On May 18, the U.S. Supreme Court issued decisions in two cases related to Section 230 of the Communications Decency Act. The decisions leave Section 230 protections unchanged for now, but they also allow for potential future litigation.
The U.S. Supreme Court (the Court) recently issued decisions in two cases related to Section 230 of the Communications Decency Act (Section 230): Gonzalez v. Google and Twitter v. Taamneh. The question before the Court was whether interactive computer services and their systems are protected under Section 230. The decisions ultimately leave Section 230—and the existing operation of interactive computer services on systems that allow for third-party user content—unchanged.
What Is Section 230?
Section 230 protects online service providers from legal liability stemming from content created by the users of their services by providing two provisions for immunity. The law stipulates that service providers and users may not be "treated as the publisher or speaker of any information provided by another information content provider" and that service providers and users may not be held liable for voluntarily acting in good faith to restrict access to "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable" material.Footnote1
Congress passed Section 230 in 1996. As internet platforms have evolved in the years since Section 230 was passed, the statute has generated substantial debate among policymakers and other stakeholders regarding the appropriate scope of the statute. Some have proposed amending the statute to place certain conditions on immunity or create narrower exceptions that would allow for certain types of lawsuits. Others have advocated for repealing the law entirely.Footnote2
Although the debate around Section 230 is focused mainly on Big Tech, changes to the scope of Section 230—whether via Congress or a ruling from the Court—would hold implications for higher education institutions, given their role in operating networks. The Association of Research Libraries has taken the stance that changes to Section 230 are unnecessary and that modifications to the protections in the law could undermine the ability of institutions to continue providing network access in accordance with their organizational missions.Footnote3
Gonzalez v. Google and Twitter v. Taamneh
The Court agreed to take up Gonzalez v. Google and Twitter v. Taamneh in October 2022. In the Gonzalez case, the family of a victim who was killed in an attack by the terrorist group ISIS in 2015 filed a lawsuit against Google, arguing that Google (which owns YouTube) aided ISIS recruitment by recommending ISIS videos to users through its algorithm. In Twitter v. Taamneh, the Taamneh family filed a lawsuit against Twitter after a family member was killed in a separate ISIS attack, arguing that Twitter "aided and abetted" ISIS by failing to keep the terrorist organization off its platform.
On May 18, the Court issued decisions in both cases that ultimately kept Section 230 unchanged. Supreme Court Justice Clarence Thomas wrote the majority opinion for the unanimous court in the Twitter v. Taamneh case. The ruling blocked the family from moving forward with its lawsuit against Twitter. Thomas' opinion argues that the family had not demonstrated a concrete link between the actions taken by Twitter and the attack that killed the family member in question. Importantly, Thomas wrote that allowing the lawsuit to proceed would imply that all tech companies could be held liable for "aiding and abetting" ISIS attacks.
As a result of the Twitter v. Taamneh ruling, the Court decided to send Gonzalez v. Google back to the Ninth Circuit Court of Appeals for review. Specifically, the Court ruled that the Gonzalez family's complaint against Google's recommendations failed under the decision issued for Twitter v. Taamneh and that the scope of Section 230 did not need to be ruled on at the time the decision was issued.
While Section 230 remains unchanged for now, the rulings do not preclude the possibility of future litigation. As such, EDUCAUSE will keep members apprised of any future litigation or viable policy proposals that could amend Section 230.
- Valerie C. Brannon and Eric N. Holmes, "Section 230: An Overview," Congressional Research Service, April 7, 2021. Jump back to footnote 1 in the text.
- Ibid. Jump back to footnote 2 in the text.
- Katherine Klosek, "Section 230 of the Communications Decency Act: Research Library Perspectives," Association of Research Libraries, June 2021. Jump back to footnote 3 in the text.
Kathryn Branson is a Partner at Ulman Public Policy.
© 2023 Kathryn Branson. The text of this work is licensed under a Creative Commons BY-NC-ND 4.0 International License.