Justices’ Section 230 Punt Can Influence Social Media Harm Cases

The US Supreme Court’s decision to leave intact a decades-old legal shield for internet platforms revives a social media company defense against hundreds of lawsuits claiming that recommendation algorithms cause addiction or facilitate sex crimes.

The justices unanimously found this week that Twitter Inc. and Google LLC’s YouTube can’t be held liable for recommending Islamic State terrorism content. They resolved Gonzalez v. Google without addressing the scope of Section 230 of the 1996 Communications Decency Act, instead relying on traditional liability principles.

By sidestepping that issue, lower courts can now resume drawing on decades of Section 230 case law that has generally favored online platforms. Some cases had been partially put on hold to await the high court’s decisions, including multidistrict litigation in a San Francisco federal court involving over one hundred addiction and personal injury lawsuits against Meta Platforms Inc., TikTok Inc., and Snap Inc.

“We’ve seen across the country a lot of courts decline to rule on pending Section 230 motions,” said technology attorney Jonathan Blavin of Munger Tolles & Olson LLP. “The courts will be ready to dive back into those issues under existing law and lift any stays that may have been in place.”

Attorneys say social media companies can now also point to Justice Clarence Thomas’ opinion in Twitter v. Taamneh, which said that Twitter’s “agnostic” recommendation algorithms that match content based on user preferences don’t amount to “aiding and abetting” the Islamic State.

But others say the tech industry’s claim of victory was overstated. In deciding to punt the Section 230 question, the Supreme Court vacated a US Court of Appeals for the Ninth Circuit judgment which found that the legal shield applied to YouTube’s algorithms.

“It’s not clear Big Tech is in any better position today,” said Previn Warren of Motley Rice LLC, who serves as the plaintiff’s co-lead counsel on the multidistrict litigation case. “Our read of those cases that came down is that they’re almost entirely about the specific facts.”

Product Liability Clash

The lawsuits in the multidistrict litigation argue that social media is a product and its algorithms cause addiction and lead to harms like depression, suicide, and sexual abuse.

Section 230 immunizes platforms from lawsuits based on the content posted by their users. In an effort to skirt that defense, plaintiffs have increasingly focused their arguments on the platform’s algorithms and conduct instead of the content.

That type of product liability argument has seen some success in the past few years. In Lemmon v. Snap, the Ninth Circuit determined that Section 230 doesn’t block a product liability suit claiming that SnapChat’s “speed filter” contributed to the death of two teenagers involved in a car crash while using the app.

US District Judge Yvonne Gonzalez Rodgers, who is overseeing the multidistrict litigation, said last fall that she wouldn’t rule on any Section 230 arguments until the Supreme Court handed down a ruling.

With the status quo intact, Warren said he expects the social media companies to file a new motion to dismiss based on Section 230.

Some attorneys say tech companies could draw from Thomas’ opinion to argue that while algorithms sometimes match users with harmful content, that doesn’t mean they should be held liable.

“It might be that bad actors like ISIS are able to use platforms like defendants’ for illegal—and sometimes terrible—ends,” Thomas wrote. “But the same could be said of cell phones, email, or the internet generally. Yet, we generally do not think that internet or cell service providers incur culpability merely for providing their services to the public writ large.”

Patrick Luff, a mass torts and product liability attorney, said the opinion’s focus on algorithms could threaten the “linchpin” of the plaintiff’s argument in the multidistrict litigation. “I think the legal road ahead for the MDL and future cases becomes very, very difficult,” Luff said.

Although the case focused on “aiding and abetting” law, the opinion could apply to other types of liability claims, said Jess Miers, legal counsel at the tech-aligned think tank Chamber of Progress.

“This will come up for things like dangerous design or failure to warn,” she sad. “There is an entire passage about how internet services don’t owe a duty to remove the kind of content at issue in the Taamneh case.”

‘Different Allegations’

The plaintiffs in Taamneh, the family of a victim of an ISIS terrorist attack, didn’t claim that Twitter or YouTube provided direct support to the organization or help it carry out the attack, which ultimately doomed their case.

“It was a very attenuated causal link,” said Alexander Lawrence, an attorney at Morrison & Foerster LLP. The plaintiffs needed to overcome a high bar to show aiding and abetting under the 2016 anti-terrorism law at the heart of the case.

But in a short concurring opinion, Justice Ketanji Brown Jackson emphasized that “different allegations” would lead to different outcomes. The general liability principles discussed in the opinion aren’t universal and “do not necessarily translate to other contexts,” Jackson wrote.

“The Supreme Court’s opinion doesn’t have any direct bearing on the product liability claims,” noted Eric Goldman, a Santa Clara Law professor who advocates for Section 230. “But by analogy, the defense will still certainly evoke the statements” made by Thomas.

Warren, the attorney representing the plaintiffs in the multidistrict litigation, said “it would be a mistake to over-read any language there.”

“The Supreme Court hasn’t had its last word on Section 230,” he said. “There will be another case that brings these issues to the court and how the court addresses them remains an unknown.”