Supreme Court to Tackle Big Tech this Week

February 20, 2023

The Supreme Court this week is set to hear several cases that could potentially make big tech companies liable for harmful content on their media platforms.

In Gonzalez v Google, to be argued on Tuesday, the Court agreed to reconsider the broad legal immunity afforded to internet companies under the Communications Decency Act. It involves a lawsuit in which the family of an American killed in 2015 in Paris by followers of ISIS claims that the assailants may have been influenced by YouTube recommendations that they say supported terrorism.

The Gonzalez case will test whether social media platforms’ use of algorithms to recommend content to users is protected under Section 230 of the Act. The Court’s ruling could shape the entire online structure going forward, including social media, e-commerce and job portals, all of which use algorithms to promote content.

The next day the Justices will consider Twitter v Taamneh, which weighs a related question about the responsibility of big tech—specifically, Twitter, Google and Facebook—to monitor for social media posts that support terrorism.

The case will decide whether these companies can be held liable under the Justice Against Sponsors of Terrorism Act for allegedly aiding and abetting terrorists by sharing ISIS recruitment content.

Also on Tuesday, the Court takes on Netchoice v Paxton, a case surrounding Republican-backed laws that seek to undercut social media companies’ efforts to curb content they deem objectionable.

Justice Clarence Thomas, a frequent critic of Section 230, has written two dissents urging his fellow Justices to take on Netchoice, reviewing what he sees as lower courts’ overly broad interpretation of the law to favor tech companies.

The GOP-backed laws were passed in 2021 in the states of Texas and Florida, asserting that the social media companies’ actions cross the line into impermissible censorship. Those laws are being challenged before the Court by tech industry groups NetChoice and the Computer & Communications Industry Association. 

The tech groups count among their members Twitter, Meta-owned Facebook, and Alphabet which owns Google and YouTube.

About a month ago, the Court asked the Biden Administration to weigh in on Netchoice. The White House’s response has not been made public so far—although both President Biden and former President Trump have in the past called for removing Section 230’s shield. However, Biden has yet to back any specific proposals.

Thomas might be able to persuade at least two of the four Justices necessary to join him for a majority. Justices Samuel Alito and Neil Gorsuch joined in on a dissent with Thomas last May in NetChoice, arguing in favor of the Texas law, which was put on hold in May. If the Court rules in favor of the law, it would require all social media platforms to host all users’ political viewpoints no matter what the content.

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