How the Supreme Court Could Break the Internet

Online free speech has been under fire from Congress, past presidents, and pundits from both sides of the political aisle. Now, it faces a new threat: the Supreme Court.

Two upcoming Supreme Court cases, Gonzalez v. Google and Twitter v. Taamneh, will present a significant challenge to the liability immunity granted to Internet Service Providers (ISP) as the complainants attempt to hold the tech giants liable for terrorist content posted on their platforms and allegedly promoted by their algorithms. By posing a threat to this broad liability immunity, these cases also pose a major threat to existing speech protections and to the Internet as we know it. The Supreme Court should side with Twitter and Google, upholding the immunity granted by Section 230 of the Communications Decency Act of 1996.

Section 230 protects online speech by shielding platforms like Google and Twitter from liability for the speech of their users. Search engines and social media sites are protected because they are considered “platforms” rather than “publishers.” Under the provision, ISPs can engage in the good faith moderation of content hosted on their sites, but they do not actively curate content. This practice contrasts with the practices of publishers like newspapers that actively curate and edit the content they host. The publisher-platform distinction is important because it carries significant legal consequences. If someone posts libelous content on Twitter, Twitter can’t be held legally liable, but if a newspaper like The New York Times publishes the same content, they could face serious legal consequences.

The protections provided by the “platform” classification of ISPs are what make the modern Internet possible as they allow Internet companies to be economically viable. If a site could be sued or shut down for the content a user posts, the risks would be astronomical, making it nearly impossible for a site, especially a startup, to exist for any extended period of time. A report from the Engine Foundation, a tech policy non-profit, found that tech companies face major costs for lawsuits, with lawyer fees alone costing between $130,000 to $730,000 for a single lawsuit. Therefore, removing liability immunity by repealing or reforming Section 230, and thereby opening up Internet platforms to greater liability and more lawsuits, would have disastrous consequences for the tech industry. Such a change in policy would be a serious hit to big tech, but tech startups and smaller competitors would feel the pinch even more, thereby reducing consumer choice. Conservatives often complain about sites silencing them or shadowbanning their content, but without Section 230, they wouldn’t have alternative platforms like Parlor and Truth Social. Therefore, along with encouraging growth in the tech industry, the Section 230 formula is the secret sauce that keeps our Internet speech free and open.

Without these protections, websites like Twitter would be forced to intensely monitor content, searching for even the smallest infraction that could be seen as illegal or libelous, all to avoid potential lawsuits. Users of all political stripes are already concerned with over-moderation, whether it be anti-conservative bias or minority communities overly policed by content moderators. Removing Section 230 protections would ramp up content moderation tenfold as social media sites scramble to avoid lawsuits, only heightening these existing concerns.

Despite the risks of Section 230 reform, pressure is mounting from all sides to curb online speech through legal means. Republicans like Senator Josh Hawley and Democrats like Elizabeth Warren have united against online speech protections, pushing to repeal Section 230, force ISPs to moderate content as politicians see fit and crack down on “disinformation.” Even Justice Clarence Thomas has suggested that it’s time to begin “pairing back the sweeping immunity” tech companies currently experience.

However, these proposals to roll back or even strip ISPs of their immunity protections flies in the face of the American legal tradition of protecting free speech. Section 230, on the other hand, fits neatly within this legal tradition, which includes cases like Smith v. California (1959) where the Supreme Court decided that intermediaries, such as bookstores, are protected against liability for the content of the materials they carry. In past cases, the Court has erred on the side of protecting speech, rather than regulating it, and they should do the same now.

As the ACLU and other civil liberties organizations stated in their recent amicus brief presented to the Court, ruling against the companies in Gonzalez and Twitter could end up “chilling platforms,” forcing them to over-moderate their content to eliminate anything that might bring them before a judge.

Our pursuit of justice should never come at the expense of our most basic civil liberty: freedom of speech. In a world where truth is contested and politics are fickle, a free and open Internet is a necessary part of protecting this freedom. Section 230 has been the key to our free and open Internet, and eliminating it now would be a deeply dangerous move.

The post How the Supreme Court Could Break the Internet was first published by the Foundation for Economic Education, and is republished here with permission. Please support their efforts.

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