This Supreme Court Case Could Decide The Future Of The Internet As We Know It

The Supreme Court will soon hear arguments in a case with major implications for the operation of the internet as we know it. In Gonzalez v. when they heard Gonzalez.

In joining “the growing chorus of voices calling for a more limited reading of the scope of Section 230 immunity,” Judge Marsha Berzon, a Clinton appointee, wrote in a concurrence that she would find that “the term ‘publisher’ under section 230” does not cover “activities that promote or recommend content or connect content users to each other.”

“In my view, these types of targeted recommendations and affirmative promotion of connections and interactions among otherwise independent users are well outside the scope of traditional publication,” she added.

In a separate concurrence and partial dissent, Judge Ronald Gould, a Clinton appointee, agreed that Section 230 protects Google from liability for posts published by ISIS members on YouTube, but not for any activity that “goes beyond merely publishing the post” like “amplifying” dangerous content such as terrorism recruitment videos.

The plaintiffs in Gonzalez point to these dissents to argue that Section 230 protection should not extended to cover these recommendation systems. This wouldn’t necessarily lead to Google being found in violation of the Anti-Terrorism Act, but it would enable a court challenge to proceed.

Friend-of-the-court briefs similarly argue that the Supreme Court could limit Section 230 immunity in a variety of ways. The court could find that certain acts of curation and recommendation are not acts of publishing. It could rule that Section 230 protects online companies as “publishers,” but not as “distributors” of third-party content. Or it could require companies to act as good Samaritans, as suggested by the law’s original title, and eliminate harmful conduct or protect users from it on their platforms when they are made aware of it.

Since the Supreme Court has not heard a Section 230 case before, the justices have had little to say about it. The only exception is Justice Clarence Thomas, who in 2020 noted his dissatisfaction with lower courts’ interpretation of Section 230.

Noting that “most of today’s major Internet platforms did not exist” when Section 230 was enacted, Thomas said it “behooves” the court to take up a case challenging the law to judge whether lower courts have extended the protection from liability suits too far.

“Adopting the too-common practice of reading extra immunity into statutes where it does not belong, courts have relied on policy and purpose arguments to grant sweeping protection to Internet platforms,” Thomas wrote in dissent from a decision to turn down a case.

No other justice has stated an opinion on Section 230. There is also no way to divine their potential opinions based on which party’s president appointed them or their identification as conservative or liberal. Thomas, a George H.W. Bush appointee, is the most conservative justice on the court, while the three dissenting lower court judges were all liberals appointed by Clinton. Thomas’ call for the court to hear a Section 230 case also came amid rising skepticism toward Section 230 from members of both political parties.

Democrats in Congress introduced legislation to limit Section 230 liability protections for online advertisements and certain health information, and for online platforms that enable discrimination, stalking, harassment, genocide or wrongful death. Meanwhile, Republicans seek to amend Section 230 by having its liability protections kick in only when companies do not censor or otherwise moderate political opinions.

Gonzalez may very well be the beginning of a new legal landscape for the internet. The Supreme Court is currently weighing whether to take up arguments in two cases challenging laws passed by Republicans in Florida and Texas that would ban digital platforms from moderating content based on political ideology. In a hint that they might take the cases, the court asked the Biden administration to submit a brief in the Florida case on Jan. 23.

Changes to the internet’s “Magna Carta,” however well-meaning, may result in unwanted consequences. After a court found that Section 230 provided liability protection to the sex-worker website Backpage.com for connecting users with underage sex workers, Congress passed a law denying Section 230 protection to platforms engaged in sex-trafficking. This resulted in the shuttering of sites where sex workers consensually offered their services and Craigslist removing its entire personal ads section.

Just as Section 230 was enacted in response to the “perverse incentives” created by the Stratton Oakmont decision, and its passage created its own incentives protecting the internet’s negative externalities, so too could any change dictated by the court.