By: Alliya Dulaney
In October 2022, Elon Musk tweeted “the bird is freed” after acquiring Twitter for $44 billion. However, this freedom may soon be constrained by the viability of 47 U.S.C. Section 230 of the Communications Decency Act (CDA). Section 230 currently immunizes technology companies from civil lawsuits against user-generated content using that company’s platform. When a user posts a harmful speech on a specific platform, only the individual user can be sued and the platform itself, for the most part, is free of liability. This February, the Supreme Court will hear arguments for Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh on February 21 and 22 respectively. Both cases challenge the viability of Section 230 as it now stands. Both cases will also implicate how platforms can censor third-party content.
In Gonzalez, the Court will consider whether Section 230 provides immunity to media platforms like Google, YouTube, Facebook, and Twitter, when these companies implement algorithms to suggest information to its users. This case arose from family members of victims of fatal shootings in Paris, Istanbul, and San Bernardino, California by ISIS. Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021). The Petitioners claim that because of Google’s algorithm, its service enabled ISIS to promote its message through YouTube, a company Google acquired in 2006. Thus, under the Anti-Terrorism Act (ATA), Petitioners argue that YouTube aided and abetted an act of international terrorism when it failed to block and suspend ISIS. The Ninth Circuit ruled Google acted as a neutral vessel for third party users to post information where it did not treat ISIS any differently than its other users.
Like the Petitioners in Gonzalez who used the ATA to recover damages, Twitter, Inc. arose from relatives of a victim who were attacked by ISIS in a nightclub shooting in Istanbul. The party sued Twitter, Google, and Facebook for failing to remove ISIS’s posts and thus aided and abetted ISIS by knowingly providing substantial assistance. The Ninth Circuit overruled the district court’s decision and found that Google knowingly provided ISIS with financial assistance when it reviewed and approved ISIS videos for monetization. Gonzalez 2 F.4th at 907. The Supreme Court will consider (1) whether a generic and widely available service regularly works to detect and prevent terrorists from knowingly providing substantial assistance because it can take actions to prevent certain acts and (2) whether such generic and widely used services were not used in connection with a specific act of terrorism that injured the victims of ISIS.
During this time of uncertainty, Twitter and other social media companies may face the possibility of being sued anytime its algorithm produces problematic content. This fear may heighten platforms to remove more content that may risk the company to be sued. Moreover, states like Florida and Texas have implemented bills that restrict platforms to moderate content. In Florida, Senate Bill 7072 limits what social media platforms can restrict, such as fact-checking political candidates or facing fines up to $250,000 per day. Likewise, Texas enacted H.B. 20 to stop “social media companies that try to silence conservative viewpoints and ideas.” While it is difficult to discern the true intent of why these state bills were enacted, concerns regarding a politically motivated agenda usurping free speech through user-generated content is high. It is possible that when a tech companies’ protections in being a neutral vessel for third-party users become narrower, so will the content on these platforms. As the tech companies face the Supreme Court, the future of free speech rests on a scale of various factors including safety, power, and thought. These factors run the risk of political attack when accountability may squarely counter a terrorism measure.
Alliya graduated from Northern Arizona University with a B.S. in Journalism and a minor in Mandarin. She is a 2L at Arizona State University’s Sandra Day O’Connor College of Law. Alliya is interested in government and public policy and international human rights. When not in law school, Alliya enjoys trying new recipes and gardening.