Supreme Court to Decide Future of Section 230 Protection for Social Media Platforms

Social media companies might have to make significant changes to their platforms, depending on the outcomes of two Supreme Court cases.

This week, the justices hear arguments in two cases that involve a federal law referred to as Section 230, which protects social media platforms from being held liable for the content users post.

The high court heard arguments in Gonzalez v. Google LLC on Tuesday and will hear Twitter Inc. v. Taamneh on Wednesday. The rulings in these cases, expected sometime this summer, could affect how social media platforms operate.

Under Section 230, platforms such as Facebook and Twitter are shielded from standards that, for example, newspapers are held to. While a news outlet can be sued for knowingly publishing false information, the same strict standards don’t apply to social media sites, due to Section 230 of the Communications Decency Act of 1996.

But some argue that tech platforms should be held accountable for false or dangerous information shared on the platforms. The two cases being brought before the Supreme Court this week “should be a very interesting debate, and it may not be one that divides cleanly along ideological lines, like we typically think of them, between the conservative and more liberal justices,” says Zack Smith, manager of the Supreme Court and Appellate Advocacy Program in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. (The Daily Signal is the news outlet of The Heritage Foundation.)

Smith, who is also co-host of the “SCOTUS 101” podcast, joins “The Daily Signal Podcast” to discuss how social media platforms could be affected by the cases being argued at the Supreme Court this week. https://www.dailysignal.com/2023/02/22/supreme-court-to-decide-futu...

https://www.npr.org/2023/02/21/1157683233/supreme-court-google-twit...

LAW - NPR
Supreme Court showdown for Google, Twitter and the social media world
February 21, 20235:00 AM ET
Heard on Morning Edition

In November 2015, ISIS terrorists carried out coordinated attacks across Paris, killing 130 people and injuring 400. Among the dead was Nohemi Gonzalez, a 23-year-old American studying abroad who was the first person in her large family to graduate from college. This week, lawyers for her family and others are in the Supreme Court challenging a law enacted more than a quarter century ago—a law that protects social media companies from what the families see as the role of internet companies in aiding and abetting terrorist attacks.

How the court rules could be a gamechanger for American law, society, and social media platforms that are some of the most valuable businesses in the world.

What the law says
At the center of two cases to be argued over two days is Section 230 of the 1996 Communications Decency Act, passed by Congress when internet platforms were just beginning. In just 26 words, Section 230 draws a distinction between interactive computer service providers and other purveyors of information. Whereas newspapers and broadcasters can be sued for defamation and other wrongful conduct, Section 230 says that websites are not publishers or speakers and cannot be sued for material that appears on those sites. Essentially, the law treats web platforms the same way that it treats the telephone. And just like phone companies, websites that are host to speakers cannot be sued for what the speakers say or do.

THE INDICATOR FROM PLANET MONEY
The 26 Words That Made The Internet What It Is
At least that is the way the lower courts have uniformly interpreted Section 230. They have said that under the law, social media companies are immune from being sued for civil damages over most material that appears on their platforms. That is so, even though, at the same time, the law has an apparently contrary objective: It encourages social media companies to remove material that is obscene, lewd, excessively violent, harassing or otherwise objectionable.

The attack at the heart of the arguments
This week's cases attempt to thread that needle. The Gonzalez family and the families of other terrorism victims are suing Google, Twitter, Facebook and other social media companies under the federal Anti-Terrorism Act, which specifically allows civil damage claims for aiding and abetting terrorism. The families allege that the companies did more than simply provide platforms for communication. Rather, they contend, that by recommending ISIS videos to those who might be interested, they were seeking to get more viewers and increase their ad revenue.

Representing the terrorism victims against Google and Twitter, lawyer Eric Schnapper will tell the Supreme Court this week that when Section 230 was enacted, social media companies wanted people to subscribe to their services, but today the economic model is different.

"Now most of the money is made by advertisements, and social media companies make more money the longer you are online," he says, adding that one way to do that is by algorithms that recommend other related material to keep users online longer.

