By Joseph Murgida
Even though some scholars refer to Section 230 as the “26 words that created the Internet,” there are numerous misconceptions about its function and purpose. This month, the Supreme Court will consider the scope of Section 230’s liability protections in Gonzalez v. Google. Unfortunately, yet unsurprisingly, the Biden Administration has filed a brief that suggests the Court adopt an interpretation of Section 230 that would both destroy social media as we know it and endanger free speech online.
The facts of the case are undeniably heartbreaking. Nohemi Gonzalez, an American student living in France, was killed by ISIS during its wave of terror attacks there in 2015. Her family is now suing Google, the parent company of YouTube, because the platform hosted ISIS recruiting videos that were allegedly displayed by the site’s algorithm to users who had viewed other terror-related content. The Gonzalez family alleges that this makes Google and YouTube liable for the death of their daughter because ISIS used the internet so effectively to recruit fighters, despite substantial efforts by platforms to remove such content. They argue that Section 230 does not protect YouTube from liability for ISIS using their platform.
While all good-hearted folk should feel for the Gonzalez family and others affected by terrorism, the Supreme Court must nonetheless put emotion aside and interpret the statute as written. The 26 words of Section 230 are found in Section 230(c)(1), which reads: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, if you provide or use an interactive computer service and a lawsuit seeks to treat you as the publisher or speaker of information provided by someone else, then you are immunized from any claims arising under that lawsuit. The reason for this law is intuitive. Consider Facebook – a social media company with millions of users that upload and share content through the platform. While they employ useful tools, like algorithms, to eliminate illegal content from their platforms, the sheer quantity of users on the platform makes it impossible for Facebook to monitor the activities of every single user. If Facebook could be held liable for every user’s illegal conduct, then their existence would be impossible. No platform could properly monitor the daily conduct of millions of users, not even one as well-resourced as Facebook. Without Section 230’s 26 words, several of our tools for mass communication and instantaneous information-sharing will be lost.
Such a result would be dire for free speech and for conservatives. It is true that the Twitter Files are providing conservatives with evidence confirming long-standing fears that their speech online is getting censored. Regardless of the inappropriate pressures applied to social media platforms by the FBI and Biden White House, the disproportionately high levels of user interaction with conservative pages on these platforms prove that they are essential to conservative messaging. A 2021 NYU study found that right-leaning pages, such as Fox News, the New York Post, and The Daily Wire, frequently dominate the top ten profiles on Facebook with the highest engagement. While the Twitter Files might have disproven the study’s central assertion that no censorship is happening at all, the data from the study is still valuable for assessing whether social media is a net political benefit to the Right. The answer is unambiguously yes.
During the 2020 election, the three outlets listed above collectively generated more than 1.7 billion engagements, beating the engagement from multiple mainstream media pages, including CNN, NBC News, The New York Times, ABC News and NPR. Of these, only CNN placed in the top ten. Conservatives in the House of Representatives and intrepid investigative reporters can hold the FBI and White House accountable for governmental speech suppression efforts. Curtailing Section 230 protections, however, would destroy these platforms altogether, and thereby destroy an essential megaphone in the amplification of modern-day conservative speech. It would be self-defeating for conservatives to see the Gonzalez case as an opportunity for vengeance against “big tech censorship” – the Supreme Court ruling in favor of the plaintiffs would rob their quiver of its best arrow.
The Biden Administration understands this reality and is advising the Court to take a logically inconsistent approach to reading the statute. At first, the Administration correctly reads the statute to defend platforms’ right to legal immunity for decisions that they make regarding the removal of content. It is unsurprising that the Biden Administration would defend the rights of platforms to engage in content moderation, given how frequently they engaged in jawboning to pressure social media companies to censor more content – even content that the platforms themselves were uncomfortable censoring. Nonetheless, they do employ sound logic to defend Section 230’s protections for blocking and removal of content. They acknowledge that the definition of the term “publisher” within the statute is “best read…to refer to one who commits the common-law act of ‘publication’: the communication or dissemination of expressive material to another.” Thus, they naturally conclude that “a platform operator’s failure to block or remove material created and posted by third parties meet this element.” This conclusion aligns with the explicit principles that Section 230 is designed to protect to ensure a well-functioning internet.
The Biden Administration’s brief then argues that the Court should abandon this logic when it comes to displaying content, rather than removing it. Despite even acknowledging that “[Section 230 immunity] includes claims alleging that the defendant was negligent or reckless with respect to, or had actual or constructive knowledge of, the disseminated material’s objectionable character,” the government seems to want the Court to ignore this part of the statute. Instead, the Government conveniently excludes any protections for the display or presentation of content in its reading of 230. In other words, the Government wants the Court to rule that a publisher is shielded from liability from what others post on their website, so long as nobody can see it.
The Administration goes so far as to argue that YouTube’s use of the “Up Next” feature to suggest videos to users is not protected under the statute. Thus, platforms are only protected from actions they choose to take to make content visible. They attempt to justify this bizarre logic by asserting that “the effect of YouTube’s algorithms is still to communicate a message from YouTube that is distinct from the messages conveyed by the videos themselves.”
Even though the Government acknowledges that “actions a website takes to better display preexisting third-party content or make it more or less usable” does not constitute the “creation or development” of the content, they argue that “content development must go beyond the mere provision of basic organizational or display tools that Congress viewed as inherent in an interactive online service.” However, any organizational tool can be construed to communicate some sort of message. For example, this website organizes blog posts chronologically – the most basic organizational tool possible. Even that basic organizational tool could be construed to be a message from our organization to users of our website that they will want to read the most recent blog posts. There is no way that a publisher can organize or display content without users being able toread some sort of agenda into that presentation system.
Alleging that Section 230 immunity does not extend to publishers that send an “implicit message” would hold them liable no matter how they choose to display content. This scenario would force platforms to refrain from actively displaying content at all. Congress certainly never intended for this scenario to exist when they passed Section 230. Why would they protect platforms from being treated as publishers but not want to protect them from an action intrinsically linked to publishing? That would be akin to saying the First Amendment protects freedom of religion but doesn’t protect praying.
Internet platforms are well aware of this potentially dire possibility. Google warns that if they are unable to use algorithmic sorting to display content, Google Search would have to “display an unordered, spam-filled list of every website,” Gmail would be unable “to deprioritize spam,” and YouTube “would play every video ever posted in one infinite sequence—the world’s worst TV channel.” Facebook’s parent company, Meta, also cautions that users on its website would “quickly become overwhelmed with mountains of irrelevant content.” Americans for Tax Reform, in its joint brief with the Cato and R Street Institutes, advised the Court that jettisoning Section 230’s protections would disproportionately exclude “controversial but lawful speech about religion, politics and health.”
As conservative speech typically ranks amongst the most viewed political speech, this new world order would constrain messaging of conservative news outlets and personalities that have utilized these platforms to expand the scope of their voices. In other words, a world without political speech online silences conservatives more than the individual content moderation decisions of platforms have ever been able to do. The Court and congressional policymakers must abstain from accepting these deeply flawed arguments that seek to reverse Section 230’s protections that preserve the sanctity of the internet.
You can read ATR, R-Street Institute, and Cato Institute’s brief here.