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Supreme Court Delivers Ruling on Section 230

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OPINION: This article may contain commentary which reflects the author's opinion.


The Supreme Court passed up the chance on Thursday to take a case that many believe could have changed social media and the Internet forever.

The nation’s highest court did not take a case that could have clarified the scope of the federal liability shield known as Section 230, which protects internet companies from many legal claims regarding content posted by users.

“In a pair of rulings Thursday morning, the justices shut down lawsuits seeking to hold giants like Google and Twitter liable for terrorism-promoting content on their platforms, but the court nixed the suits without issuing any sweeping pronouncements on the immunity provision that has come under increasing fire from both Republicans and Democrats,” Politico reported.

“The cases mark the first time the high court dealt with Section 230 of the Communications Decency Act, the 1996 law that gives internet websites broad liability protections for most third-party content posted on their sites. It marks a major win for tech companies that have argued narrowing their decades-old liability shield could be disastrous for the internet, leading to a greater influx of hate speech and extremist content online,” the outlet added.

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In October 2020, Supreme Court Justice Clarence Thomas took issue with Section 230 in a dissent in the Malwarebytes Inc. v. Enigma Software Group USA case.

“Courts have long emphasized nontextual arguments when interpreting 230, leaving questionable precedent in their wake,” the justice said. “Extending 230 immunity beyond the natural reading of the text can have serious consequences,” he added, and specified his concern about giving companies immunity from civil claims for “knowingly host[ing] illegal child pornography” and “for race discrimination.”

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“We should be certain that is what the law demands,” he said.

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Back in March, Professor Adam Candeub, who led President Trump’s efforts to reinterpret Section 230, argued that the protections essentially give Big Tech a “get-out-jail-free card” in censorship lawsuits.

In an article for the Federalist Society, Candeub warned that the case rejected by the Supreme Court this week could unintentionally allow censorship given more platforms would be liable for the content they refuse to take down or fail to take down quickly enough.

“The Gonzalez lawyers are concerned about insufficient content moderation, not just of terrorist activity, but also of constitutionally protected hate speech. This leads them to advance inconsistent positions. In their cert petition and merits brief, they argue for limiting Section 230(c)(1) with respect to targeted recommendations. But in an amicus brief submitted in the constitutional challenge to Florida’s social media law, which limits platforms’ ability to censor content in a viewpoint-discriminatory manner, the same legal team argues for expanding Section 230(c)(1) to protect platform censorship. The parties in Gonzalez v. Google may not give the Court the opportunity to fully consider Section 230, as both petitioners and respondent seem, in certain respects, to be on Big Tech’s side,” Candeub wrote.

“Google’s three-prong test extends Section 230’s platform protection from suits alleging unlawful content in platform users’ posts to suits by users themselves alleging platforms’ wrongdoing that somehow involves user content. Courts employing a version of this test have used Section 230(c)(1) to block users’ suits for the platform’s fraudulent statements concerning content moderation policies, violation of contract obligations concerning platforms’ duties to publish content, and civil rights claims for wrongful account termination,” he said.

Candeub concluded: “The Supreme Court must closely analyze the three-prong test because parties have converged on it in a rather strange way. Gonzalez’s petition for certiorari sought review of the “traditional editorial function” interpretation of Section 230(c)(1) which lower courts have drawn from misreading Zeran—and that was the question on which the Supreme Court granted review. Then, the Gonzalez plaintiffs submitted an amicus brief in the State of Florida’s certiorari petition appealing the 11th Circuit’s ruling striking down parts of the Florida social media law, S.B. 7072. In their amicus brief, the Gonzalez plaintiffs urged that the traditional editorial function interpretation preempts the Florida social media law—an argument Big Tech has made often and vociferously. It is difficult to see how such an argument helps the Gonzalez plaintiffs at all.”

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