What's more, he argues, modern social media company executives knew the dangers of what they were doing. In 2016, he says, they met with high government officials who told them of the dangers posed by ISIS videos, and how they were used for recruitment, propaganda, fundraising, and planning.

"The attorney general, the director of the FBI, the director of national intelligence, and the then-White House chief of staff . . . those government officials . . . told them exactly that," he says.

Google general counsel Halimah DeLaine Prado vehemently denies any such wrongdoing.

"We believe that there's no place for extremist content on any of our products or platforms," she says, noting that Google has "heavily invested in human review" and "smart detection technology," to "make sure that happens."

As Trump Targets Twitter's Legal Shield, Experts Have A Warning
Prado acknowledges that social media companies today are nothing like the social media companies of 1996, when the interactive internet was an infant industry. But, she says, if there is to be a change in the law, that is something that should be done by Congress, not the courts.

The choice before the court
Daniel Weitzner, the founding director of the MIT Internet Policy Research Initiative, helped draft Section 230 and get it passed in 1996.

"Congress had a really clear choice in its mind," he says. "Was the internet going to be like the broadcast media that were pretty highly regulated?" Or, was it going to be like "the town square or the printing press?" Congress, he says, "chose the town square and the printing press." But, he adds, that approach is now at risk: "The Supreme court now really is in a moment where it could dramatically limit the diversity of speech that the internet enables."

Section 230: A Key Legal Shield For Facebook, Google Is About To Change

There are many "strange bedfellows" among the tech company allies in this week's cases. Groups ranging from the conservative Chamber of Commerce to the libertarian ACLU have filed an astonishing 48 briefs urging the court to leave the status quo in place.

But the Biden administration has a narrower position. Columbia law professor Timothy Wu summarizes the administration's position this way: "It is one thing to be more passively presenting, even organizing information, but when you cross the line into really recommending content, you leave behind the protections of 230."

In short, hyperlinks, grouping certain content together, sorting through billions of pieces of data for search engines, that sort of thing is OK, but actually recommending content that shows or urges illegal conduct is another.

If the Supreme Court were to adopt that position, it would be very threatening to the economic model of social media companies today. The tech industry says there is no easy way to distinguish between aggregating and recommending.

TECHNOLOGY
Justice Clarence Thomas Takes Aim At Tech And Its Power 'To Cut Off Speech'
And it likely would mean that these companies would constantly be defending their conduct in court. But filing suit, and getting over the hurdle of showing enough evidence to justify a trial--those are two different things. What's more, the Supreme Court has made it much more difficult to jump that hurdle. The second case the court hears this week, on Wednesday, deals with just that problem.

What makes this week's cases so remarkable is that the Supreme Court has never dealt with Section 230. The fact that the justices have agreed to hear the cases shows that they have concerns. Justice Clarence Thomas has been outspoken about his view that the law should be narrowly interpreted, meaning little protection for social media companies. Justice Samuel Alito has indicated he might agree with that. But the views of the other justices are something of a black box.

The cases are Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh.

Jordan Jackson contributed to this story

https://www.brookings.edu/blog/techtank/2023/01/31/the-supreme-cour...

n February 21 and 22, 2023, the United States Supreme Court is scheduled to hear arguments in cases involving the content moderation practices of social media platforms. The Court has also indicated that it could later address the First Amendment issues involved in conflicting Court of Appeals decisions regarding content moderation laws passed by Texas and Florida. The February oral arguments will, no doubt, be revealing. At this point, however, the fact that the Court has bifurcated the content moderation issue into questions of platform behavior and state authority could be telling as to the intentions of at least some of its justices.

Tom Wheeler, senior fellow. GS
Tom Wheeler
Visiting Fellow - Governance Studies, Center for Technology Innovation
@tewheels
About two percent of appeals to the Supreme Court are granted certiorari and heard by the justices. That the February cases have made it over that hurdle suggests at least some members of the Court might have something to say on an issue that has become a fixture in the culture wars (and the trigger for the Texas and Florida laws).

