Bloomberg Law
Feb. 21, 2023, 3:16 PM

Social Media Faces Test at Top Court After Congress Dithered (1)

Emily Birnbaum

Although Republican and Democratic lawmakers found a shared enemy in the country’s biggest tech companies, Congress has failed to channel that into legislative action.

Now the Supreme Court is stepping into the vacuum.

The Supreme Court’s traditional role is to weigh in on the application of laws and statutes, not to make policy recommendations or rewrite legislation.

Despite countless bills, hearings and complaints about Big Tech’s unchecked power, lawmakers failed to overhaul the internet’s most important law — Section 230 of the Communications Decency Act — which protects online companies from being sued over the comments, ads, pictures and videos on their platforms.

The question Supreme Court justices will consider as they hear oral arguments Tuesday in a case challenging Section 230 is whether it’s time to pare back those sweeping protections. In Gonzalez v. Google, the family of Nohemi Gonzalez, 23, a US citizen killed by Islamic State in a 2015 Paris attack, contends that Alphabet Inc.’s Google violated the Anti-Terrorism Act and should be held liable for software algorithms that recommended terrorist videos to YouTube users.

Eric Schnapper, the lawyer for the Gonzalez family, on Tuesday said YouTube’s use of “thumbnails” to direct users to new videos that is at issue in the case. He said YouTube should be held responsible for the thumbnails and recommendation lists that it promotes.

The case may determine the future direction of the internet, in addition to unleashing a torrent of lawsuits against Google, Twitter Inc., Meta Platforms Inc.’s Facebook and other companies. Some experts say it’s not an issue the court should be deciding.

“Do we think these nine judges are the best equipped to formulate a nice, clear rule that is easily applied by the lower courts?” said Evelyn Douek, a professor at Stanford Law School. “Absolutely not.”

Mary Anne Franks, president of the Cyber Civil Rights Initiative, which is siding with the Gonzalez family in the case, said the issue should be addressed by Congress. “But in this area, like in many other areas such as immigration and others where Congress has been unwilling or unable to take action, sometimes it ends up being the business of the courts,” Franks added.

In recent years the court, which has a 6-3 conservative majority, has shown a willingness to issue rulings with sweeping policy implications on issues from abortion to gun rights to religious freedom. Now it may add social media liability to that list.

“Attempts at fine-tuning and improving the Section 230 regime should be left in the hands of elected and properly appointed policy makers operating through the legislative process or administrative tools like notice-and-comment rulemaking — not this Court,” wrote the Progressive Policy Institute, a tech-funded think tank, in its filing with the Supreme Court.

The justices agreed to hear the case even without the kind of federal appeals court split that frequently prompts Supreme Court intervention. That indicates that the court is particularly eager to shape the future of Section 230, said Jeff Kosseff, a law professor at the US Naval Academy.

“This is an issue where the lower courts are not divided,” said Kosseff. “It seems like the Supreme Court felt like, ‘This is an issue that’s constantly in the news and we need to weigh in on it.’”

Associate US Supreme Court Justice Clarence Thomas.
Photographer: Olivier Douliery/AFP/Getty Images

At least one Supreme Court justice has publicly signaled that he wants to move on the issue. Justice Clarence Thomas, one of the court’s most conservative members, has signaled in recent years that he believes the lower courts have interpreted Section 230 too broadly. In March, he urged the court to take up a case addressing “the proper scope of immunity” under the law.

“Assuming Congress does not step in to clarify Section 230’s scope, we should do so in an appropriate case,” Thomas wrote in a concurrence.

A handful of lower court judges, including some that weighed in on the Gonzalez case, have similarly indicated they don’t view Section 230 as an absolute shield.

Bipartisan Push

Congress in 2018 passed narrow legislation that made social media platforms more liable for hosting content related to sex trafficking. But that law amounted to a small reform to the law.

The push to reform Section 230 has found some strange bedfellows. Democratic Senator Richard Blumenthal of Connecticut and Republican Senator Lindsey Graham of South Carolina co-sponsored legislation that would narrow Section 230 in order to crack down on child exploitation online.

A trio of top Democrats introduced legislation that would pare back Section 230 immunity for alleged violations of federal or state civil rights laws, antitrust laws, cyberstalking laws, human rights laws or civil actions regarding a wrongful death. A number of Republicans have put out proposals to remove Section 230 protections when the social media platforms take down right-leaning speech.

Those dynamics are playing out in the Supreme Court case as well. Civil rights activists, a gun rights group, Israeli military officials, a police association, and children’s safety advocates filed briefs in the case raising concerns about the kinds of harmful content allowed online.

The targets of their ire ranged from hate speech to criminal activity to addictive algorithms. Even Republican Senators Ted Cruz of Texas and Josh Hawley of Missouri filed briefs announcing it’s time to change up social media’s liability shield, alleging the law enables the tech companies to censor conservatives.

They’re all hanging their hats on this case as the potential solution.

Section 230 is a particularly thorny issue because the statute has two purposes: it allows companies to avoid lawsuits over their decisions to take down content as well as keep it up. Lawmakers want to rewrite Section 230 for opposite reasons, with Democrats pushing to hold companies liable for the hate speech and harassment on their platforms while Republicans seek to punish the companies for removing conservative speech.

On Wednesday, the Supreme Court hears a related appeal by Twitter in a case stemming from a 2017 terrorist shooting in an Istanbul nightclub. An appeals court said Twitter, Google and Facebook had to face claims that they played a role in the Istanbul attack by failing to identify and remove Islamic State materials. Twitter contends that ruling improperly expanded the scope of the Anti-Terrorism Act.

The Twitter case provides a potential off-ramp should the justices decide the best course is to sidestep the tricky Section 230 issues. Google says a decision favoring Twitter would also doom the Gonzalez lawsuit, letting the court order it dismissed without ruling on the scope of Section 230.

Ultimately, experts say, all of the interested parties could be disappointed by the decision and its implications because the issue of online speech is so difficult to confront. The First Amendment most likely protects most of the speech that people are concerned about – but a broad ruling that narrows Section 230’s protections could result in a tsunami of lawsuits against online companies large and small.

“How exactly the court will draw the line is really, really hard to predict,” said Douek, the Stanford Law professor. “What’s going to happen is we’re going to have a decade of litigation as the lower courts work out all of these things and where the lines are.”

(Updates in fourth paragraph with Gonzalez family’s lawyer.)

--With assistance from Greg Stohr.

To contact the reporter on this story:
Emily Birnbaum in Washington at

To contact the editors responsible for this story:
Sara Forden at

Elizabeth Wasserman

© 2023 Bloomberg L.P. All rights reserved. Used with permission.

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