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By Sarah May on
 May 19, 2023

SCOTUS skirts Section 230 controversy in highly anticipated rulings

The United States Supreme Court on Thursday issued decisions in two closely watched cases that had potentially significant implications for tech company content liability, but in the end, the justices disappointed many by sidestepping the key question of whether the scope of Section 230 of the Communications Decency Act should be revisited, as NBC News reports.

Court watchers had been monitoring the relevant pair of cases for months, with many anticipating that the high court could finally weigh in on the extent to which Section 230 should continue to protect decisions by social media platforms and other tech companies regarding the display and organization of content, but that was, in the end, not to be.

In the case of Twitter, Inc. v. Taamneh, the social media company – along with two others – faced a lawsuit from the family of a Jordanian national who was killed in an ISIS attack in Turkey back in 2017.

Attorneys for the family contended that Twitter aided and abetted the terror organization in that its members were able to use the platform, even though the company's terms purported to prohibit such use.

The question of liability in the case turned on an interpretation of the Anti-Terrorism Act, and whether hosting content promoting terrorism could even constitute “aiding and abetting” according to federal civil law.

In the case of Gonzalez v. Google, the tech companies at issue stood accused by the family of Nohemi Gonzalez – a student killed in the 2015 terror attacks in Paris – of bearing at least some responsibility for her death by facilitating the spread of Islamic militant ideology.

According to Section 230, social media platforms are not considered “publishers” of content created by third party content, and therefore enjoy broad liability protections, a proposition many assumed the high court would assess in these cases.

Lawyers in the Gonzalez case contended that though videos themselves are user-created content, the thumbnails used to disseminate and promote the content to users are created jointly by the user and the platform, and therefore Section 230 protections ought not apply.

By virtue of an opinion authored by Justice Clarence Thomas in the Taamneh case, the court avoided the need to address the Section 230 questions on which much has been written in recent months, seemingly leaving that controversy for another day.

Thomas explained that the standard for “aiding and abetting” in criminal conduct is “consciously and culpably” taking part in such acts, and the court determined that the tech firms' activity did not rise to that level.

“If aiding-and-abetting liability were taken too far, then ordinary merchants could become liable for any misuse of their goods and services, no matter how attenuated their relationship with the wrongdoer,” the opinion read.

Thomas continued, “When there is a direct nexus between the defendant's acts and the tort, courts may more easily infer such culpable assistance,” further declaring that in the instant case, “the nexus between defendants and the Reina attack is far removed.”

Given that in the Gonzalez case, the justices held that “the allegations underlying their secondary-liability claims are materially identical to those at issue in Twitter,” they were able to skip the Section 230 controversy altogether.

Though a belief in the need for Section 230 reform has been President Joe Biden and certain Republicans have long agreed, their reasons for doing so are quite different, with the left asserting that more content control is needed and the right lamenting excessive corporate censorship. However, now that the Supreme Court has punted on the issue, it remains to be seen if any legislative action will be forthcoming in the near future.

Written By:
Sarah May

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