The Supreme Court faces the challenge of trying to manage the unmanageable on Tuesday when it hears a case that could drastically change the functioning of social media platforms. The case is Gonzalez v. Google and it deals with whether tech platforms can be legally liable for content posted, even from third parties.
Social media giants have created a “wild west” atmosphere over the years, where tons of crazy and potentially dangerous material circulate in the “virtual marketplace of ideas.” Section 230 of the 1996 Communications Decency Act, however, provides broad protections for these platforms from legal liability for the content posted. Basically, platforms are not considered publishers in the traditional sense, and thus not liable for content circulating on their sites.
The platforms have exploited these protections by washing their hands from certain kinds of content, such as terrorist ISIS videos posted on YouTube. That is the basis for the Gonzalez suit against Google, the conglomerate of which YouTube is a part. At the same time, however, tech platforms are happy to jump in to restrict content the social media giants don’t support, such as the Hunter Biden laptop story or concerns about COVID vaccines.
The court will hear a related case on Wednesday: Twitter v. Taamneh raises the question of aiding-and-abetting terrorism on on-line platforms through insufficient moderation practices.
The assessment of Section 230 by the Supreme Court is overdue. Justice Clarence Thomas has been itching to confront this matter, and last fall encouraged his colleagues to “address the proper scope of immunity under Section 230 in an appropriate case.” The court, in taking up the Gonzalez case, apparently now has that appropriate case, but also now has the enormous challenge of providing guidance for how tech platforms will function in the future.
Should the court rule that tech platforms can, indeed, be held accountable for third party content, operating such sites could get very expensive to manage. The platforms would be exposed to legal hassles at every turn. The logistics and expense of content moderation would also jump exponentially. There is also the concern that tech companies would have their free expression rights diminished as they are forced to tighten content restrictions beyond discretion normally assumed for communicators. Such overprotection could chill the free speech atmosphere of the tech giants, causing them to take down or limit otherwise constitutionally protected speech. That would also chill speech for social media participants as well.
SCOTUS, under Chief Justice John Roberts, has over the years generally supported robust freedom of expression in its decisions. It has protected the free expression of corporations and the free speech rights of protesters, even at soldiers’ funerals. It has protected filmmakers who produce videos showing animal cruelty and producers of violent video games who market to teens. The court even protected an estranged husband who posted social media threats against his wife. But today’s SCOTUS features four new justices from those seated for the earlier rulings, and public confidence in the management of social media has suffered in recent years.
The chaotic world of social media is crying out for guidance and perhaps restriction from SCOTUS. The internet has changed a great deal since 1996, and the court may now feel compelled to referee and draw some boundaries.
The challenge is how to do that while maintaining free speech protections for the social media companies and their users. Expect the court to perhaps encourage Congress to update Section 230 and clarify its intent with regard to tech’s liability for third party content. After all, it is Congress’s job to regulate, not the court’s. One of the reasons for the current confusion is Congress’s inability and unwillingness to legislate updates to Section 230, even though legislators have clearly known for some time that a revision is needed.
However the Court may rule in Gonzalez, the refereeing of internet speech won’t be finished.
The Court will next have to deal with laws passed in the Texas and Florida state legislatures that generally bar social media companies from censoring political speech. Those laws were passed on the assumption that big tech is stifling right-of-center political posts. Both laws have been challenged in the courts, but received conflicting rulings in separate appellate jurisdictions (Fifth Circuit and Eleventh Circuit). SCOTUS almost has to intervene — to clear up the confusion about whether states can themselves legislate against media platforms.
The Supreme Court has to find a magic wand to wave over these messy tech problems. Sadly, the justices have to do some broken field running on their own. The constitutional framers, well-intentioned as they were, could never have foreseen having to interpret the First Amendment with regard to a digital universe.
Jeffrey M. McCall is a media critic and professor of communication at DePauw University. He has worked as a radio news director, a newspaper reporter and as a political media consultant. Follow him on Twitter @Prof_McCall.