Although only one of the February cases explicitly mentions it, at the heart of the content moderation issue is Section 230 of the Communications Decency Act. For almost 30 years, Section 230 has been the foundation governing expression on digital platforms. The provision was enacted in 1996 at a time when the online experience was dominated by America Online (AOL), Prodigy, Compuserve, and similar services that ran commentary bulletin boards. The goal of Section 230 was to protect online platforms like these from liability for the third-party content that they distribute. In the intervening decades, technology has changed online experiences dramatically, and the U.S. Congress has failed to re-address existing and emerging policy issues considering those changes. It now falls to the Supreme Court to grapple with the statute based on the practices of 21st century social media.

Famously labeled “The Twenty-Six Words That Created the Internet,” Section 230 did not “create the internet” but rather allowed for the creation of the economic model of social media platforms. What the statute “created” was the protected monetization of users’ personal information through the application of software algorithms to target both advertisements and information and to sell access to those targets. This is a legitimate online activity. The question is whether technology and marketplace changes, since 1996, have also changed what society has a right to expect from the online platforms engaged in that activity.

THE SECTION 230 LIFE CYCLE
The societal effects of Section 230 have gone through three stages. The original intent of Section 230, according to its authors, was to clarify the liability of online services for material published by others on their platforms. As online services evolved from bulletin boards to social media, however, the new social media companies took advantage of strict construction judicial interpretations to turn Section 230 from the protection of speech to the protection of a business model that profited from unfettered controversy. In its third phase, Section 230 has become a fixture in the culture wars.

Particularly when it comes to the culture wars incarnation, federal elected officials have used Section 230 as a tool for performance politics, but have done very little substantively. Concurrent with the lack of congressional action, the rigidity of Section 230’s black letter law has been interpreted by courts to short circuit the judicial capability to assess the application of common law principles, such as liability in light of new developments.

The Supreme Court appears primed to go where Congress and lower courts have feared to tread – and to do it in a bifurcated manner.

THE FEBRUARY CASES
Scheduled for February arguments are two cases in which private citizens are challenging the behavior of social media companies. Both February cases involve social media’s relationship to terrorist activity.

In Gonzalez v. Google, the family of Nohemi Gonzalez alleges Google was complicit in the November 2015 ISIS attack in Paris that killed 130 people – among them Ms. Gonzalez. The plaintiffs submit the Google-owned service YouTube was used by ISIS to recruit and radicalize combatants in violation of the Anti-Terrorism Act (ATA) and Justice Against Sponsors of Terrorism Act (JASTA). In addition, they allege that, because YouTube sold advertising on the ISIS videos and shared the revenue with ISIS, the platform provided material support to terrorists. The Ninth Circuit Court of Appeals dismissed the suit, finding that Section 230 protected YouTube from liability for videos produced by someone else, and that the sharing of revenue was simply the normal course of business and not in support of a specific group or ideology.

In Twitter v Taamneh, relatives of Nawras Alassaf, who was killed in a 2017 ISIS attack in Istanbul, take a related, but different approach to assigning culpability. They allege that by allowing the distribution of ISIS material without editorial supervision, companies such as Twitter, Google, and Facebook (now Meta Platforms) aided and abetted ISIS’ activity in violation of the ATA and JASTA. Interestingly, the issue of Section 230 is not a part of the Taamneh appeal. Although it was raised by the companies, the lower court never reached a conclusion and thus assessment of Section 230’s applicability was not part of the Ninth Circuit’s decision. The Taamneh plaintiffs did raise the shared revenue issue, however. The appeals court reversed the district court’s dismissal, finding that Twitter (along with Google and Facebook) could face claims that by failing to identify and remove the ISIS video, their actions played an assistive role.

The decision of the Supreme Court to hold the state action cases in abeyance while moving forward with the cases dealing with online behavior perhaps suggests a judicial strategy. Specifically, will the Court seek to deal with the topic of online content in a manner that is orthogonal to the absolutist debate that habitually surrounds Section 230?

