The case centers on the interpretation of a law that has plagued social media users, especially conservatives, for some time by allowing tech giants to ban, promote, alter, or recommend content based on the user’s point of view.
Section 230(c)(2) of the Communications Decency Act also provides “good Samaritan” protection from civil liability for operators of interactive computer services that engage in the good faith removal or moderation of third-party material they deem “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
In short, under Section 230, online platform providers that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do.
The provision leaves it to companies to decide whether certain content should be removed and does not require them to be politically neutral. So “good faith removal or moderation” of third-party material has, in increasing measure, protected the notoriously left-wing big tech cabal, allowing them to adjust content as they wish.
Curiously, the content adjustment only seems to work against content of one perspective: the conservative one.
Which is not to say this is Big Tech’s first run at the Supreme Court.
In a statement accompanying the denial of the petition for certiorari, Justice Clarence Thomas wrote that “in an appropriate case, we should consider whether the text of this increasingly important statute [the Communications Decency Act] aligns with the current state of immunity enjoyed by Internet platforms.”
Thomas went on to say: “And in the 24 years since [its adoption, we] have never interpreted this provision. But many courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world.”
Congress passed the Communications Decency Act in 1996 after a New York court held an internet service provider liable for a defamatory statement posted on that website’s message board. It was sold to Americans as a necessary guardrail against pornography and obscenity online, while also allowing free speech to flourish.
But now, more than 25 years later, quite the opposite has happened: While Big Tech platforms have throttled, banned, or de-platformed undesirable (read: politically unpopular) speech online, pornography and obscenity have unfortunately been allowed to flourish.
The petitioners also allege that YouTube provided “material support” to ISIS without which “the explosive growth of ISIS over the last few years into the most-feared terrorist group in the world would not have been possible.” The petitioners claim that “videos that users viewed on YouTube were the central manner in which ISIS enlisted support and recruits from areas outside the portions of Syria and Iraq which it controlled.”
Thus far, the modern-day Roberts court is largely guided by textualism—faithfulness to the plain and ordinary meaning of words within the laws they interpret. So, the Gonzalez case provides a golden opportunity for the court to clarify exactly what the Communications Decency Act Section 230 shield covers and what it doesn’t.