The Supreme Court will hear oral arguments next month in Gonzalez v. Google and Twitter v. Taamneh, two cases that will weigh the limits of Section 230 of the 1996 Communications Decency Act, which shields Big Tech companies and other online platforms from lawsuits for hosting and moderating user posts.
In Gonzalez, the case has the potential to revise the way the internet’s legal rules have operated for decades. Justices will consider on Feb. 21 the scope of Section 230 and whether its protections remain when an online platform targets certain content based on a user’s past activities on the platform.
At the core of the lawsuit is the family of Nohemi Gonzalez, a 23-year-old U.S.-based woman killed in the 2015 Islamic State attack in Paris. The family argues Google‘s parent company, Alphabet, should be liable for allowing the terror group to use YouTube to help execute its attacks.
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Justices will also hear arguments on Feb. 22 in Taamneh, a similar case that focuses on an ISIS attack in Istanbul. The case aims to answer whether Big Tech companies can be held liable outside of Section 230 for allowing terror groups to use their platforms.
In the Taamneh dispute, lower courts ruled that the case should proceed but declined to answer questions such as whether Twitter was immunized under Section 230, deciding rather to analyze the scope of online platforms’ responsibilities under the Anti-Terrorism Act.
If the high court decides to roll back Section 230 protections that have long been upheld by lower courts, it could allow a flurry of lawsuits against companies that use complex algorithms that govern the ways content is displayed to online users and could further force them to become more transparent about their systems.
Last month, the Justice Department warned the Supreme Court against making an “overly broad” interpretation of Section 230.
Meanwhile, Google has pushed back on the Gonzalez petition. “This Court should not lightly adopt a reading of section 230 that would threaten the basic organizational decisions of the modern internet,” the company said in its brief.
Not much is known about where the nine justices stand on such issues related to the 1996 law, which was initially passed in an attempt to prevent minors from accessing pornographic content on the internet.
Boston College Law Associate Dean Daniel Lyons wrote in October that at least “Three conservative justices have suggested that lower courts may be interpreting Section 230 more broadly than the text may bear.”
One of those justices, Clarence Thomas, wrote in 2020 about Section 230, saying, “In an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.”
The cases coincide with efforts from Congress to reform Section 230 to create accountability for online platforms that aid the proliferation of terrorist content on the internet. Democrats have argued it propagates misinformation online by protecting tech companies from allowing such content by third parties, while Republicans have said the statute lets tech companies censor content online with an anti-conservative bias.
If the high court ruled in either case to maintain shielding Big Tech companies from liability over how they promote and amplify content, it could also usher in a new slate of legislation to open platforms up to such claims. Last month, Reps. David Cicilline (D-RI) and Ken Buck (R-CO) introduced one of the first bipartisan proposals to open platforms up to liability when they promote content that leads to harm.
“This legislation will fix the misinterpretation of Section 230 immunity and ensure that Big Tech can no longer profit off of promoting terrorists’ content on their platforms,” Buck said in a statement.
The Supreme Court’s Big Tech docket could grow past the two major cases already slated for consecutive February argument dates.
It is possible justices will also decide to hear Moody v. NetChoice, a pending case that challenges the constitutionality of a Florida law that disallows social media companies to suspend politicians’ accounts. The law also requires companies to make clear when and how they censor certain speech.
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Tech trade groups with large members, including Amazon and Twitter, argue the Florida law violates the First Amendment rights of private companies to have editorial discretion over what speech to disseminate.
A case that’s pending before the court and is similar to Moody is NetChoice v. Paxton, a challenge to a Texas social media law with similar measures to the Florida law.
