Supreme Court Poised to Reconsider Key Tenets of Online Speech

Partisanship has made the logjam worse. Republicans, some of whom have accused Facebook, Twitter and other sites of censoring them, have pressured the platforms to leave more content up. In contrast, Democrats have said the platforms should remove more content, like health misinformation.

The Supreme Court case that challenges Section 230 of the Communications Decency Act is likely to have many ripple effects. While newspapers and magazines can be sued over what they publish, Section 230 shields online platforms from lawsuits over most content posted by their users. It also protects platforms from lawsuits when they take down posts.

For years, judges cited the law in dismissing claims against Facebook, Twitter and YouTube, ensuring that the companies did not take on new legal liability with each status update, post and viral video. Critics said the law was a Get Out of Jail Free card for the tech giants.

“If they don’t have any liability at the back end for any of the harms that are facilitated, they have basically a mandate to be as reckless as possible,” said Mary Anne Franks, a University of Miami law professor.

The Supreme Court previously declined to hear several cases challenging the statute. In 2020, the court turned down a lawsuit, by the families of individuals killed in terrorist attacks, that said Facebook was responsible for promoting extremist content. In 2019, the court declined to hear the case of a man who said his former boyfriend sent people to harass him using the dating app Grindr. The man sued the app, saying it had a flawed product.

But on Feb. 21, the court plans to hear the case of Gonzalez v. Google, which was brought by the family of an American killed in Paris during an attack by followers of the Islamic State. In its lawsuit, the family said Section 230 should not shield YouTube from the claim that the video site supported terrorism when its algorithms recommended Islamic State videos to users. The suit argues that recommendations can count as their own form of content produced by the platform, removing them from the protection of Section 230.

A day later, the court plans to consider a second case, Twitter v. Taamneh. It deals with a related question about when platforms are legally responsible for supporting terrorism under federal law.