SCOTUS Case Could Change Section 230 Rules for Internet, Social Media (If Congress Doesn’t First)


The Supreme Court of the United States may now be poised to take action on the major lever Congress has over the Internet, particularly social media platforms.

Section 230 of the Communications Decency Act protects companies like Google, YouTube, Twitter, and Facebook from having the same responsibility for content on its platform that The Maine Wire has for what it publishes here.

The protection means that Twitter, for example, can’t be held liable for libelous Tweets, and YouTube isn’t liable for criminal content that may be uploaded to their video platform.

But in recent years, Section 230 has become the subject of heated debate over who is responsible for material posted online and what role Internet-based companies must play in censoring — or not censoring — content.

[RELATED: Angus King Doubles Down on “Enemies List” Censorship of Critics…]

Some have argued that the protections for large media companies contained in Section 230 are overbroad.

The family of the late Nohemi Gonzalez certainly thinks so.

Gonzalez was murdered in an ISIS attack in Paris in 2015, and her parents sued Google, which owns YouTube, because its algorithm had served videos from the Islamic State to potential recruits for the terrorist organization, their lawyer argued before the high court of Tuesday. Because of the subject matter involved, the argument started to get technical.

“It’s not like you have the nine greatest experts on the Internet here,” Associate Justice Elena Kagan told the family’s counsel.

Still, algorithms are things about which we all have to educate ourselves these days, and a second case involving a similar question – in this case, a Jordanian national killed in a terror attack on a nightclub in Istanbul – is headed for oral arguments in the same chamber soon.

Associate Justice Clarence Thomas, who has been skeptical of too broad a license allowed by Section 230 in the past, indicated in his questioning of the lawyers that if the algorithm treated all content equally, then YouTube and by extension Google, should not be held at fault.

As criticism of the social media giants intensified in Congress, Twitter executives were called to testify in Congress this month about their suppression of the New York Post’s story on Hunter Biden’s laptop just before the 2020 presidential election. That ordeal revealed that many elected, officials especially on right, may have an appetite for taking a hardline against the major social media firms.

Lawmakers are considering a host of changes, from small tweaks to very large overhauls, that would would alter Section 230 and, therefore, the Internet as we know it.

But the central political question relevant to Section 230 that emerged during th Twitter hearings was this: Can the social media companies like Facebook and Twitter have one standard for the political positions they like and another for those whose they don’t?

Coverage of the Twitter Files released by Elon Musk to a small group of hand-selected journalists earlier this year has shone a light on how that company “shadow-banned” conservative voices, effectively limiting how widely they could be heard. This “deamplification” limited the reach of an individual’s post without ever informing the individual that the algorithm had been tweaked against them.

These kind of past practices and policies hit home for Maine this week when independent journalist Matt Taibbi released an ‘enemies list’ that Maine senator Angus King’s campaign manager submitted to Twitter during his re-election campaign in 2018. That list included followers of both of King’s opponents.

Traditionally, the court gives a lot of weight to Congress’ intent when considering cases like these. When it passed the Communications Decency Act in 1995, Congress was trying to strike a balance between developing a free-wheeling and open Internet and controlling dangerous content, like the global recruitment of terrorists, trafficking in people, or the exploitation of minors. But the Internet of 1995 is altogether different from the Internet of 2023.

As more evidence mounts that the Silicon Valley-based monopolies may have abused their discretion to write algorithms that favored one political party over the other, Republicans in Congress increasingly want to use a possible re-write of Section 230 as cudgel to ensure fairness in how content is pushed.

There exists a debate even among conservatives on whether or not to re-write Section 230. Libertarians say “Hell no!” while some like Missouri Senator Josh Hawley think it’s time for a Fairness Doctrine.

That debate is bound to continue. On the issue the Gonzelez family is pressing, SCOTUS is due to decide by early summer.


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