Big Tech to Face Reckoning at Supreme Court over Terrorist Content

The Nine, whose new term begins today, will review two decisions on whether social media companies can be held to account financially for terrorist content.

Dana Verkouteren via AP
The Supreme Court, joined by new Justice Ketanji Brown Jackson, hears arguments on the opening day of its new term. Dana Verkouteren via AP

The Supreme Court’s decision that it will hear a battle over the broad protection afforded to Big Tech by Section 230 signals that the era of immunity enjoyed by social media companies thus far could soon be ending.

The high court, whose new term begins today, will review two decisions on whether the companies can be financially held to account for terrorist content circulating on their sites and servers. Both cases have been brought by families of persons murdered in terrorist attacks. 

The first, an American student named Nohemi Gonzalez, was slain in 2015 in an Islamic State onslaught at Paris. His family sued Google, arguing that YouTube — a jewel in the search giant’s crown — not only hosted extremist content, but recommended extremist content to users.

Gonzalez was 23 years old, a student, and was one of 130 victims killed in the series of linked attacks that rocked the City of Light. Ninety lost their lives at the Bataclan theater. They hope to marshal the Anti-Terrorism Act’s prohibition of policies that “aid and abet” terrorist acts to hold YouTube to account.    

This content included “hundreds of radicalizing videos inciting violence and recruiting potential supporters.” The trial judge dismissed the case, but it was revived by judges riding the Ninth Circuit of the United States Court of Appeals, which was receptive to the argument that Big Tech’s immunity does not apply to targeted recommendations. 

The second case, Twitter v. Taamneh, centers on the murder of a Jordanian citizen, Nawras Alassaf, in an Islamic State affiliated attack at Istanbul in 2017. Alassaf’s parents sued Twitter, Google, and Facebook, arguing that the giants have allowed terrorist content to proliferate.

Alassaf’s family also argues that this content violates the Anti-Terrorism Act, and likewise found succor from the riders of the Ninth Circuit. The case reaches the Supreme Court via an appeal from Twitter.           

The platforms’ biggest advantage is Section 230(c)(1) of the Communications Decency Act, which reads “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 

That provision, which rules that online companies and websites, unlike other publications, are not responsible for the content that appears on their servers, has effectively allowed those companies to disclaim responsibility for what users see, even as they have become preeminent sources of news for the world’s population. 

Many see the immunities of Section 230 as the protective umbrella under which the internet has been allowed to bloom, largely free of government interference. The law was enacted in 1996, when the web was a guppy rather than a Leviathan.

The protections of Section 230 are not quite absolute. In 2018, President Trump signed into law the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA). FOSTA-SESTA carves out an exception to Section 230 to hold websites responsible for third party postings that advertise prostitution.

At least one member of the court has expressed an interest in cutting the immunities of Section 230 further down to size. In 2020 Justice Clarence Thomas speculated that “Extending §230 immunity beyond the natural reading of the text can have serious consequences.”

That same year, Attorney General William “Bill” Barr issued a proposal from the Department of Justice suggesting that “for too long Section 230 has provided a shield for online platforms to operate with impunity.”

Democrats too have been skeptical of the free pass offered by Section 230. Politico reports that at a closed door White House session this month, President Biden expressed his support for repealing the liability shield afforded by the statute. 

On the 2020 campaign trail, Mr. Biden urged that those protections be revoked “immediately” and lambasted Meta chief executive Mark Zuckerberg for “propagating falsehoods they know to be false.”   

This is a busy courtroom season for Big Tech. The riders of the Fifth Circuit of the United States Court of Appeals overturned a lower court and upheld a Texas law banning the platforms from moderating political content. The riders held that the law “does not chill speech; if anything, it chills censorship.” 

That case too, could soon find itself before the Supreme Court.

The New York Sun

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