The Internet Dodges Censorship by the Supreme Court

The Supreme Court today refused to weaken one of the key laws supporting free expression online, and recognized that digital platforms are not usually liable for their users’ illegal acts, ensuring that everyone can continue to use those services to speak and organize.

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.

In Taamneh, the Supreme Court rejected a legal theory that would have made online services liable under the federal Justice Against Sponsors of Terrorism Act on the theory that members of terrorist organizations or their supporters simply used these services like we all do: to create and share content. The decision is another win for users’ online speech, as it avoids an outcome where providers censor far more content than they do already, or even prohibit certain topics or users entirely when they could later be held liable for aiding or abetting their user’s wrongful acts.

Given the potential for both decisions to have disastrous consequences for users’ free expression, EFF is pleased that the Supreme Court left existing legal protections for online speech legal in place.

But we cannot rest easy. There are pressing threats to users’ online speech as Congress considers legislation to weaken Section 230 and otherwise expand intermediary liability. Users must continue to advocate for their ability to have a free and open internet that everyone can use.

Read on for a fuller analysis of the Supreme Court’s decisions.

Supreme Court Sidesteps Effort to Weaken Section 230

The Supreme Court’s Gonzalez decision to avoid interpreting Section 230 is a win for free speech online. Relying on its ruling in Taamneh (discussed below), the Supreme Court ruled that the plaintiffs in Gonzalez had failed to establish that YouTube could be held liable as an aider and abetter under JASTA for hosting content of ISIS members and supporters.

Because the Gonzalez plaintiffs could not hold YouTube liable under JASTA directly, the court ruled that it did not need to decide whether YouTube even needed the protection of Section 230’s civil immunity.

The court’s refusal to interpret Section 230 is a big relief. As EFF wrote in a friend-of-the-court brief [PDF], the interpretation of Section 230 sought by the Gonzalez plaintiffs would have resulted in a much more censored and less user-friendly internet.

If online services could face liability based on simply recommending other users’ content or providing basic but essential tools people use to share their content, such as URLs, it would fundamentally reshape everyone’s ability to speak and share content online. People would have difficulty finding communities and content that they want, and speakers and creators would not be able to find audiences for their content. In short, the Gonzalez plaintiffs’ Section 230 interpretation would have gutted many of the benefits online services provide to their users.

Not to mention that if platforms faced liability for merely hosting content associated with terrorist organizations, they would predictably react by censoring a large volume of protected speech, including news reporting about terrorist acts, counter-speech by others, and any other content that someone could claim later supported terrorism. There’s no doubt that this reaction would have a disproportionate impact on marginalized speakers.

The court’s Gonzalez decision is also a victory in another sense. The Supreme Court’s decision means that the lower court’s decision, by the U.S. Court of Appeals for the Ninth Circuit, no longer has any legal authority. That decision sought to dangerously narrow Section 230’s protections for legal claims under the Anti-Terrorism Act, raising the specter of widespread internet censorship. The Ninth Circu