Communications and Technology

Supreme Court Maintains Status Quo on Section 230, Online Free Speech

The U.S. Supreme Court recently issued a pair of highly anticipated rulings impacting online speech, content moderation, and liability for user-generated content posted on digital platforms.

In the first case, Twitter, Inc. v. Taamneh, petitioners representing the victim of a 2017 ISIS terrorist attack in Istanbul filed suit against Twitter, Google, and Facebook, seeking civil damages under the federal Antiterrorism Act (ATA) and the Justice Against Sponsors of Terrorism Act (JASTA). The victim’s family argued that because ISIS used online platforms to facilitate international terrorism, platform owners’ conduct constituted “aiding and abetting, by knowingly providing substantial assistance” ISIS under the aforementioned statutes.

The Court unanimously rejected this argument in a 9-0 opinion authored by Justice Clarence Thomas, explaining that “Defendants’ mere creation of their media platforms is no more culpable than the creation of email, cell phones, or the internet generally,” and that recommendation algorithms are “agnostic as to the nature of the content.”

However, in the related matter of Gonzalez v. Google LLC, the Court remanded the case to the Ninth Circuit for reconsideration. Although it was presented an opportunity in Gonzalez, the Court “declined to address the application of Section 230 to a complaint that appears to state little, if any, plausible claim for relief,” sidestepping the broader intermediary liability question.

The Court ultimately determined that platform providers merely hosting a social media service with recommendation algorithms does not constitute aiding and abetting terrorists who use their platform. However, the justices declined to weigh in on the extent of Section 230’s liability protections, preserving the status quo for now.

As ALEC previously reported, Section 230 is a vital component of American internet governance that underpins the foundation of modern online speech platforms. It ensures that websites will not be held liable as publishers for how they arrange, promote, or prioritize content, unless they are responsible for creating it. Importantly, Section 230 is not a limitless liability shield for tech companies. Platforms remain liable for federal criminal offenses and intellectual property infringements.

The Twitter and Gonzalez decisions now shift attention back to recent proposals in the Legislative Branch that could determine Section 230’s future. Policymakers should turn to ALEC’s model Resolution Protecting Online Platforms and Services that reiterates the importance of Section 230 to online free speech, opposes government efforts to regulate First Amendment speech, and preserves the dynamic internet economy for generations to come.