Will the Supreme Court Blow Up the Internet?

Since at least 2020, Justice Clarence Thomas has essentially been pleading with lawyers to bring him “an appropriate case” challenging the scope of a statute Republican politicians love to hate: Section 230 of the Communications Decency Act. The law, which has been around since the mid-1990s, has been hailed as the Magna Carta of the internet and the 26 words that built the modern World Wide Web. Its text isn’t exactly a model of clarity, clearly belonging to the era of dial-up modems and free AOL CD-ROMs: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Whatever the precise meaning of these words, they’ve been a boon to internet companies, which have been broadly immunized from what everyday users post, and then some. The law allows companies to moderate what users post, without fear that they’ll be held liable if some truly harmful content, like posts inciting an insurrection on the Capitol, goes unchecked. In that regard, it’s a somewhat conservative-minded provision, and even good for business, but many Republicans, including the likes of Donald Trump and Josh Hawley, see Section 230 as a threat to conservative speech and viewpoints on Facebook, Twitter, and other platforms. Democrats, for their part, have their own reasons for disliking Section 230.

After Trump was banned for shitposting about overturning the last presidential election, he went as far as to sue Twitter, Facebook, and YouTube declaring Section 230 “an unconstitutional delegation of authority.” He was laughed out of court for his Twitter case in short order. Thomas, however, has echoed some of these same grievances. “We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms,” he acknowledged in an opinion that name-checked Trump and his troubles.

That very brief primer on Section 230 brings us to Gonzalez v. Google and Twitter v. Taamneh, a pair of cases the Supreme Court considered on Tuesday and Wednesday that, until this week, many believed could break the internet. They stem from lawsuits accusing YouTube and Twitter of facilitating the spread of content that led to Islamic State terrorist attacks in France and Turkey. The allegations in the two cases are essentially the same—the companies should be held liable for content that ultimately led to people dying. But only the case against YouTube turns on Section 230, and thus it’s the one that’s received the bulk of attention from scholars and advocates. (The case against Twitter turns on a different law that imposes liability whenever someone provides material support to someone else in an act of international terrorism.)

By their very nature, neither case is a walk in the park. For more than five hours in all, the justices were clearly struggling with what to do in the disputes—and at times appeared completely confused by the legal issues at stake, if not the workings of the internet itself. One area of consensus: the understanding that the Court’s eventual ruling could have serious consequences. “Would Google collapse and the internet be destroyed if YouTube and, therefore, Google were potentially liable for posting and refusing to take down videos that it knows are defamatory and false?” pondered at one point Justice Samuel Alito.

Of course, much has changed since the passage of Section 230, which arose at a time when chat rooms, message boards, and comments sections on news sites were the primary modes of interaction. This was long before targeted algorithms, personalized ads, and recommendations of all kinds—now the bread and butter of just about any major platform on the internet. There’s little dispute that all of that content curation and spoon-feeding is very much generated by the platforms. Should Section 230 immunize Instagram if, say, its algorithm feeds teens content that could lead to self-harm or other ills? “Every other industry has to internalize the costs of its conduct,” Justice Elena Kagan said on Tuesday. “Why is it that the tech industry gets a pass? A little bit unclear.”

Indeed, the Justice Department and a number of advocates are hoping the Supreme Court doesn’t give Big Tech a pass, but reaches some sort of middle ground: continuing immunity for content moderation decisions regarding third parties—think Trump getting booted off Twitter—but no immunity for a platform’s own targeted recommendations. In other words, YouTube can’t be blamed for wittingly or unwittingly failing to take down an ISIS video, but an algorithm that feeds that same video to a person who later becomes radicalized and commits an unspeakable act of violence may be fair game under the law.

The Supreme Court may well be tempted to go that route—or other routes, like drawing a distinction between speech and conduct—but anything that breaks new ground would mark a major policy shift, opening the door to the charge that they’re yet again making up law on the fly. “Isn’t it better … to keep it the way it is for us, and Congress—to put the burden on Congress to change that and they can consider the implications and make these predictive judgments?” Justice Brett Kavanaugh asked at one point. Along the same lines, Kagan, who hasn’t been shy about calling out the Supreme Court’s recent excesses, seemed keenly aware of the dangers of drawing lines in an area where the justices are novices at best. “I mean, we’re a court,” she said. “We really don’t know about these things. You know, these are not like the nine greatest experts on the Internet.” (As CNN recently reported, the justices’ own information-technology practices leave much to be desired.)

On Section 230, as in other areas of law with far-reaching consequences, more of Kagan’s humility would be welcome. Less would be more. If the Supreme Court wants a way out of the messiness of deciding these cases, or if the justices fear their “solution” may make matters worse, they could always dismiss them “as improvidently granted”—lawspeak for “Oops, we should’ve never taken these cases.” As internet law expert Eric Goldman wrote reflecting on the Google case, almost any way the Supreme Court goes could make a hot mess out of things. “I am slightly relieved about the tenor of the justices’ questions,” he wrote in a blog post. “However, I remain nervous that the court’s opinion will still change the status quo, potentially significantly, by opening up new doors for plaintiffs to explore.”