In what tech companies argued was a victory for “free speech,” the Supreme Court upheld a law that shields websites from liability regarding content posted by users.

Many have argued that major tech social media platforms opened themselves to being consider content “publishers” and not neutral “platforms” in various ways, including:

● Creating and Promoting Specific and Tailored Messages and Content to Users, Often in Concert with Government and Business

● Broadly censoring subjects and types of content, including crackdowns based on political, First Amendment-protected speech

● Demoting and shadow-banning unfavored points of view and topics, while promoting others

● Subjecting users to suspensions and bans, for engaging in Constitutionally protected speech

● Unevenly applying their own ambiguously and broadly worded “community standards,” in ways that are clearly biased for and against various views, subjects, and even persons 

The case involved, Gonzalez vs Google, was an extreme one, and did not seek damages from the companies involved because they banned content or user(s), but rather because they didn’t ban certain content.

As the court noted, “In 2015, ISIS terrorists unleashed a set of coordinated attacks across Paris, France, killing 130 victims, including Nohemi Gonzalez, a 23-year-old U. S. citizen.”

Plaintiffs in the case argued that Google could and should have taken down certain extremist violence-promoting Islamic posts and accounts under anti-terrorism laws. By not doing so, plaintiffs argued that Google was responsible for victims of a later terrorist attack.

The court found in favor of Google 9-0, in a short, unsigned opinion.

In the opinion, the court argued plaintiffs had failed to state a valid claim, even with respect to one that might stand up despite the scope of Section 230 protections for internet social media companies:

“The sole exceptions [to 230 protections] were plaintiffs’ direct and secondary-liability claims based on allegations that Google approved ISIS videos for advertisements and then shared proceeds with ISIS through YouTube’s revenue-sharing system. The Ninth Circuit held that these potential claims were not barred by §230, but that plaintiffs’ allegations failed to state a viable claim in any event.”

The ruling wasn’t really surprising, since the court had previously ruled in favor of 230 protections in a similar case, Twitter v. Taamneh.

In that case, as CNBC noted, Justice Clarence Thomas had questioned both the ability of platforms to comprehensively moderate content, and the tie between the internet rhetoric and incitements in question, and the specific terrorist event that occurred:

“As alleged by plaintiffs, defendants designed virtual platforms and knowingly failed to do ‘enough’ to remove ISIS-affiliated users and ISIS-related content—out of hundreds of millions of users worldwide and an immense ocean of content—from their platforms,” Thomas wrote in the court’s unanimous opinion.

“Yet, plaintiffs have failed to allege that defendants intentionally provided any substantial aid to the Reina attack or otherwise consciously participated in the Reina attack—much less that defendants so pervasively and systemically assisted ISIS as to render them liable for every ISIS attack.”

(“Supreme Court ruling continues to protect Google, Facebook, and Twitter from what users post,” 18 May 2023.)

Representatives and advocates for major social media tech companies were quick to paint the decision as a victory for “free speech.”

Chris Marchese, litigation center director for the industry group Netchoice, declared “This is a huge win for free speech on the internet. The Court was asked to undermine Section 230—and declined.”

Netchoice lobbies for corporations including Google, Meta, Twitter and TikTok. 

Other organizations, including the Electronic Frontier Foundation (EFF), have acknowledged Section 230 problems, but has said that overall, the law has been a positive for internet free speech:

“As the internet has grown, its problems have grown, too. But there are ways to address those problems without weakening a law that protects everyone’s digital speech. EFF has endorsed several paths in that regard, including comprehensive privacy legislation and renewed antitrust action. Removing protections for online speech, and online moderation, would be a foolish and damaging approach. The Supreme Court should use the Gonzalez case as an opportunity to ensure that Section 230 continues to offer broad protection of internet users’ rights.” 

(“EFF Tells Supreme Court: User Speech Must Be Protected,” 25 Jan 2023.)