Section 230 agonistes
Why all the internet lawyers you know are freaking out about the Supreme Court
On Tuesday and Wednesday, the Supreme Court will hear oral arguments in a pair of cases that may lead to the most important legal decisions in decades about the fate of the internet. This sounds like an exaggeration, but it probably isn’t.
You can read about the litigation—Gonzalez v. Google and Twitter v. Taamneh—over at Lawfare. We also convened a discussion about Gonzalez and Twitter at the Brookings Institution last week, which you can watch here (or listen to on the Lawfare Podcast if that’s more your jam).
Gonzalez, the case that’s received the majority of the attention among internet law circles, addresses Section 230—the much-maligned statute that you’ve probably heard politicians complain about over the last few years. In brief, Section 230 provides platforms (like Facebook, Twitter, your neighborhood listserv, or the comments section of the New York Times cooking section) with immunity from liability for third-party content. The way I usually explain this is that it means that if I post something defaming you on Twitter, you can sue me for defamation, but you can’t sue Twitter. The statute also protects Twitter’s decision to remove my post defaming you.
This might sound fiddly and technical, but it’s hugely important for the structure of the internet as we know it today. The liability shield provides platforms the security of knowing that they won’t be sued into oblivion for every dumb thing someone posts on their website. And people post a lot of dumb things on a lot of websites.
But depending how the Court rules in Gonzalez, the statute might look very different. The petitioners in Gonzalez argue that algorithmic recommendations provided by huge, complex platforms like YouTube should not be covered by Section 230—on the reasoning that the recommendations YouTube provides are material developed by YouTube itself, rather than third-party material shared by users.
The specifics of the case have to do with an ISIS terrorist attack in which Nohemi Gonzalez, the family member of the petitioners, was killed. The petitioners argue that Google should bear some liability for algorithmic amplifications of ISIS content on YouTube. The other case that the Court is hearing, Taamneh, has to do with a similar set of facts but concerns a different legal issue: essentially, how much responsibility or knowledge a platform has to have concerning terrorist material on its services before it can be held liable for an attack under the Anti-Terrorism Act. The legal question here is very different, but it touches on the same general issue of to what extent platforms can held legally responsible for material on their services.
The question of why the Court took up these specific cases is a complicated one. Neither Gonzalez nor Taamneh serves up these legal questions in a particularly clean way (in legal jargon, we say that they aren’t a good “vehicle” for the issue). More generally, though, I would argue that Gonzalez and Taamneh represent a broader vibe shift in how Americans think about the role of big platforms like Google and Twitter—a vibe shift that’s been brewing more or less since 2016.
I wrote a big long essay about this for Brookings in 2022 that you can read here. But the short version is that Russian election interference in 2016, along with the way that Trump’s victory dredged up a great number of internet subcultures that had previously remained relatively obscure (remember Hillary Clinton’s bizarre speech explaining Pepe the Frog?), soured mainstream American culture on the role and influence of tech companies in public life. This souring has taken a number of forms in the years since and has become known as the “techlash.” Democrats got mad at platforms for not taking more content (Russian troll posts, far-right memes, Trump tweets) down. Then Republicans got mad at platforms for not leaving more content (far-right memes, Trump tweets) up. Elon Musk bought Twitter and everyone got mad about that too. Nobody agrees what they want the platforms to do, but everyone agrees that they’re not doing it right.
Gonzalez and Taamneh percolated in this intellectual soup. Something is wrong on the internet, and the Supreme Court is here to set things straight.
The problem is that this vibes-based analysis is actually not very good at a) identifying what the real issues here are, or b) figuring out how to fix them. My Brookings essay focused on a catastrophic 2018 piece of legislation known as FOSTA (the Allow States and Victims to Fight Online Sex Trafficking Act), which carved out nominally limited exceptions in Section 230 for content related to sex trafficking. FOSTA, I think, arose out of this kind of ambient sense that platforms needed to be whipped into shape and take more responsibility. What it resulted in was not any kind of increased investigation or penalty against sex traffickers but rather a wave of censorship, as platforms decided they didn’t want to take the legal risk of hosting even material related to adult, consensual sex work—decisions that have been hugely harmful to the sex workers who relied on those platforms to communicate with clients and with each other, advertise their business, and work safely. For sex workers and activists, this was not a surprise; they had warned from the beginning that this would happen.
FOSTA is a brutal demonstration of just how much damage can be done if judges and policymakers fiddle with Section 230 on the basis of vibes. I would be lying if I said I weren’t worried that the Supreme Court might send us down this path again. A similarly bad outcome could result from Taamneh, too: if the Court finds that platforms can be held liable for terrorist attacks just because they knew in the abstract that members of those terrorist groups were using their platform, websites will have an incentive to massively overremove any content that seems terrorist-y. This is bad, because that would most likely scoop up not only posts from, say, people affiliated with ISIS, but maybe also posts from people analyzing ISIS propaganda or even just users writing in Arabic.
There is a lot of bad stuff on the internet. There are a lot of people whose voices we don’t hear online because they’ve decided the bad stuff means it’s no longer worth it for them to participate in public conversation. I first started working on issues related to Section 230 when I co-wrote a Brookings report in 2016 about the growing problem of sextortion, which is in many cases enabled by overly hands-off attitudes from skeevy platforms. Those kinds of online attacks are very real and very upsetting.
This is a frustrating position to take. The problem with arguing that the courts and policymakers should leave Section 230 alone is that you end up sounding like you’re defending the status quo. And I suppose in one sense I am. But ultimately, I just don’t think that fiddling with platform liability in this way is likely to actually solve these problems.
What we run into with Gonzalez and Taamneh is the same problem we’ve seen again and again and again over the last few years: lots of people yelling, “Fix it!” and experts saying, “Uh, it doesn’t actually work that way.” Republicans, in particular, have so contorted themselves around loathing for tech companies that they’ve ended up in a pretzel of mutually contradictory positions about what platforms should and shouldn’t be allowed to do, all on the basis of demonstrably false claims about over-removal of conservative speech. The massive irony of right-wing demands to scrap Section 230 has always been that, in the absence of the statute, platforms would arguably have greater incentives to remove posts like Donald Trump’s for risk of being held responsible for his particular brand of shit-stirring.
People who work on internet law are by and large extremely anxious about Gonzalez. The whole thing may sputter out into nothing: if the Court finds in Taamneh that the petitioners lack a cause of action under the Anti-Terrorism Act, then Gonzalez would go away as well. But will the Court take that approach? Who knows. No law, just vibes.
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