series of IS-affiliated attacks in November 2015.
The platform’s software algorithms – or targeted digital calculations – allegedly steered extremist online material to viewers most likely to be interested in them.
It will be the first time the justices will review the Communications Decency Act’s Section 230, which has been in effect since 1996. It gives digital platforms a measure of immunity from some criminal and civil claims. Several lower courts have interpreted Section 230 as giving some of the largest companies in the world broad legal protection.
There have been bipartisan calls in Congress to limit the provision’s scope, with lawmakers saying it gives too much power to these platforms, has not kept pace with the rapidly evolving digital landscape, and leaves tech firms vulnerable to government pressure to suppress certain speech.
A separate appeal to be argued before the high court deals with liability under Section 2333 of the Anti-Terrorism Act – and whether hosting terrorist content online could constitute “aiding and abetting” under federal civil law, regardless of liability protections in Section 230.
That appeal was brought by American relatives of Jordanian citizen Nawras Alassaf, who was among the 39 people killed during a 2017 mass shooting inside an Istanbul nightclub. Three social media companies, including Twitter, were sued for civil damages, with the family claiming the companies provided a messaging platform for the gunman, who allegedly was recruited and directed by ISIS to carry out the attack.
In a broader sense, the nine justices will confront a range of competing interests: the boundaries of a company’s responsibility to identify and remove volatile or dangerous content, and to prevent its algorithms from promoting it; the push for even greater unfiltered “public forum” debate; and the role of government in policing such content.
Tech experts say the high court’s decision would not only affect web search results, but potentially social media feeds, apps, online marketplace listings and streaming services content.
“The First Amendment prevents lawmakers from taking extreme steps that would potentially limit our freedom of speech,” said Ashley Johnson, senior policy analyst with the nonpartisan Information Technology and Innovation Foundation (ITIF). “Governments are not allowed to tell companies what content they can and can’t allow, and it’s not allowed to tell people what things they can and can’t say. But what it comes to trying to reform Section 230 – that debate over what the end goal should be is definitely impeding lawmakers from making forward momentum on the issue.”
Justice Clarence Thomas may hold the key to deciding this case. He has repeatedly urged his colleagues to consider limiting Section 230’s reach, in an appropriate case.
“Applying old doctrines to new digital platforms is rarely straightforward,” Thomas wrote in 2021. “We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”
He and his benchmates now get that chance.
The law and its limits
It has become all too convenient: go to a web browser’s search engine and type in any topic of interest – from parachutes, health advice, or political discourse. Algorithms then recommend third-party sites to link: instant information and insight.
According to the Electronic Frontier Foundation, about 40 million people used the internet worldwide when Section 230 was enacted. By 2019, more than four billion people were online, with 3.5 billion of them using social media platforms. In 1996, there were fewer than 300,000 websites; by 2017, there were more than 1.7 billion.
Section 230 of the CDA says in part, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The idea was that promoting more user speech online outweighed potential harms, while putting the responsibility on the speaker, not the service that hosts the speech.
While some have dubbed it “The 26 Words That Created the Internet,” Section 230 more accurately enshrined the financial foundation that has allowed digital platforms – and free speech – to thrive.
The law also says that no interactive computer service provider “shall be held liable” for what Justice Thomas said in 2020 were “good-faith acts to restrict access to, or remove, certain types of objectionable content; or… giving consumers tools to filter the same types of content.”
Prior lower court precedents have said that includes forwarded email, video and photo file-sharing, message boards, even online dating services.
Many social media companies see their role as the modern equivalent of the town square, where a thoughtful exchange of ideas and services can thrive and be accessible to anyone across the globe – pushing cultural, social, and political change.
But those companies also say they enjoy some power to limit what kind of content its users post in the name of public safety. That elusive quest for balance has led to claims of selective censorship, particularly over some political and ideological views.
When announcing his intent to purchase Twitter, billionaire Elon Musk said he wanted it to be an “inclusive arena for free speech.” He promised to restore the accounts of former president Donald Trump and others, who had been kicked off the platform for controversial posts linked to the Jan. 6, 2021, U.S. Capitol violence. Trump’s accounts have been restored in recent weeks, including on Twitter.
As president, he signed an executive order in May 2020 designed to remove some big tech protections if companies engaged in “selective censorship” harmful to national discourse. The order came shortly after Twitter attached fact-check warnings to some of the president’s tweets.
“Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike,” the executive order stated.
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