\n<\/p>\n
Since at least 2020, Justice\u00a0Clarence Thomas<\/strong> has essentially been\u00a0pleading<\/a> with lawyers to bring him \u201can appropriate case\u201d challenging the scope of a statute Republican politicians love to hate: Section 230 of the Communications Decency Act. The law, which has been around since the mid-1990s, has been hailed as the\u00a0Magna Carta<\/a> of the internet and the\u00a026 words<\/a> that built the modern World Wide Web. Its\u00a0text<\/a> isn\u2019t exactly a model of clarity, clearly belonging to the era of dial-up modems and free\u00a0AOL CD-ROMs<\/a>: \u201cNo provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.\u201d<\/p>\n Whatever the precise meaning of these words, they\u2019ve been a boon to internet companies, which have been\u00a0broadly immunized<\/a>\u00a0from what everyday users post,\u00a0and then some<\/a>.\u00a0The law allows companies to moderate what users post, without fear that they\u2019ll be held liable if some truly harmful content, like posts inciting an insurrection on the Capitol, goes unchecked. In that regard, it\u2019s a somewhat conservative-minded provision, and even good for business, but many Republicans, including the likes of\u00a0Donald Trump<\/strong> and Josh Hawley,<\/strong>\u00a0see Section 230 as a\u00a0threat<\/a> to conservative speech and viewpoints on Facebook, Twitter, and other platforms. Democrats, for their part,\u00a0have their own reasons<\/a> for disliking Section 230.<\/p>\n After Trump was banned for shitposting about overturning the last presidential election, he went as far as to\u00a0sue<\/a> Twitter, Facebook, and YouTube declaring Section 230 \u201can unconstitutional delegation of authority.\u201d He was\u00a0laughed out of court<\/a> for his Twitter case in short order.\u00a0Thomas, however, has echoed some of these same grievances. \u201cWe will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms,\u201d he\u00a0acknowledged<\/a> in an opinion that name-checked Trump and his troubles.<\/p>\n That very brief primer on Section 230 brings us to\u00a0Gonzalez v. Google<\/em><\/a> and\u00a0Twitter v. Taamneh<\/em><\/a>,<\/em> a pair of cases the Supreme Court considered on Tuesday and Wednesday that, until this week, many believed\u00a0could break the internet<\/a>. They stem from lawsuits accusing YouTube and Twitter of facilitating the spread of content that led to Islamic State terrorist attacks in France and Turkey. The allegations in the two cases are essentially the same\u2014the companies should be held liable for content that ultimately led to people dying.\u00a0But only the case against YouTube turns on Section 230,\u00a0and thus it\u2019s the one that\u2019s received the bulk of attention from scholars and advocates. (The case against Twitter turns on a different\u00a0law<\/a> that imposes liability whenever someone provides material support to someone else in an act of international terrorism.)<\/p>\n By their very nature, neither case is a walk in the park. For more than five hours in all, the justices were clearly struggling with what to do in the disputes\u2014and at times appeared completely confused by the legal issues at stake, if not the workings of the internet itself. One area of consensus: the understanding that the Court\u2019s eventual ruling could have serious consequences. \u201cWould Google collapse and the internet be destroyed if YouTube and, therefore, Google were potentially liable for posting and refusing to take down videos that it knows are defamatory and false?\u201d pondered at one point Justice\u00a0Samuel Alito.<\/strong><\/p>\n Of course, much has changed since the passage of Section 230, which arose at a time when chat rooms, message boards, and comments sections on news sites were the primary modes of interaction. This was long before targeted algorithms, personalized ads, and recommendations of all kinds\u2014now the bread and butter of just about any major platform on the internet. There\u2019s little dispute that all of\u00a0that<\/em>\u00a0content curation and spoon-feeding is very much generated by the platforms. Should Section 230 immunize Instagram if, say, its\u00a0algorithm feeds teens content<\/a> that could lead to self-harm or other ills? \u201cEvery other industry has to internalize the costs of its conduct,\u201d Justice\u00a0Elena Kagan<\/strong> said on Tuesday. \u201cWhy is it that the tech industry gets a pass? A little bit unclear.\u201d<\/p>\n Indeed, the\u00a0Justice Department<\/a> and a number of\u00a0advocates<\/a> are hoping the Supreme Court\u00a0doesn\u2019t<\/em>\u00a0give Big Tech a pass, but reaches some sort of middle ground: continuing immunity for content moderation decisions regarding third parties\u2014think Trump getting booted off Twitter\u2014but no immunity for a platform\u2019s own targeted recommendations. In other words, YouTube can\u2019t be blamed for wittingly or unwittingly failing to take down an ISIS video, but an algorithm that feeds that same video to a person who later becomes radicalized and commits an unspeakable act of violence may be fair game under the law.<\/p>\n The Supreme Court may well be tempted to go that route\u2014or other routes<\/a>, like drawing a distinction between speech and conduct\u2014but anything that breaks new ground would mark a major policy shift, opening the door to the charge that they\u2019re yet again making up law on the fly. \u201cIsn’t it better \u2026 to keep it the way it is for us, and Congress\u2014to put the burden on Congress to change that and they can consider the implications and make these predictive judgments?\u201d Justice\u00a0Brett Kavanaugh<\/strong>\u00a0asked at one point. Along the same lines, Kagan, who hasn\u2019t been shy about calling out the Supreme Court\u2019s recent excesses, seemed keenly aware of the dangers of drawing lines in an area where the justices are novices at best. \u201cI mean, we’re a court,\u201d she said. \u201cWe really don’t know about these things. You know, these are not like the nine greatest experts on the Internet.\u201d (As CNN recently reported, the justices\u2019 own\u00a0information-technology practices<\/a> leave much to be desired.)<\/p>\n On Section 230, as in\u00a0other areas of law<\/a> with far-reaching consequences, more of Kagan\u2019s humility would be welcome. Less\u00a0would<\/em> be more. If the Supreme Court wants a way out of the messiness of deciding these cases, or if the justices fear their \u201csolution\u201d may make matters worse, they could always dismiss them \u201cas improvidently granted<\/a>\u201d\u2014lawspeak for \u201cOops, we should\u2019ve never taken these cases.\u201d As internet law expert\u00a0Eric Goldman<\/strong>\u00a0wrote<\/a> reflecting on the Google case, almost any way the Supreme Court goes could make a hot mess out of things. \u201cI am slightly relieved about the tenor of the justices\u2019 questions,\u201d he wrote in a blog post. \u201cHowever, I remain nervous that the court\u2019s opinion will still change the status quo, potentially significantly, by opening up new doors for plaintiffs to explore.\u201d<\/p>\n<\/div>\n