DO ALGORITHMS CHANGE THE NATURE OF LIABILITY?
It is asserted by the Gonzalez and Taamneh plaintiffs, and the United States Department of Justice in its brief, that the Section 230 assumption that the “provider or user of an interactive computer service” is simply transporting the work of a third-party does not reflect how the companies have utilized advances in digital technology.

In 1996, at the time of Section 230’s enactment, online platforms such as Prodigy or AOL operated bulletin boards that hosted information posted by third parties. Today, the major online platforms have built their business around algorithms that utilize data collected from each user to select which postings to share with which users. This algorithmic recommendation, it is argued, transforms the platforms from a Section 230-protected “interactive computer service” to an unprotected “information content provider.” The platform companies argue that “recommending” is actually “organizing” and there is no other way to present information to users.

The co-authors of Section 230, Senator (then-Rep.) Ron Wyden (D-OR) and former Rep. Chris Cox (R-CA), filed an amicus curiae brief with the Court in which they, among other things, assert that Section 230 anticipated recommendation algorithms and the ability to “filter, screen, allow, or disallow content” as well as “pick, choose, analyze, or digest content.” The authors explain, “[r]ecommending systems that rely on such algorithms are the direct descendants of the early content curation efforts that Congress had in mind when enacting Section 230.”[1]

The brief of the United States Department of Justice argued that the recommendation constitutes the site’s own conduct and is thus outside the protections developed for third-party content. “If YouTube had placed a selected ISIS video on a user’s homepage alongside a message stating, ‘You should watch this,’ that message would fall outside Section 230 (c)(1),” the brief argues. “Encouraging a user to watch a selected video [e.g., by placing it on the “Up Next” sidebar] is conduct distinct from the video’s publication (i.e., hosting).”

“In contrast, social media, although constructed on an open platform, is a closed business in which algorithms are programmed to maximize revenue by selecting points of view and targeting their audience.”

Whether or not algorithmic promotion changes the nature of an online platform, and thus its liability protection, will no doubt be one of the major issues addressed by the Court in the Gonzalez case. While there are credible arguments on all sides, one thing is certain, that such recommendation within a closed and controlled platform moves today’s online activities away from the metaphorical open public square.

Such algorithmic promotion also differs from the idealized public square in that it is a compensated service. The internet per se is a public square in which anyone can set up their soapbox and in which all the world’s information and opinions are readily available. In contrast, social media, although constructed on an open platform, is a closed business in which algorithms are programmed to maximize revenue by selecting points of view and targeting their audience. How such construction affects the liability protections of Section 230 will, no doubt, be a major question before the Court.

Current Members

John G. Roberts, Chief Justice of the United States
John G. Roberts, Jr., Chief Justice of the United States,
was born in Buffalo, New York, January 27, 1955. He married Jane Marie Sullivan in 1996 and they have two children - Josephine and Jack. He received an A.B. from Harvard College in 1976 and a J.D. from Harvard Law School in 1979. He served as a law clerk for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit from 1979–1980 and as a law clerk for then-Associate Justice William H. Rehnquist of the Supreme Court of the United States during the 1980 Term. He was Special Assistant to the Attorney General, U.S. Department of Justice from 1981–1982, Associate Counsel to President Ronald Reagan, White House Counsel’s Office from 1982–1986, and Principal Deputy Solicitor General, U.S. Department of Justice from 1989–1993. From 1986–1989 and 1993–2003, he practiced law in Washington, D.C. He was appointed to the United States Court of Appeals for the District of Columbia Circuit in 2003. President George W. Bush nominated him as Chief Justice of the United States, and he took his seat September 29, 2005.

