Comment: Big Tech can’t rest easy over its ‘liability shield’

By Stephen L. Carter / Bloomberg Opinion

Did Big Tech just win big at the U.S. Supreme Court? That seems to be the view of most commentators in the wake last week’s unanimous decision in two cases that had the potential to challenge the so-called liability shield that protects internet service providers from liability for content posted by their users.

But I’m not so sure Big Tech won much at all. All the justices really did was kick the can down the road a bit. When the issue comes before them again — and it will, probably soon — there are at least four justices who seem willing to weaken or eliminate the liability shield.

The cases in question involved separate lawsuits, one against Google and one against Twitter, for allegedly abetting terrorist acts via content posted on their sites. In both cases, the defendants claimed that Section 230 of the Communications Decency Act made them immune from suit. The arguments, which I’ve analyzed before, are complex. Suffice it to say that when the cases were argued in February, many observers thought the sky was about to fall. A decision against the ISPs, we were assured, would break the internet.

In Thursday’s unanimous opinions, the justices never addressed the immunity issue. They only ruled that the Twitter plaintiffs hadn’t made out a case for abetting, and the Google plaintiffs probably hadn’t either.

A Big Tech win for now, sure. But next time, the opposite could be true. For all we know, the next case filed in federal court might find a sympathetic judge who decides that Section 230 does not in fact shield ISPs from liability when their content causes harm. Not a single word in the court’s decisions in the Google and Twitter cases would serve as a restraint.

And when it comes up again, the Section 230 liability shield is probably in trouble. Justice Clarence Thomas, the court’s most senior member, is a well-known skeptic of the view that Section 230 renders the ISPs immune from suit. The court’s newest member, Justice Ketanji Brown Jackson, has questioned whether it is “consistent with what Congress intended” to use the provision to protect ISPs from suits when they actually promote (as opposed to merely transmit) troubling content. Other justices, particularly Amy Coney Barrett and Samuel Alito, also seemed to disagree with the broad claims of protection made by the ISPs.

Of course, Congress could act before the issue reaches the Supreme Court again, thus resolving the limits of ISP liability once and for all. After all, Big Tech seems to be hated across the political spectrum these days. During the 2020 campaign, both Donald Trump and Joe Biden called for the provision to be repealed. And congressional action, rather than judicial fiat, would seem the ideal way to settle the argument over what the limits of liability should be. Alas, it’s difficult to imagine that the parties could agree on exactly how to reform it.

One reason, as the legal scholar Jeff Kosseff has pointed out, is that many members of Congress seem not even to understand what Section 230 does – the reason, perhaps, that it is blamed for pretty much anything online that some segment of the public doesn’t like. According to an analysis by Brookings, the last time the provision was amended — a 2018 revision intended to shut down sex-trafficking sites — the effect on the targets was small. The unintended consequences on innocent users were substantial.

The members are not alone in their misunderstanding. Even the best of the news media get this one wrong. Kosseff tells the amusing if troubling story of The New York Times having to correct itself on whether it is Section 230 or the First Amendment that protects objectionable speech on social media, and then correct itself again later on whether it is Section 230 or the First Amendment that enables platforms to remove content not meeting their standards. (Hint: In neither case is the right answer the statute.)

None of this is to say that Section 230 is perfect as it stands, or that amendments would necessarily be bad. That’s a question for another day. Nor am I saying that when the issue arises again, the justices ought to limit the scope of the provision. I’m suggesting only that it’s way too early to say that Big Tech has won the fight. Policymaking is a game for long-termers.

Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”