Supreme Court Leaves Social Media Liability Shield Untouched

The Twitter logo is displayed on a mobile device in London on Nov. 7, 2013. Bethany Clarke/Getty Images

The Supreme Court crackdown on social media platforms’ liability shield for user content that many observers expected in a pair of recent high-profile cases never came.

Much to the relief of Silicon Valley, the Supreme Court sidestepped the issue in its much anticipated May 18 rulings in Twitter Inc. v. Taamneh and Gonzalez v. Google LLC. The decisions left in place the legal status quo regarding liability, at least for the time being.

Big Tech and its supporters had been deeply concerned that the court could eviscerate Section 230 of the federal Communications Decency Act of 1996, which generally prevents internet platforms and internet service providers from being held liable for what users say on them. They say the legal provision, sometimes called “the 26 words that created the internet,” has fostered a climate online in which free speech has flourished.

Politicians and activists are concerned about how the platforms moderate content.

Republicans and conservatives have complained for years about being censored by the platforms. They were outraged when platforms acted in concert to ban Trump in January 2021, blocked a New York Post article about Hunter Biden’s laptop computer, and silenced dissenting opinions about the origins of the SARS-CoV-2 virus and treatments for the COVID-19 disease it causes.

Democrats and liberals, by contrast, claim the platforms don’t do enough to suppress so-called hate speech and alleged misinformation.

Section 230

Meanwhile, Justice Clarence Thomas has frequently suggested that the Supreme Court should revisit the reach of Section 230.

In a concurring opinion in Biden v. Knight First Amendment Institute in April 2021, Thomas expressed concern that Big Tech companies have too much power over online activity.

“It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail,” the conservative justice wrote.

“But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is.”

Thomas compared social media platforms to common carriers such as public utilities and wrote that they should be “regulated in this manner.”

Before that, in a ruling in Malwarebytes Inc. v. Enigma Software Group USA in October 2020, Thomas wrote that he agreed with the court’s decision not to take up the case, but suggested the court should rein in Big Tech in the future.

When an “appropriate case” comes before the court, it “behooves us” to “decide the correct interpretation of Section 230.”

However, when an opportunity came to act on Section 230 in the Taamneh and Gonzalez cases, Thomas took a pass.

‘Liability Shielding Gift’

In the Taamneh case, the family of a Jordanian man killed in an ISIS terrorist attack in an Istanbul nightclub argued Twitter, Facebook, and Google should be held liable because they didn’t do enough to take down ISIS videos that arguably aided the terrorist group.

In the Gonzalez case, the family of a U.S. woman killed in an ISIS attack in Paris sued, claiming that Google, owner of YouTube, was liable under the federal Anti-Terrorism Act for aiding ISIS recruitment efforts by allegedly using algorithms to steer users to ISIS videos.

The Supreme Court unanimously sided with Twitter, Google, and Facebook, finding in the two decisions that the families had failed to prove a connection between the Silicon Valley giants and the deaths of their relatives, so it wasn’t necessary to deal with Section 230.

Thomas himself wrote the Taamneh opinion –the Gonzalez opinion was unsigned— apparently reasoning that the Taamneh case was not the right vehicle for advancing an interpretation of Section 230.

Thomas’s skepticism of Section 230 is shared by both President Joe Biden and former President Donald Trump.

In January, Biden said, “We need Big Tech companies to take responsibility for the content they spread. That’s why I’ve long said we must fundamentally reform Section 230 of the Communications Decency Act, which protects tech companies from legal responsibility for content posted on their sites.”

During his presidency, Trump called for the provision to be repealed.

“Section 230, which is a liability shielding gift from the U.S. to ‘Big Tech’ (the only companies in America that have it—corporate welfare!), is a serious threat to our National Security & Election Integrity. Our Country can never be safe & secure if we allow it to stand,” Trump wrote on Twitter in December 2020.

Petition Denied

The Supreme Court also passed up an opportunity to weigh in on Section 230 when it denied the petition in Doe v. Reddit on May 30. Reddit, the social media website, allegedly hosted child pornography.

Section 230 was amended in 2018 by the Fight Online Sex Trafficking Act (FOSTA), which created an exception that permits lawsuits against internet companies if the underlying claim is related to child sex trafficking.

Families who claimed to have been victimized by the pornographic material filed a class-action lawsuit under FOSTA.

