When the US Supreme Court considers on Friday whether to take up two cases of central importance to the social media world, it will cement its new role as a key arbiter over the future of online communications.
The cases concern controversial 2021 laws in Florida and Texas that were designed to limit internet companies’ ability to block content or users on their networks — something the states claim would prevent them “censoring” conservatives.
The justices are widely expected to take up the cases, though it is unclear if they will have time to hear them in the current term that ends this summer. That would add a second front in what has already become a historic move by the Supreme Court to weigh in on internet freedoms.
The first will come in late February with oral arguments in two cases that touch on a legal provision widely considered central to the development of the internet. Those cases mark the first time the justices have delved into section 230 of the Communications Decency Act, passed in 1996. The provision gives internet services immunity for content others post on their sites, while also giving them wide latitude to remove content they consider offensive.
According to Big Tech’s critics, change is long overdue. They argue that the companies have used the immunity to unfairly penalise some users, while at the same time escaping responsibility for failing to block harmful content.
But tech companies and their supporters warn that tampering with the broad freedoms contained in section 230 could upset a delicate balance. Depending on where the court comes down, it could turn the internet into either “a sanitised, anodyne, Sesame Street experience” or an uncontrolled mass of unwelcome content, said Matt Schruers, president of the Computer and Communications Industry Association, one of the petitioners urging the court to take up the Texas and Florida cases. “Most internet users want something in between,” he added.
Limiting internet companies’ legal immunity could also have “unintended consequences” that end up blocking the good as well as the bad, said John Villasenor, a senior fellow at the Brookings Institution. He and others pointed to the effects of a new US law in 2018 that limited section 230 immunity when it came to sex trafficking. The change is blamed for prompting a large-scale removal of content from the internet, including of information useful to sex workers at risk of becoming victims of trafficking.
Section 230 has long been a political lightning rod for anti-Big Tech sentiment on both the left and right in Washington, though for very different reasons.
Republicans claim the provision has harmed free speech, while Democrats argue it has led to more disinformation. The impasse has left it to the top court to weigh in — “a bad way of going about policy change”, according to Evelyn Douek, an assistant professor at Stanford University, since the justices decide with “very limited facts and briefing”.
One case before the court, Gonzalez vs Google, could have a particularly far-reaching impact over the way modern internet services operate. It accuses Google’s YouTube division of breaking US anti-terrorist laws by including ISIS videos in algorithmically generated recommendations made to users.
According to the plaintiffs, Google should lose immunity because it selected the content for users rather than acting as a neutral platform. That argument has won support from the US Department of Justice, which filed a brief in the case arguing for some limitations on the immunity internet companies enjoy.
Google and its supporters have warned that a ruling against YouTube would hit all forms of algorithmic recommendation on the internet, undermining the main way that most internet services sort content for their users, including search engines. But the DoJ and others claim the effect could be more limited, since internet search is based on specific user queries.
The second section 230 case, Twitter vs Taamneh, also turns on whether internet companies should have broad immunity from anti-terrorism laws. The court agreed to hear the case in October, shortly before Elon Musk acquired Twitter with a promise to relax content moderation on the network. The court could set that effort back if it rules against Twitter, increasing the potential liability for not blocking illegal content.
While the political faultlines around section 230 on Capitol Hill are clear, legal experts say it is harder to predict where the Supreme Court justices will come down on the issues.
Since achieving a 6-3 majority in 2020, the Republican-appointed justices have appeared willing to rule in favour of issues close to the conservative movement.
Clarence Thomas, one of its most conservative justices, criticised section 230 in his concurrence to a 2021 ruling regarding former US president Donald Trump and Twitter. He has also thrown his weight squarely behind the idea that internet services should be forced to act as neutral conduits for all points of view — the position taken in the Texas and Florida laws.
But legal experts said the highly contentious, untested and nuanced issues around section 230 made the outcome hard to predict.
Christopher Yoo, professor at the University of Pennsylvania Carey Law School said a 5-4 Supreme Court ruling last May blocking the Texas social media law “may well” be a sign that the justices will also approach the section 230 cases with caution, making a broad overhaul less likely.
He added: “Speech issues often cause conservative justices to reach very different conclusions.”