How the Supreme Court Could Reshape Online Speech

The US Supreme Court is hearing oral arguments on two cases about online speech this week.
Emin Sansar/Anadolu Agency/Getty Images

The future of online speech is in the hands of the US Supreme Court. 

On Tuesday and Wednesday, the Supreme Court is scheduled to hear oral arguments in two high-profile cases involving Google, Twitter and Facebook that could reshape how people use the internet and what they can post online. Both cases stem from lawsuits brought by relatives of people killed in terrorist attacks, alleging the social media companies are liable for the harmful content that appears on their platforms. 

At stake are questions about whether these online platforms should be held legally responsible for content created by its users but promoted by the companies’ algorithms. Tech companies have successfully fought back against these types of lawsuits because of protections they receive under a 27-year-old federal law. 

But lawmakers on both sides of the aisle, including US President Joe Biden, have called for changes to what’s known as Section 230 because of growing concerns tech companies aren’t doing enough to safeguard user safety. Tech companies say removing this legal shield could hurt free expression because they could be hit with more lawsuits.

Eric Goldman, a professor at Santa Clara University School of Law, said tech platforms give people the ability to talk to others online. That could go away depending on what the Supreme Court decides. 

“If the Supreme Court says that’s a risky option, then the Supreme Court isn’t sticking it to big tech,” said Goldman, who wrote a brief supporting Section 230 protections. “It’s sticking it to all of us.” Companies could limit who can post on their platforms or scrap user-generated content, he added.

Here’s what you need to know about this high-stakes battle over online speech:

What is Section 230?

Section 230 is part of the 1996 Communications Decency Act, which shields platforms, including Google, Meta-owned Facebook, Twitter and other services from certain lawsuits over posts created by users. It also allows these platforms to take action against offensive content.

The provision states that no “interactive computer service” provider or its user should be treated as a publisher of third-party content.

The co-authors of Section 230 — US Sen. Ron Wyden, an Oregon Democrat, and former Rep. Chris Cox, a California Republican — told the Supreme Court in a brief that Congress created it “to protect Internet platforms’ ability to publish and present user-generated content in real time, and to encourage them to screen and remove illegal or offensive content.” Even back then, online services were facing lawsuits over user content. In 1995, for example, the New York Supreme Court ruled that Internet message-board platform Prodigy Services could be liable for publishing alleged defamatory content.

Section 230 doesn’t apply to content that violates criminal, intellectual property, state, communications privacy and sex trafficking laws.

Why should I care?

Section 230 was designed to encourage free speech online. But a Supreme Court ruling on the matter could alter how you use the internet and what you can post online. If an online platform is worried about more lawsuits, they could change how they moderate content and potentially increase the scrutiny over what you say.

“Without Section 230’s protections, many online intermediaries would intensively filter and censor user speech, while others may simply not host user content at all,” the Electronic Frontier Foundation said in a blog post about the topic. 

What cases are the Supreme Court hearing?

The Supreme Court is examining two cases involving online speech: Gonzalez v. Google and Twitter v. Taamneh. 

Gonzalez v. Google, which will be heard on Tuesday, centers on whether Section 230 protects online platforms including social networks from lawsuits when they recommend third-party content. The case stems from a lawsuit filed by the family of Nohemi Gonzalez, a 23-year-old American student who was killed in 2015 in terrorist attacks in Paris. The family alleged that Google-owned YouTube aided the ISIS terrorists because the video-sharing platform allowed them to post videos that incited violence and recruited supporters. The lawsuit also accuses YouTube of recommending ISIS videos to users. 

A district court and the US Court of Appeals for the Ninth Circuit ruled in Google’s favor, dismissing Gonzalez’s claims.

In Wednesday’s Twitter v. Taamneh case, the Supreme Court is examining whether people can sue online platforms for aiding and abetting an act of terrorism. The case involves the 2017 death of Nawras Alassaf, a Jordan citizen who was fatally shot in a nightclub in Istanbul during a mass shooting. ISIS claimed responsibility for the attack. Relatives of Alassaf sued Twitter, Google and Facebook, alleging that the platforms were liable under the Anti-Terrorism Act for aiding and abetting terrorism because the companies didn’t do enough to combat this harmful content. 

A district court dismissed the claims in the lawsuit, but the US Court of Appeals for the 9th Circuit reversed the decision. 

How have tech companies responded?

Google says the Supreme Court’s decision on Section 230 could “radically alter the way that Americans use the internet.”

“You would be left with a forced choice between overly curated mainstream sites or fringe sites flooded with objectionable content,” Google said in a post about the case. 

If the platform could get sued for content it recommends, consumers could have a tougher time finding content they want to view. The tech giant also says that removing Section 230 protections would make the internet less safe, hurt both big and small online platforms and cause websites to restrict more content or shut down some services because of the legal risks.

“Congress was clear that Section 230 protects the ability of online services to organize content,” Halimah DeLaine Prado, Google’s general counsel, said in a statement. “Eroding these protections would fundamentally change how the internet works, making it less open, less safe, and less helpful.” 

Other tech companies, including Reddit, Yelp, Microsoft and Meta, have also defended Section 230 protections in briefs filed to the court. 

“Exposing companies to liability for decisions to organize and filter content from among the vast array of content posted online would incentivize them to simply remove more content in ways Congress never intended,” Jennifer Newstead, Meta’s chief legal officer, said in a blog post about the topic.

Reddit said in its brief that users could become more wary about volunteering to moderate content on its platform or recommending content through actions such as “upvoting” because of legal risks.

In Twitter v. Taamneh, Twitter said it didn’t aid and abet an act of terrorism because the company didn’t intend to help terrorists, had rules against posting terrorist content and weren’t connected to the terrorist attack in Turkey. Facebook and Google-owned YouTube backed Twitter in a brief, stating that the appeals court’s ruling on the Anti-Terrorism Act is “incorrect” and could result in more lawsuits against any provider of goods or services such as an airline company, financial services provider and pharmaceutical business that terrorists abuse. 

Twitter, which no longer has a communications department, didn’t respond to a request for comment. 

What do US lawmakers think about this?

Democrats and Republicans, surprisingly, agree that reforms to Section 230 are needed. But their motives strongly contradict each other. 

Republicans accuse Big Tech of suppressing conservative voices, with US House Judiciary Committee Chairman Jim Jordan last week issuing subpoenas to the CEOs of Google’s parent company Alphabet, Amazon, Apple, Meta and Microsoft. 

Democrats argue that Section 230 prevents social media companies from being held accountable for failing to moderate hate speech, misinformation and other offensive content.

“We need Big Tech companies to take responsibility for the content they spread and the algorithms they use,” Biden wrote in an op-ed published in The Wall Street Journal in January.

What happens next?

The Supreme Court is expected to make a decision on the cases this year. The court is being asked to review other cases involving online speech. In January, it delayed saying whether it will hear cases about controversial laws passed in Texas and Florida that restrict how social media companies can moderate content.