Though there is broad agreement that Section 230 needs an update, a partisan battle is keeping the stalemate going
After hearing two cases that seek to hold Google and Twitter responsible for third-party content on their platforms, the U.S. Supreme Court appears unlikely to meddle with Section 230 of the Communications Decency Act, legal experts told TheWrap.
The reason may have less to do with the complexity of operating under a 1996 federal code immunizing internet companies from liability, and more to do with the widening political divide.
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“This is a non-partisan issue,” said Douglas Mirell, a veteran litigator in First Amendment, entertainment and other media law who has written extensively about Section 230. “But the sides have problems with Section 230 for very different reasons: The progressive left says it’s allowing too much hate speech and disinformation … the right, for its part, says what’s going on here is that platforms aren’t allowing enough conservative voices to be heard.”
Section 230, enacted in 1996 and slightly tweaked in 2018 to combat sex trafficking, gives internet companies – from goliaths like Google and Meta on down to the smallest online publishers – broad immunity for user-created content like tweets, comments or livestreams. They are treated more like telephone companies than publishers, who are still liable for defamatory content in legacy media.
The 27-year-old federal code is explicitly raised in only one of the cases before the Supreme Court, but is central to both.
In the first case, Google vs. Gonzalez, the family of a study-abroad student killed in the 2015 terror attack on Paris alleges that YouTube algorithms aided and abetted terrorism by recommending ISIS recruitment videos. While the case is rooted in the Antiterrorism Act, Google vs. Gonzalez strikes at the core of Section 230, as lawyers for the Gonzalez side argued that an internet company’s algorithmic recommendations constitute “publishing conduct.”
The other case, Twitter vs. Taamneh, pits Elon Musk’s latest adventure against the family of a Jordanian citizen killed in an ISIS attack on an Istanbul nightclub.
At the center of the debate are the algorithms that recommend content to users, and whether those recommendations cross the line into publishing. There’s little common ground to work with, and it seems the stalemate will continue for now: Several Supreme Court justices this week during questioning expressed wariness about doing anything to upend 230.
“These are not, like, the nine greatest experts on the internet,” Justice Elena Kagan joked at one point.
She may be right, but the trouble is the only alternative — the 535 voting members of Congress — aren’t exactly online geniuses, either. And Kagan’s sentiments, along with Justice Amy Coney Barrett’s questions probing whether the court could rule without changing 230, suggest the court is inclined to kick this political football to Congress.
“The most likely outcome is the punt,” Mirell said. “The second most likely outcome is one in which the court says, ‘We’ve got concerns about how algorithms recommend third-party content’ — and that could cross the line that Section 230 draws between third-party information, and what’s being published by the site itself.”
There are those who would lean toward intervention. Justice Clarence Thomas, for instance, expressed skepticism about the broad protections of Section 230, suggesting in his notes about a declined case that if Congress wouldn’t clarify the issue, the Supreme Court should find an appropriate case.
Oddly enough, it’s is a lack of dissent — unanimity, even — in the judicial system that’s aiding and abetting this stalemate, Jeff Kosseff, a cybersecurity law professor and author of “The Twenty-Six Words That Created the Internet,” told TheWrap. (His book’s title is a reference to the brevity of Section 230.)
The best way to spur on a Supreme Court decision is a “circuit split,” or when two federal circuit courts rule differently on the same issue. But the question of whether 230 applies to algorithms “is something that the court is not divided on,” Kosseff said, noting that the 9th and 2nd Circuit Courts have been aligned on those issues.
Kosseff agrees with Mirell that as long as the Supreme Court doesn’t have to rule on Section 230, it probably won’t — but “the punt” won’t move things along: “The issue is, Congress is just very unlikely to solve this,” he said. “You have two very different views on what the issues actually are.”
Cautious as the court may be to intervene, Kosseff said he’s encouraged that the justices at least seem to be properly invested in not messing this up.
“They’re taking it very seriously,” he said. “For the Gonzalez case, they only budgeted 70 minutes, and gave it more than two and a half hours. It shows they’re not just trying to easily decide based on political winds, but recognize that their decision could have a really big impact on the internet, and want to get it right.
“The arguments and questions are different from what you hear in Congress, where it’s all hyperbole,” he added. “They asked good, technical questions … but I never do a good job of prediction how they are going to rule.”
And that won’t happen for months: Decisions in either case are not expected until late summer.