Section 230 Stays Intact, For Now

The Supreme Court decided two cases on May 18, 2023 interpreting Section 230 of the Communications Decency Act, which aims to promote free expression on the Internet while providing protections for online intermediaries. Although an influx of academics, organizers, and everyday individuals hoped that the decisions would modernize the law, for now, not much has changed.

Congress originally enacted Section 230 in 1996 to promote free expression during the early stages of the Internet. The law protected online platforms that hosted users who posted content, shielding platforms from being treated as publishers of third-party materials—a shift from how traditional media sources (e.g., newspapers and magazines) operate.

In recent years, critics have argued that Section 230 is outdated. The Internet has changed since 1996, and increasingly, technology companies appear to be immunized from harmful content posted on their platforms. Against this backdrop, two separate actions were brought before the Supreme Court by family members of American citizens killed during ISIS terrorist attacks: Twitter v. Taamneh and Gonzalez v. Google. Both cases demonstrate how the modern Internet, which contains everything from algorithms to live videos, may not fit into the language of Section 230 at its passing.

Notably, in Taamneh, Nawras Alassaf’s family sued Twitter, Facebook, and Google for aiding and abetting ISIS. Alassaf’s family alleged that the social media platforms “knowingly allowed ISIS and its supporters to use their platforms and ‘recommendation’ algorithms as tools for recruiting, fundraising, and spreading propaganda.” The circumstances in Gonzalez were similar. In that case, Nohemi Gonzalez’s family sued Google, arguing that its subsidiary, YouTube, approved ISIS videos for advertisements and subsequently profited.

Supporters of Section 230 pointed out that the technology companies’ failure to remove ISIS content did not equate to aiding and abetting terrorism efforts. Additionally, although ISIS has historically used social media platforms for recruiting and promotional purposes, plaintiffs in both cases could not prove that videos on Twitter, Facebook, or Google inspired these two particular ISIS attackers.

The Supreme Court agreed. In Taamneh, the Court noted that the allegations in the case did not establish that the social media platforms gave “such knowing and substantial assistance to ISIS” that they helped execute the terrorist attacks. Instead, as online intermediaries, the companies provided a platform for users around the world to post content. The companies’ knowledge that ISIS was using their platforms did not meet the act of aiding and abetting. The Gonzalez decision added little more, with the Court writing that the plaintiffs’ complaint failed to state a claim for aiding and abetting. Therefore, the Court declined to address the implications of Section 230, instead referencing its decision and reasoning in Taamneh.

While Section 230 remains unchanged for at least another term, proponents of updating the law remain optimistic. With the proliferation of online content, another case might soon present itself that encourages lawmakers to revisit the 1996 text.