Supreme Court punts Section 230 debate back to Congress

The Supreme Court’s decision to dodge weighing in on a controversial liability shield for internet companies has punted the issue back to Congress.

Expectations had run high that the justices would be the ones to significantly narrow the provision, known as Section 230, when the court agreed to directly take up the question of how far its protections reached.

But the court resolved the cases against Twitter and Google on other grounds Thursday, leaving Section 230 unscathed until Congress acts or the high court takes up another case. And despite bipartisan criticism that the provision makes the tech industry unaccountable, lawmakers face a stalemate on how to reform it. 

So, barring a surprising legislative compromise, Section 230 is here to stay, and internet companies are breathing a sigh of relief.

“The court went to great lengths — and really discussed Section 230 — to avoid putting its finger on the scales on either side when it comes to Section 230 itself,” said Carl Szabo, vice president and general counsel at NetChoice.

“And I think that I am hoping that other courts recognize that and see that it is not the role of the judicial branch to write laws. If 230 is to be adjusted, it should be done at the legislative branch. And what I’m hoping is that lawmakers simultaneously recognize the decision that came out of here,” he continued.

Passed as part of the Communications Decency Act of 1996, Congress enacted Section 230 to encourage the emerging internet industry to take down harmful posts on their platforms while protecting them from a deluge of lawsuits for third-party content.

As technology behind the modern internet advanced and the industry rapidly changed, calls for reform have grown on both sides of the aisle.

Democrats broadly argue that the provision allows tech companies to host too much misinformation and hate speech without facing consequence, whereas Republicans argue the provision gives tech companies the ability to moderate content in a way the GOP alleges is done with an anti-conservative bias. 

Those opposite viewpoints, however, have created a legislative stalemate.

And even after the court’s punt, it seems unlikely that Congress will reach a compromise.

In fact, lawmakers from both parties doubled down on their calls in the wake of the Supreme Court’s decision.

Senate Judiciary Chairman Dick Durbin (D-Ill.) urged the passing of several online child safety bills, saying Congress “must step in” after the court “passed on their chance to clarify that Section 230 is not a get-out-of-jail-free card for online platforms when they cause harm.” 

“Enough is enough. Big Tech has woefully failed to regulate itself,” Durbin said in a statement. 

Except for a carveout lawmakers passed in 2018 that makes it easier to take legal action against websites for enabling sex trafficking, Section 230 remains largely unchanged more than a quarter-century after Congress passed it.

Internet companies have fought against various proposed changes.

After the Supreme Court agreed in October to directly take up the question of Section 230’s scope — specifically, how it applied to platforms’ algorithmic content recommendations —Yelp, Wikipedia and Indeed were among the many companies filing briefs warning that narrowing its protections would upend the building blocks of the modern internet.

In the end, the justices didn’t weigh in on Section 230, instead ruling the companies being sued weren’t liable in the first place and didn’t need any protection.

Two families of ISIS terrorist attack victims had accused social media giants of aiding and abetting the terrorist group. The relatives argued the companies did not do enough to stop the terrorist group from taking advantage of platforms’ recommendation algorithms to recruit.  

The court unanimously ruled the aiding and abetting law required showing a greater nexus between the platforms and the terrorist attacks in question. Whether the companies — Twitter, Facebook and Google — could invoke Section 230’s protections became irrelevant.

Writing for the unanimous majority was Justice Clarence Thomas, who has publicly expressed the most skepticism among his colleagues about Section 230’s reach. 

Groups that represent industry players cast the decision as a win for free speech online and protecting companies’ ability to serve users. 

Michael Cheah, general counsel at internet.works, said the outcome shows that sympathetic plaintiffs don’t always have the right to sue internet companies, even without Section 230. 

“I think what this case helps illustrate is that just carving out Section 230 doesn’t do that, because at the end of the day, [if] you’re suing someone for real-world-based harm based on third-party content, it’s going to be very hard to sue them,” Cheah said.

Prior to Thursday’s decision, several justices signaled they came to view the dispute as a bad vehicle for resolving the battle over Section 230. 

As the oral argument fell into thorny debate over YouTube thumbnails and the particulars of the algorithms in question, the justices repeatedly expressed confusion.

“These are not, like, the nine greatest experts on the internet,” Justice Elena Kagan joked at one point, eliciting laughter in the courtroom.

Justice Ketanji Brown Jackson, who joined Thomas’s opinion, wrote separately to stress the outcome was a narrow resolution.

“Other cases presenting different allegations and different records may lead to different conclusions,” Jackson wrote.