February 22, 2023

Supreme Court Considers Section 230

The justices seem unlikely to upend the common understanding of a law being exploited by Big Tech.

Do Big Tech companies run platforms or are they publishers? That question is at the heart of the debate over the rampant censorship that has come to define Big Tech in recent years.

We’ve called it the redlining of the First Amendment, and it seems to apply very disproportionately to one particular political side. Well, the Supreme Court has been asked to weigh in, though the resulting ruling is unlikely to significantly redefine the Internet.

The justices heard arguments yesterday in Gonzalez v. Google and Taamneh v. Twitter, which have a lot to do with the question up top. Specifically, do the algorithmic recommendations of Google-owned YouTube or Twitter mean that those platforms are legally responsible for the content users are shown?

Relatives of Nohemi Gonzalez, an American student who died in a 2015 ISIS attack in Paris, claim Google should be held liable for her death because of its algorithmic promotion of Islamofascist videos on the platform. The plaintiffs argue this puts Google outside federal legal protections. The same goes for Taamneh, in which the plaintiffs argue that Twitter is liable for the death of Nawras Alassaf in a 2017 ISIS attack. As much as we sympathize with the victims’ families, arguing that ISIS terrorists would have remained peaceful if not for social media algorithms is a stretch, to say the least.

The broader argument goes back to one sentence in Section 230 of the 1996 Communications Decency Act: “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.”

In 1996, when we founded our humble publication, the Internet was comparably tiny, and the players who took part in it were largely actual publishers — established companies with more or less professionals doing the posting. Yet a court that year held a website liable for defamatory content posted by a user. In response, the law was passed as a way to protect tech companies from such liability.

When the 1996 law was passed, social media like Facebook wasn’t even yet a gleam in 11-year-old Mark Zuckerberg’s eye. Google began in January 1996 as a research project by two college students, though the company didn’t launch until 1998 and it didn’t become a generic verb for an Internet search until years later. YouTube hit the web in 2005. Google and YouTube are now the two most visited sites on the net.

In other words, the Internet as we know it today — dominated by user-generated content — didn’t really yet exist when Section 230 was written.

So, how did the justices respond to arguments? The general sentiment seemed to be unreceptive to changing the common understanding of Section 230 in order to hold Google liable, even in a sympathetic case. Several justices lamented the lack of clarity about the plaintiffs’ arguments, as well as the limits of their own technical understanding. “These are not, like, the nine greatest experts on the internet,” Justice Elena Kagan quipped.

Justice Clarence Thomas seemed to agree with the Ninth Circuit Court’s previous ruling that, as long as algorithms are applied neutrally, there is no legal difference between cooking videos and ISIS videos because the pursuits and interests of the user are not Google’s responsibility.

Not everyone agreed with that. “I’m not even sure any algorithm really is neutral,” Justice Neil Gorsuch opined. “Most algorithms are designed these days to maximize profits.”

Yet most of the justices seemed loathe to wade into a broader interpretive question that is better left to Congress. “Isn’t it better to keep it the way it is, for us?” asked Justice Brett Kavanaugh. “To put the burden on Congress to change that and they can consider the implications and make these predictive judgments?” Otherwise, he warned, “Lawsuits will be nonstop.”

Observers say there is a path for the justices to avoid Section 230 altogether by ruling only under applicable terrorism statutes. And something tells us that if Roberts can get out of what might be seen as interfering with a legislative prerogative, he will. In this case, that’s actually not a knock against him.

The debate over Section 230 and the ability of Big Tech platforms to censor speech really must be addressed by Congress, not the courts.

Federal law must address modern reality, not the reality of 27 years ago. If YouTube, Twitter, and other websites that were built by their users want to be free of liability for what is posted on their platforms, they should stop acting like publishers who claim authority over what can or can’t be said. If they want to squelch the speech of conservatives — like that of our team at The Patriot Post — then they should bear the legal responsibility of a publisher for having chosen the content on their sites. Otherwise, they should be declared the virtual public square and generally prohibited from making publishing choices.

Unfortunately, Democrats want more censorship via a tougher Big Tech crackdown on the supposed “misinformation” and “hate speech” of their political opponents. Those terms, of course, simply describe arguments with which Democrats vehemently disagree. Their response, though, isn’t just to stick their fingers in their own ears and yell “nah nah nah.” It’s to put their hand over your mouth and stop you from speaking. In some cases, it’s also to destroy your life for “wrongthink.”

Also unfortunately, Republicans don’t seem to really understand the problem. The real threat is not that a few select high-profile individuals have lost access to their social media accounts. It’s that nearly anyone who speaks certain verboten opinions will suffer reduced reach and, in some cases, profit thanks to the protection racket the Left has established.

Big Tech platforms currently act like publishers but with no responsibility for their choices, and that’s the problem. Whether by manipulated algorithms or other methods like bogus “community standards” enforced against only one side of a political debate, these Silicon Valley giants are putting their massive thumbs on the scales of free speech in America. That must end.

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