These Supreme Courts Cases Threaten the Internet and Section 230
The Supreme Court just heard arguments in Gonzalez v. Google, a case which news outlets across the ideological spectrum agree will determine the future of free speech on the internet. The headlines are not wrong; a decision against Google could devastate the critical speech-enhancing statute that provides websites the protection they need to host user speech. But Gonzalez is only one of a few online speech cases facing the Court this year. The Court may soon grant review of two lawsuits brought by my employer, NetChoice—NetChoice & CCIA v. Moody and NetChoice & CCIA v. Paxton—which concern state-level efforts to control online speech. The cases will determine if 50 separate state governments can each decide what content is available to their residents online. While an anti-speech judgment in any of these three cases will have destructive consequences, the sum of these judgments could be catastrophic for online free speech.
To understand why, we need to begin with some history. From Ravelry and Roblox to Twitter and Truth Social, the diverse fora for expression and commerce on the internet today are the result of two actions the federal government took to protect speech in the mid-1990s.
First, in 1996, Congress passed the Communications Decency Act, which included Section 230. Section 230 ensured that only users, rather than the online services that host them or other users, may be held liable for the content they host online. Without its protection, websites large and small would likely remove users’ constitutionally protected speech to avoid potential lawsuits.
Second, in 1997, the Supreme Court held in Reno v. ACLU that the First Amendment applies with full force to online speech and media. Reno established that the government cannot compel, censor, or otherwise infringe speech the First Amendment protects just because the speech is made on the internet. This includes services’ editorial discretion over what user content to host and how to present it. Until recently, courts and legislatures alike respected Reno‘s principle that it doesn’t make sense to treat offline speech differently than online speech.
Today, Gonzalez asks whether Section 230’s immunity against lawsuits over other users’ speech applies when online services personalize the presentation of that speech to other users. The plaintiffs argue that when platforms suggest content to users, such as in YouTube’s “Up Next” section, those suggestions go beyond the act of hosting and fall outside of the law’s protection. So while a service would remain immunized for merely hosting content under the plaintiffs’ theory of the statute, it could be liable for highlighting it.
But highlighting certain content (and not others) is necessary for any service because of the vast amounts of user-generated content today. If future plaintiffs could evade Section 230 by targeting how websites sort content or by trying to hold users liable for liking or sharing articles, the internet would devolve into an incomprehensible mess and a litigation minefield. Most of the justices appeared spooked by such a possibility during Tuesday’s oral arguments. Their reactions are promising but shouldn’t inspire total confidence.
NetChoice & CCIA v. Paxton and NetChoice & CCIA vs. Moody will determine whether the First Amendment will continue to apply to the internet. The laws at issue in these cases are two state efforts by Texas and Florida to control private services’ editorial discretion over the content they host, discretion which the Supreme Court established the First Amendment protects almost 50 years ago. Though the laws at issue in these cases differ in material ways, both cases ask whether the government has the power to decide what speech appears on popular social media services. (As I’ve previously written, the answer is no.)
The First Amendment and Section 230 are distinct bodies of law, but they work in tandem to advance important policy goals related to free speech. The Court’s decisions in Gonzalez and the subsequent cases could lead to impossible, incompatible consequences. Free speech online will be the collateral damage. There are three outcomes to consider.
First, if the Court decides against Google in Gonzalez, services could conceivably be sued over curating any content that anyone could take offense over. As Justice Elena Kagan explained during oral arguments on Tuesday, “Anytime you have content, you also have these presentational and prioritization choices that can be subject to suit.”
Online services large and small—but especially small—will respond by scrubbing views that may offend to avoid litigation-induced bankruptcy. As Justice Amy Coney Barrett mentioned during oral arguments, a finding for Gonzalez would also mean that users themselves could be sued for retweeting or liking other users’ tweets. In short, a finding for Gonzalez is bad news for free discourse online.
Second, if the Court decides against Google and upholds the laws at issue in the NetChoice cases, things get weird. Both laws in these cases ban online services from engaging in the kind of proactive content removal Gonzalez would require of them to stay afloat. Texas’ law explicitly bans online services from removing content based on the “viewpoint” it expresses.
This means cyberbullying or terrorism recruitment material, which are offensive because of the viewpoint they express, are illegal to remove. Indeed, Texas specifically rejected an amendment to its law that would have allowed platforms to lawfully remove terrorist content. Likewise, Florida’s law forces services to host any content posted by a “registered political candidate,” however tortious. If the Court sides in favor of Gonzalez and against NetChoice, popular online services will become sitting ducks waiting for costly litigation over the content the government forces them to host.
The only way for services to avoid this fate under a ruling against Google and against NetChoice would be to ban all content on topics that might provoke controversial viewpoints. This means no content about social movements, religion, guns, COVID-19, or beauty routines to avoid lawsuits over negligence or product liability.
Third, if the Court sides against Google in Gonzalez but for NetChoice in the NetChoice cases, the First Amendment victory will ring hollow. This is because the modern internet is one of intermediaries; few users operate their own servers or websites. Instead, they rely on social media platforms to host their speech.
If Section 230 no longer ensures early and quick dismissals from courts post-Gonzalez, online services will respond by removing content that could foreseeably give rise to a tort claim, restricting publication access exclusively to uncontroversial and low-risk authors. Fewer voices would be heard online—and those voices would reflect and reinforce majoritarian privileges.
Conversely, if the Court publishes a favorable opinion for Google this summer, it will be tempting to cheer victory. Yet hundreds of federal and state bills continue to try and chip away at First Amendment protections on the internet.
The Supreme Court is not done with online free speech after Gonzalez. If the Court does not uphold the First Amendment in the NetChoice cases, states will rush to control what speech may and may not appear online. This will create a domestic “splinternet,” where the information available to users—on services of all sizes and ideological leanings—will become regionally divided based on which content local politicians prefer.
The stakes for the future of free speech could not be higher.