By Aaron Mackey
The Supreme Court today refused to weaken one of the key laws supporting free expression online, and recognized that digital platforms are not usually liable for their users’ illegal acts, ensuring that everyone can continue to use those services to speak and organize.
The decisions in Gonzalez v. Google and Twitter v. Taamneh are great news for a free and vibrant internet, which inevitably depends on services that host our speech. The court in Gonzalez declined to address the scope of 47 U.S.C. § 230 (“Section 230”), which generally protects users and online services from lawsuits based on content created by others. Section 230 is an essential part of the legal architecture that enables everyone to connect, share ideas, and advocate for change without needing immense resources or technical expertise. By avoiding addressing Section 230, the Supreme Court avoided weakening it.
In Taamneh, the Supreme Court rejected a legal theory that would have made online services liable under the federal Justice Against Sponsors of Terrorism Act on the theory that members of terrorist organizations or their supporters simply used these services like we all do: to create and share content. The decision is another win for users’ online speech, as it avoids an outcome where providers censor far more content than they do already, or even prohibit certain topics or users entirely when they could later be held liable for aiding or abetting their user’s wrongful acts.
Given the potential for both decisions to have disastrous consequences for users’ free expression, EFF is pleased that the Supreme Court left existing legal protections for online speech legal in place.
But we cannot rest easy. There are pressing threats to users’ online speech as Congress considers legislation to weaken Section 230 and otherwise expand intermediary liability. Users must continue to advocate for their ability to have a free and open internet that everyone can use.
Read on for a fuller analysis of the Supreme Court’s decisions.
Supreme Court Sidesteps Effort to Weaken Section 230
The Supreme Court’s Gonzalez decision to avoid interpreting Section 230 is a win for free speech online. Relying on its ruling in Taamneh (discussed below), the Supreme Court ruled that the plaintiffs in Gonzalez had failed to establish that YouTube could be held liable as an aider and abetter under JASTA for hosting content of ISIS members and supporters.
Because the Gonzalez plaintiffs could not hold YouTube liable under JASTA directly, the court ruled that it did not need to decide whether YouTube even needed the protection of Section 230’s civil immunity.
The court’s refusal to interpret Section 230 is a big relief. As EFF wrote in a friend-of-the-court brief [PDF], the interpretation of Section 230 sought by the Gonzalez plaintiffs would have resulted in a much more censored and less user-friendly internet.
If online services could face liability based on simply recommending other users’ content or providing basic but essential tools people use to share their content, such as URLs, it would fundamentally reshape everyone’s ability to speak and share content online. People would have difficulty finding communities and content that they want, and speakers and creators would not be able to find audiences for their content. In short, the Gonzalez plaintiffs’ Section 230 interpretation would have gutted many of the benefits online services provide to their users.
Not to mention that if platforms faced liability for merely hosting content associated with terrorist organizations, they would predictably react by censoring a large volume of protected speech, including news reporting about terrorist acts, counter-speech by others, and any other content that someone could claim later supported terrorism. There’s no doubt that this reaction would have a disproportionate impact on marginalized speakers.
The court’s Gonzalez decision is also a victory in another sense. The Supreme Court’s decision means that the lower court’s decision, by the U.S. Court of Appeals for the Ninth Circuit, no longer has any legal authority. That decision sought to dangerously narrow Section 230’s protections for legal claims under the Anti-Terrorism Act, raising the specter of widespread internet censorship. The Ninth Circuit also endorsed the use of automated filters to address concerns about distributing harmful content, a dangerous and naïve view that would have resulted in vastly more automated censorship.
Online Services Are Not Liable for Users’ Illegal Acts
The Supreme Court’s Taamneh decision is also good news to ensure that internet users can speak about and have access to information about controversial topics, including speech about terrorism.
The central question in Taamneh was whether online services could be held liable for aiding and abetting acts of terrorism because they generally provided services that those organizations or their supporters used. There was no allegation in the case that the platforms were specifically used to plan the Reina attack. EFF was concerned that allowing liability based on claims that a service was generally aware that others had used its service would lead to censorship of users’ speech, as platforms would be less willing to host speech on controversial topics. Along with a coalition, we filed a friend-of-the-court brief warning the Supreme Court about that dangerous outcome.
Thankfully, the Supreme Court declined to rule that online services could be liable. Although the court’s opinion rests on historical understandings of the legal concept of aiding and abetting liability, the upshot is that online services are generally not culpable for having a service open to users that some used to engage in illegal acts.
The court recognized that “defendants’ platforms are global in scale and allow hundreds of millions (or billions) of people to upload vast quantities of information on a daily basis. Yet, there are no allegations that defendants treated ISIS any differently from anyone else.”
The Supreme Court also dismissed an argument by the plaintiffs that the automated systems platforms use to distribute content to users could be viewed as providing substantial assistance to ISIS to create liability under JASTA. Instead, the court ruled that those recommendation systems are inseparable, essential features of the services’ architecture.
All the content on their platforms is filtered through these algorithms, which allegedly sort the content by information and inputs provided by users and found in the content itself. As presented here, the algorithms appear agnostic as to the nature of the content, matching any content (including ISIS’ content) with any user who is more likely to view that content. The fact that these algorithms matched some ISIS content with some users thus does not convert defendants’ passive assistance into active abetting. Once the platform and sorting-tool algorithms were up and running, defendants at most allegedly stood back and watched; they are not alleged to have taken any further action with respect to ISIS.
That said, the Supreme Court’s ruling does not foreclose any potential liability when services affirmatively aid and abet specific terrorist acts rather than just assist the entity generally—the outcome could have been different in such a case. That could be read by some as an invitation to enact speech-chilling laws that require services to spy on their users or censor their speech.
EFF will continue to fight any efforts to censor the internet. And we will continue to center users’ rights to free expression so that lawmakers and courts know how their decisions will harm everyone’s ability to rely on the internet to speak, organize, and find their communities. Today, however, EFF is relieved that the Supreme Court avoided harming users’ speech.
Aaron litigates free speech, anonymity, privacy, government surveillance and transparency cases. Before joining EFF in 2015, Aaron was in Washington, D.C. where he worked on speech, privacy, and freedom of information issues at the Reporters Committee for Freedom of the Press and the Institute for Public Representation at Georgetown Law. Aaron graduated from Berkeley Law, where he worked for EFF while a student in the Samuelson Law, Technology & Public Policy Clinic. He also holds an LLM from Georgetown Law. Prior to law school, Aaron was a journalist at the Arizona Daily Star in Tucson, Arizona. He received his undergraduate degree in journalism and English from the University of Arizona, where he met his amazing wife, Ashley. They have two children.
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