Clarence Thomas, Associate Justice
Clarence Thomas, Associate Justice,
was born in the Pinpoint community near Savannah, Georgia on June 23, 1948. He attended Conception Seminary from 1967-1968 and received an A.B., cum laude, from College of the Holy Cross in 1971 and a J.D. from Yale Law School in 1974. He was admitted to law practice in Missouri in 1974, and served as an Assistant Attorney General of Missouri, 1974-1977; an attorney with the Monsanto Company, 1977-1979; and Legislative Assistant to Senator John Danforth, 1979-1981. From 1981–1982 he served as Assistant Secretary for Civil Rights, U.S. Department of Education, and as Chairman of the U.S. Equal Employment Opportunity Commission, 1982-1990. From 1990–1991, he served as a Judge on the United States Court of Appeals for the District of Columbia Circuit. President Bush nominated him as an Associate Justice of the Supreme Court and he took his seat October 23, 1991. He married Virginia Lamp on May 30, 1987 and has one child, Jamal Adeen by a previous marriage. .

Samuel A. Alito, Jr., Associate Justice
Samuel A. Alito, Jr., Associate Justice,
was born in Trenton, New Jersey, April 1, 1950. He married Martha-Ann Bomgardner in 1985, and has two children - Philip and Laura. He served as a law clerk for Leonard I. Garth of the United States Court of Appeals for the Third Circuit from 1976–1977. He was Assistant U.S. Attorney, District of New Jersey, 1977–1981, Assistant to the Solicitor General, U.S. Department of Justice, 1981–1985, Deputy Assistant Attorney General, U.S. Department of Justice, 1985–1987, and U.S. Attorney, District of New Jersey, 1987–1990. He was appointed to the United States Court of Appeals for the Third Circuit in 1990. President George W. Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat January 31, 2006.

Sonia Sotomayor, Associate Justice
Sonia Sotomayor, Associate Justice,
was born in Bronx, New York, on June 25, 1954. She earned a B.A. in 1976 from Princeton University, graduating summa cum laude and a member of Phi Beta Kappa and receiving the Pyne Prize, the highest academic honor Princeton awards to an undergraduate. In 1979, she earned a J.D. from Yale Law School where she served as an editor of the Yale Law Journal. She served as Assistant District Attorney in the New York County District Attorney’s Office from 1979–1984. She then litigated international commercial matters in New York City at Pavia & Harcourt, where she served as an associate and then partner from 1984–1992. In 1991, President George H.W. Bush nominated her to the U.S. District Court, Southern District of New York, and she served in that role from 1992–1998. In 1997, she was nominated by President Bill Clinton to the U.S. Court of Appeals for the Second Circuit where she served from 1998–2009. President Barack Obama nominated her as an Associate Justice of the Supreme Court on May 26, 2009, and she assumed this role August 8, 2009.

Elena Kagan, Associate Justice
Elena Kagan, Associate Justice,
was born in New York, New York, on April 28, 1960. She received an A.B. from Princeton in 1981, an M. Phil. from Oxford in 1983, and a J.D. from Harvard Law School in 1986. She clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit from 1986-1987 and for Justice Thurgood Marshall of the U.S. Supreme Court during the 1987 Term. After briefly practicing law at a Washington, D.C. law firm, she became a law professor, first at the University of Chicago Law School and later at Harvard Law School. She also served for four years in the Clinton Administration, as Associate Counsel to the President and then as Deputy Assistant to the President for Domestic Policy. Between 2003 and 2009, she served as the Dean of Harvard Law School. In 2009, President Obama nominated her as the Solicitor General of the United States. A year later, the President nominated her as an Associate Justice of the Supreme Court on May 10, 2010. She took her seat on August 7, 2010.

Neil M. Gorsuch, Associate Justice
Neil M. Gorsuch, Associate Justice,
was born in Denver, Colorado, August 29, 1967. He and his wife Louise have two daughters. He received a B.A. from Columbia University, a J.D. from Harvard Law School, and a D.Phil. from Oxford University. He served as a law clerk to Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit, and as a law clerk to Justice Byron White and Justice Anthony M. Kennedy of the Supreme Court of the United States. From 1995–2005, he was in private practice, and from 2005–2006 he was Principal Deputy Associate Attorney General at the U.S. Department of Justice. He was appointed to the United States Court of Appeals for the Tenth Circuit in 2006. He served on the Standing Committee on Rules for Practice and Procedure of the U.S. Judicial Conference, and as chairman of the Advisory Committee on Rules of Appellate Procedure. He taught at the University of Colorado Law School. President Donald J. Trump nominated him as an Associate Justice of the Supreme Court, and he took his seat on April 10, 2017.

