This week, the Supreme Court decided to take up a pair of cases concerning complex issues regarding the previously broad immunity that has been awarded to media and tech companies under Section 230 of the Communications Decency Act. These are a must-watch going forward, as the statute historically facilitated freedom of speech and innovation on the internet.
The Communications Decency Act of 1996 contains a provision that “[n]o 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.” 47 U.S.C. Section 230(c)(2). While Section 230 contains certain exemptions, it has generally been relied upon by tech and media companies that publish or host third-party speech (e.g., user-generated content) to protect themselves from claims brought by plaintiffs that seek to impose liability for the content and conduct of third-parties.
The two cases for which certiorari was granted this week concern the same Ninth Circuit Court of Appeals ruling, which consolidated several litigations brought against tech companies for terrorist attacks committed in jurisdictions outside of the United States. Industry groups have previously advocated that Section 230’s protections are essential for website publishers and app services to offer user-contributed content and that restrictions on the statute’s historically broad immunity would impede innovation and prove unduly burdensome.
In 2020, Justice Thomas had voiced approval for the Supreme Court’s decision to not hear another matter concerning Section 230 immunity. However, he suggested in an “appropriate case” it would “behoove” the Court to consider this issue. Justice Thomas opined that “[p]aring back the sweeping immunity courts have read into §230 would not necessarily render defendants liable for online misconduct. It simply would give plaintiffs a chance to raise their claims in the first place. Plaintiffs still must prove the merits of their cases, and some claims will undoubtedly fail. Moreover, States and the Federal Government are free to update their liability laws to make them more appropriate for an Internet-driven society.”
Any eventual ruling from the Supreme Court concerning the scope of Section 230 immunity has the potential to be a sea-change going forward. However, a ruling could also be less paradigm-shifting. Section 230 immunity is not absolute. Content co-creators lose their immunity, and courts have long struggled between where the line should be drawn between appropriate editorial control and venue rule enforcement and becoming responsible for the permitted third-party content as a co-creator. These cases will be closely followed by CPW, SCOTUS watchers and advocates on both sides of the Section 230 debate. And, members of Congress regularly consider legislative changes to Section 230, so the Court may not, in the long run, have the last say.