The U.S. Court of Appeals for the 9th Circuit ruled in the case last year that FOSTA only applies if the litigants can demonstrate that an internet company “knowingly benefited” from the sex trafficking as a result of its own conduct.

The appeals court found that the allegations “suggest only that Reddit ‘turned a blind eye’ to the unlawful content posted on its platform, not that it actively participated in sex trafficking.”

The Supreme Court dismissed the petition in an unsigned order. No justices penned dissenting opinions. The court did not explain its decision.

Claims of Vindication

Christopher Newman, associate professor of Law at Antonin Scalia Law at George Mason University, said he could understand why social media platforms would claim Taamneh vindicated their position on the legal provision even though it failed to address it specifically.

“You could argue that this is a pro-230 ruling, not in the sense that they actually said anything about 230, but in the sort of reasoning that they used to decide that Twitter wouldn’t have any liability, anyway,” Newman told The Epoch Times in an interview.

“So this type of activity is part and parcel of the same train of thought that says just by being up there and letting people speak, we shouldn’t regard you as being liable for certain bad effects of their speech.”

“This was an opinion about the proper construction and scope of federal criminal law,” he added.

In Taamneh and Gonzalez, the court “basically said there would be no liability for a social media platform under the Anti-Terrorism Act simply because they allowed ISIS to use their platform—that’s not enough to count as aiding and abetting. And since that’s not enough to count as aiding and abetting, and thereby create liability in the first place, we don’t even have to ask whether Section 230 would save them from liability,” Newman said.

No Surprise in Rulings

But the controversy over Section 230 isn’t going away, the academic said.

Although a judicial paring back of the legal provision is “not on the radar screen” at the moment, “there have been all kinds of bills introduced or suggested trying to tweak Section 230.”

Veteran Supreme Court observer Curt Levey, an attorney who is president of the conservative Committee for Justice, also said he could see how Big Tech saw the rulings as a win.

“Given that the current regime is something that the platforms like, I suppose anything that delays a different regime is a victory in a way,” Levey told The Epoch Times in an interview.

And he wasn’t surprised by the rulings.

“I don’t know that serious people thought the court was going to get to 230,” he said.

Right now Section 230 is “interpreted very broadly,” he said. “I think they were concerned that the court might narrow that a little bit.”

“I don’t think the Supreme Court is inclined to do something dramatic when it can do something narrow,” Levey said.

State Social Media Statutes

But two states’ social media statutes are winding their way through the courts and are likely to be heard by the Supreme Court at some point, he said.

Florida is appealing a ruling by the U.S. Court of Appeals for the 11th Circuit that blocked portions of Florida Senate Bill 7072, which requires policy transparency and protects user access to platforms.

Republican Florida Gov. Ron DeSantis signed the law in May 2021 stating that it makes sure “real Floridians across the Sunshine State—are guaranteed protection against the Silicon Valley elites.”

“Many in our state have experienced censorship and other tyrannical behavior firsthand in Cuba and Venezuela. If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.”

Under the law, platforms are not allowed to ban political candidates and must make public and consistently apply their moderation rules. De-platforming candidates can lead to fines of up to $250,000 a day.

Florida filed a petition with the Supreme Court in September 2022 asking the court to review the case, Moody v. NetChoice (court file 22-277), which is still pending.

The U.S. Court of Appeals for the 5th Circuit has gone in the other direction, finding that a Texas law known as HB 20 was constitutional, rejecting the “idea that corporations have a freewheeling First Amendment right to censor what people say.”

The Texas law imposes limitations on the ability of platforms to moderate speech and mandates that the companies provide disclosure to the public. In May 2022, the Supreme Court temporarily blocked the law while an appeal moved forward.

“A year from now it’s possible the Supreme Court will be hearing the Florida and/or the Texas case,” Levey said.

“And that could change everything, but at least in the short term there’s nothing” in the Supreme Court’s May 18 rulings for social media companies “to worry about.”

‘Biggest Crony Gift’

Commentator Seton Motley, president of Less Government, a Washington-area nonprofit, was disappointed that the nation’s highest court missed a chance to rule on Section 230.

The legal provision “is perhaps the biggest crony gift in the history of government legislation,” Motley said by email.

“It is the height of unequal protection before the law. No one has blanket amnesty from third-party actions—except the largest companies in the history of the planet, who got to be the largest companies in the history of the planet—in large part due to this cronyism.

“There is zero legal justification for 230,” Motley said.