Brett M. Kavanaugh, Associate Justice
Brett M. Kavanaugh, Associate Justice,
was born in Washington, D.C., on February 12, 1965. He married Ashley Estes in 2004, and they have two daughters - Margaret and Liza. He received a B.A. from Yale College in 1987 and a J.D. from Yale Law School in 1990. He served as a law clerk for Judge Walter Stapleton of the U.S. Court of Appeals for the Third Circuit from 1990-1991, for Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit from 1991-1992, and for Justice Anthony M. Kennedy of the U.S. Supreme Court during the 1993 Term. In 1992-1993, he was an attorney in the Office of the Solicitor General of the United States. From 1994 to 1997 and for a period in 1998, he was Associate Counsel in the Office of Independent Counsel. He was a partner at a Washington, D.C., law firm from 1997 to 1998 and again from 1999 to 2001. From 2001 to 2003, he was Associate Counsel and then Senior Associate Counsel to President George W. Bush. From 2003 to 2006, he was Assistant to the President and Staff Secretary for President Bush. He was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 2006. President Donald J. Trump nominated him as an Associate Justice of the Supreme Court, and he took his seat on October 6, 2018.

Amy Coney Barrett, Associate Justice
Amy Coney Barrett, Associate Justice,
was born in New Orleans, Louisiana, on January 28, 1972. She married Jesse M. Barrett in 1999, and they have seven children - Emma, Vivian, Tess, John Peter, Liam, Juliet, and Benjamin. She received a B.A. from Rhodes College in 1994 and a J.D. from Notre Dame Law School in 1997. She served as a law clerk for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit from 1997 to 1998, and for Justice Antonin Scalia of the Supreme Court of the United States during the 1998 Term. After two years in private law practice in Washington, D.C., she became a law professor, joining the faculty of Notre Dame Law School in 2002. She was appointed a Judge of the United States Court of Appeals for the Seventh Circuit in 2017. President Donald J. Trump nominated her as an Associate Justice of the Supreme Court, and she took her seat on October 27, 2020.

Ketanji Brown Jackson, Associate Justice
Ketanji Brown Jackson, Associate Justice,
was born in Washington, D.C., on September 14, 1970. She married Patrick Jackson in 1996, and they have two daughters. She received an A.B., magna cum laude, from Harvard-Radcliffe College in 1992, and a J.D., cum laude, from Harvard Law School in 1996. She served as a law clerk for Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts from 1996 to 1997, Judge Bruce M. Selya of the U.S. Court of Appeals for the First Circuit from 1997 to 1998, and Justice Stephen G. Breyer of the Supreme Court of the United States during the 1999 Term. After three years in private practice, she worked as an attorney at the U.S. Sentencing Commission from 2003 to 2005. From 2005 to 2007, she served as an assistant federal public defender in Washington, D.C., and from 2007 to 2010, she was in private practice. She served as a Vice Chair and Commissioner on the U.S. Sentencing Commission from 2010 to 2014. In 2012, President Barack Obama nominated her to the U.S. District Court for the District of Columbia, where she served from 2013 to 2021. She was appointed to the Defender Services Committee of the Judicial Conference of the United States in 2017, and the Supreme Court Fellows Commission in 2019. President Joseph R. Biden, Jr., appointed her to the United States Court of Appeals for the District of Columbia Circuit in 2021 and then nominated her as an Associate Justice of the Supreme Court in 2022. She took her seat on June 30, 2022.

Note: I tried to add the Geni profiles to this project but was blocked from doing so. - Jacqueli Finley

https://www.law.com/supremecourtbrief/2023/02/22/supreme-court-brie...