SCOTUS: Gonzalez v. Google and Twitter v. Taamneh - Section 230 - Free Speech online

The Supreme Court next week will hear two cases — Gonzalez v. Google on Tuesday, Feb. 21, and Twitter v. Taamneh on Wednesday, Feb. 22 — that could dramatically affect users’ speech rights online.

Nearly everyone who speaks online relies on Section 230, a 1996 law that promotes free speech online. Because users rely on online intermediaries as vehicles for their speech, they can communicate to large audiences without needing financial resources or technical know-how to distribute their own speech. Section 230 plays a critical role in enabling online by speech by generally ensuring that those intermediaries are not legally responsible for what is said by others.

Section 230’s reach is broad: It protects users as well as small blogs and websites, giants like Twitter and Google, and any other service that provides a forum for others to express themselves online. Courts have repeatedly ruled that Section 230 bars lawsuits against users and services for sharing or hosting content created by others, whether by forwarding email, hosting online reviews, or reposting photos or videos that others find objectionable. Section 230 also protects the curation of online speech, giving intermediaries the legal breathing room to decide what type of user expression they will host and to also take steps to moderate content as they see fit.

But if the plaintiffs in these cases convince the Court to narrow the legal interpretation of Section 230 and increase platforms’ legal exposure for generally knowing harmful material is present on their services, the significant protections that Congress envisioned in enacting this law would be drastically eroded. Many online intermediaries would intensively filter and censor user speech, others may simply not host user content at all, and new online forums may not even get off the ground.
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pmbug said:

Lawyers Live blog the SCOTUS oral arguments (read from the bottom of the page up):

Gonzalez v. Google Live Analysis – Institute for Rebooting Social Media

rebootingsocialmedia.org

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... after going back to look at each Justice's questions separately, I conclude that we do in fact have a pretty good idea how the case will turn out: Gonzalez will lose, and so will Google, whose effort to win a broad victory is likely to be killed – and most enthusiastically by the Court's left-leaning Justices.
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The latest anti-tech legislation in Congress (S.560) would seriously threaten free speech online and creators' ability to monetize content while also subjecting tech companies to a flood of frivolous or unfair lawsuits.

The bill—dubbed the "Safeguarding Against Fraud, Exploitation, Threats, Extremism and Consumer Harms (SAFE TECH) Act"—comes from Democratic Sens. Mark Warner (Va.), Mazie Hirono (Hawaii), Amy Klobuchar (Minn.), Tim Kaine (Va.), and Richard Blumenthal (Conn.). It has a companion in the House sponsored by Reps. Kathy Castor (D–Fla.) and Mike Levin (D–Calif.).
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The first change the SAFE TECH Act would make is to say c(1) doesn't apply when "the provider or user has accepted payment to make the speech available or, in whole or in part, created or funded the creation of the speech."

This would open up a huge range of tech companies to more liability. Blogging platforms like WordPress and newsletter and podcast distributors like Substack would be vulnerable, as would any social media platform that provides a paid tier level (like Twitter Blue).
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The SAFE TECH Act also says that Section 230 c(1) protection wouldn't apply (regardless of whether payment or funding was involved) "to any request for injunctive relief arising from the failure of a provider of an interactive computer service to remove, restrict access to or availability of, or prevent the dissemination of material that is likely to cause irreparable harm."
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It's a vague phrase that could open a floodgate of lawsuits over anything and everything objectionable on social media—perhaps particularly speech that is unflattering to the rich and powerful.
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Even if many lawsuits against tech companies over user speech would not stand up to the First Amendment, the absence of Section 230 protection would make these suits more labor- and resource-intensive to fight—upping the likelihood that platforms may decide to crack down on more speech rather than defend themselves in more lawsuits.

The SAFE TECH Act is a dangerous bill that would have far-reaching consequences for content creators, activists, people exposing police violence, whistleblowers, citizen journalists, and basically anyone who uses the internet. Not to mention how it would burden our courts with questionable lawsuits and make life miserable for tech companies large and small.

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The Supreme Court just heard two cases - Twitter v. Taamneh and Gonzalez v. Google - that could dramatically affect users’ speech rights online. Last week, EFF hosted a panel in Washington D.C. to discuss what legislators need to know about these cases, the history of Section 230, and the First Amendment’s protections for online speech.

Alongside EFF Senior Staff Attorney Aaron Mackey, the panel included Billy Easley, Senior Public Policy Lead at Reddit, and Emma Llanso, Director of the Free Expression Project at the Center for Democracy and Technology (CDT). Senator Ron Wyden (D-OR), one of the co-authors of Section 230, gave opening remarks.
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Last month the Supreme Court heard oral arguments in Gonzalez v. Google, a case about whether Section 230 protects platforms from liability for algorithmically recommended speech. This is the first time the Court has heard a case involving Section 230, and a bad ruling would remake the internet for the worse. Although many had feared that justices would use the opportunity to get at Big Tech, the Court was skeptical of petitioners’ counsel Eric Schnapper’s textual arguments and mindful of algorithms’ almost universal use in sorting information online.
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Supreme Court rules for Google, Twitter in closely watched cases​

Gonzalez v. Google, a much‐watched Supreme Court case about whether Section 230 protects algorithmic curation, ended with a whimper on Thursday. In a three page per curiam opinion, the Court avoided addressing Section 230 at all. Instead, the court decided Gonzalez via Twitter v. Taamneh, a related case about platforms’ underlying liability for hosting terrorist speech under the Anti‐Terrorism Act (ATA).
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Most important is the simple fact that the Court was offered an opportunity to reinterpret or remake Section 230 and declined to act on it. ... By refraining from ruling on Section 230, the Court avoided even inadvertently muddying the waters of settled lower court precedent.

Instead, the Court signaled that even in the face of intractable partisan disagreement, decisions to impose a duty to remove speech rest with legislatures, not the courts. ...

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The decisions in Gonzalez v. Google and Twitter v. Taamneh are great news for a free and vibrant internet, which inevitably depends on services that host our speech. The court in Gonzalez declined to address the scope of 47 U.S.C. § 230 (“Section 230”), which generally protects users and online services from lawsuits based on content created by others. Section 230 is an essential part of the legal architecture that enables everyone to connect, share ideas, and advocate for change without needing immense resources or technical expertise. By avoiding addressing Section 230, the Supreme Court avoided weakening it.
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