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Supreme Court: Section 230 Ruling’s Effect on Social Media

This week, the U.S. Supreme Court heard oral arguments in two cases that challenge the liability of social media platforms for what appears on their sites. One Supreme Court case, Gonzalez v. Google, challenges Section 230 of the 1996 Communications Decency Act.  

The second Supreme Court case, Twitter, Inc. v. Taamneh, concerns content published on Twitter by ISIS. For this case, the Justices will decide if Twitter and other social media platforms could be sued for aiding and abetting international terrorism.

ISIS Videos Posted to Social Media

The first Supreme Court case, Gonzalez v. Google, concerns a college student who traveled to Paris and was killed in a terrorist attack that ISIS orchestrated in November 2015, according to Time magazine. This lawsuit claims that by creating thumbnails of ISIS videos for users searching YouTube, Google became a publisher of content and not a third party.

According to the plaintiffs’ petition for a writ of certiorari from the Supreme Court’s website, this case is about “… whether section 230 applies to these algorithm-generated recommendations is of enormous practical importance. Interactive computer services constantly direct such recommendations, in one form or another, at virtually every adult and child in the United States who uses social media.

“To be sure, many of those recommendations, such as of a clever TikTok dance, are benign. But other recommendations suggest that users look at materials inciting dangerous, criminal or self-destructive behavior.

“In this case the defendants are alleged to have recommended that users view inflammatory videos created by ISIS, videos which played a key role in recruiting fighters to join ISIS in its subjugation of a large area of the Middle East, and to commit terrorist acts in their home countries. Application of section 230 to such recommendations removes all civil liability incentives for interactive computer services to eschew recommending such harmful materials, and denies redress to victims who could have shown that those recommendations had caused their injuries, or the deaths of their loved ones.”

Google’s response said that their algorithm simply organizes files based on search terms and as such does not constitute republishing.

[Related article: The Supreme Court and the Current Immigration Crisis]

What Is Section 230 of the Communications Decency Act?

Changes in the interpretation of Section 230 would put a much bigger burden on social media platforms as to the regulation of content that appears on their servers. According to the Legal Information Institute, Section 230 is part of Title 47 of the U.S. Code and states that:

  • “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.”
  • “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
  • “No provider or user of an interactive computer service shall be held liable on account of…any action taken to enable or make available to information content providers or others the technical means to restrict access to material.”

So far, Section 230 has relieved social media platforms from any responsibility for the information posted on their platforms by users. It allowed the owners of these social media platforms to say that defamatory information posted on their sites could not be attributed to them, but only to the person who created the post.

Imagine, for example, that someone deliberately posts lies about a local business owner on a social media site in order to defame the business owner. But according to Section 230, the business owner could not go after the social media platform where that information appeared; the business owner could only go after the social media user for any damages.

Section 230 also spells out the reasoning of Congress in making this rule, according to the Legal Information Institute. When this legislation was enacted, Congress understood that placing tort liability on social media platforms would not enable the evolution of the internet because there were no technical tools available at the time to deal with this challenge. In essence, Congress opted to give social media platforms a pass on what was said on their sites, unlike print and online publications that can be sued for libel.

Claim: Social Media ‘Aided and Abetted’ Terrorist Activity

Twitter, Inc. v. Taamneh concerns Twitter’s role in regard to a 2016 ISIS-sponsored terrorist attack that occurred at a nightclub in Istanbul, Turkey, that caused the death of a Jordanian man, according to Reuters. The plaintiffs in this case say that Twitter “aided and abetted” terrorist activity by ISIS, resulting in the death of their relative, Nawras Alassaf, and other people.

According to Section 2333 of the Anti-Terrorism Act as amended by the Justice Against Sponsors of Terrorism Act, “U.S. nationals injured by ‘an act of international terrorism’ that is ‘committed, planned, or authorized by’ a designated foreign terrorist organization may sue any person who ‘aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism,’ and recover treble damages.”

The legal argument by Twitter is that the services it offers are generic and widely available. Twitter also says that since they attempt to prevent terrorist organizations from using Twitter, there is no case of aiding and abetting.

Social Media Related Supreme Court Cases Cross Party Lines

From what the Supreme Court Justices have said so far, it is clear that these legal cases cross party lines. Both conservative and liberal justices have questioned how to regulate the liability of social media platforms and the effects of changing Section 230.

The liability of social media platforms and changing Section 230 are issues that should be dealt with sooner rather than later, perhaps by the legislative branch of the U.S. government. In an op-ed published in The Wall Street Journal, President Joseph Biden called for abrogating Section 230; that could be a bipartisan project for the current Congress.

Ilan Fuchs

Dr. Ilan Fuchs is a scholar of international law and legal history. He holds a B.A. in Humanities and Social Science from The Open University of Israel and an M.A. in Jewish history from Bar-Ilan University. Ilan’s other degrees include an LL.B., an LL.M. and a Ph.D. in Law from Bar-Ilan University. He is the author of “Jewish Women’s Torah Study: Orthodox Education and Modernity,” and 18 articles in leading scholarly journals. At the University, Ilan teaches courses on international law while maintaining a law practice in several jurisdictions.

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