The US Supreme Court has agreed to hear appeals in two cases regarding an online platforms liability for messages posted by users.
One case, Gonzalez v. Google involves a 23-year-old US Citizen killed in Paris in terrorist attacks in November 2015. Relatives of the victim accused YouTube of passing along content that encouraged the attacks and sharing revenue with them.
The ninth circuit court of appeals upheld a dismissal of that case. They found most of the claims were protected by Section 230 and ruled that the plaintiffs couldn't prove the revenue connection.
The second case, Twitter v. Taamneh involves a Jordanian citizen killed in a 2017 terrorist attack in Istanbul. Relatives accuse Twitter, Google and Facebook of aiding and abetting terrorists in violation of the Anti-Terrorist act. That case t did not touch on Section 230 issues. It did have more evidence of revenue sharing like AdSense accounts and such. So the Ninth Circuit let that case proceed.
The 9th circuit decided these cases together (along with a third similar case that is not being appealed. So it's notable that the Supreme Court took both of them. While Section 230 was deemed sufficient in one and not relevant in the other, several of the circuit judges criticized Section 230 in their opinions.
And given that the Supreme Court justices have previously written about their concerns with Section 230, it seems reasonable to expect that the Supreme Court will review the Section 230 element of these cases.
So what is Section 230?
I have a whole episode of Know A Little More if you want all the details, but here's the short version.
Since 1959, in a case called Smith v. California, the standard had been Publisher v. Distributor. Bookstore owners were not expected to know what was in every book. But publishers were. So if you were a publisher of something you were liable for what you published but if you were a distributor, you weren't liable for what was in the book.
But when the 1990s rolled around, CompuServ and Prodgy provided an interesting new twist on the question. Were they publishers of user comments or distributors? CompuServ didn't moderate content, so was deemed by the court to be a distributor and immune. Prodigy did employ moderators, so the court ruled that, since Prodigy chose what stayed up and what didn't, it was a publisher and therefore liable.
Congress recognized that this encouraged platforms not to moderate their content, leaving them full of libelous and dangerous postings. So they included Section 230 of the CDA, which says that "No 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."
In other words, if you try to make your forum a decent place to post we won't punish you for it.
In a test of the law in 1997's Zeran v. AOL, AOL was accused of failing to remove posts that tied Zeran's phone number to the Oklahoma City bombings. The fourth circuit wrote in that case that "It would be impossible for service providers to screen each of their millions of postings for possible problems." And doing so would restrict speech, which was the reverse of the intention of Section 230.
There are exemptions from Section 230. Platforms are not immune from federal criminal liability, intellectual property claims or facilitating sex trafficking.
Now back to the cases coming before the Supreme Court this term. In a concurrence, Circuit Judge Marsha Berzon noted that "if not bound by Circuit precedent I would hold that the term “publisher” under section 230 reaches only traditional activities of publication and distribution—such as deciding whether to publish, withdraw, or alter content—and does not include activities that promote or recommend content or connect content users to each other."
In other words, leave moderation protected but establish that recommendation is not.
The Supreme Court hearings will take place this term and decision will come sometime before the court recesses next June.