The Supreme Court’s Google Case Has Free Speech On The Line

Key Takeaways

• Google is being brought before the Supreme Court in a case that could upend Big Tech’s immunity from its content moderation approach
• There are supporters and critics of Section 320, which stops internet companies from being held responsible for users’ content
• The Court will hear oral readings this week, delivering a judgment in the summer

On Tuesday the US Supreme Court heard oral arguments for the case of Gonzalez v. Google, of which the outcome could fundamentally reshape freedom of speech on the internet.

At the heart of the case is whether Section 230 should be repealed. This small piece of law has protected social media giants from large swathes of scrutiny for their content moderation policies.

As the debate around Big Tech and content moderation heats up, with both sides of the aisle calling for reform, let’s look at the future of free speech on the internet.

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What’s the story behind Gonzalez v. Google?

In November 2015, the terrorist group ISIS opened fire in Paris and killed 130 people. 23-year-old American exchange student Nohemi Gonzalez was one of the victims.

The plaintiffs, Nohemi’s mother Beatriz Gonzalez and step-dad Jose Hernandez, argue Google (as the parent company of YouTube) aided and abetted ISIS by recommending increasingly extreme videos to viewers interested in them, in violation of the Anti-Terrorism Act.

There’s a similar case being heard before the Court the next day with a different scope. Nawras Alassaf was one of the 39 victims killed in an Istanbul nightclub in 2017 after an IS gunman opened fire.

His family are suing Twitter, Google and Facebook for not doing enough to stop the rise of extremism through content moderation. The Supreme Court will consider whether social media companies can be held responsible under the Anti-Terrorism Act.

Is anything else going on?

The two cases come at a time when tech companies face increasing scrutiny from all sides.

Recently the US federal government levied two antitrust cases at Big Tech leviathans, Microsoft and Google. The former was concerning Microsoft’s acquisition of game studio Activision, and the latter concerned Google being forced to divest some of its advertising business. Both cases are ongoing.

Politicians have also upped the ante. President Biden wrote in the Wall Street Journal that the US lags behind its peers in Europe and the UK. The Digital Markets Act and Digital Services Act are enacted in the EU and the UK is passing the Digital Markets, Competition and Consumer Bill.

Big Tech knows tighter regulation is on the way, but continues to fight its corner. The Supreme Court judgments might be the dominos that topple tech companies’ easy ride through the regulatory landscape.

What is Section 230?

In the 1990s, CompuServe and Prodigy were both sued over content in their online forums. The latter was ruled against as it chose to moderate its content; the judge deemed Prodigy “more like a newspaper than a newsstand”.

Thirty years ago when the internet was still a fledgling industry set to change the world, politicians were concerned about the ruling’s outcome. In their eyes, if internet companies didn’t moderate any content then terrible things could happen. This led to Section 230 being enacted.

Many social media companies have relied on this small piece of the Communications Decency Act 1996 since their inception. It determines that companies hosting third-party content, like reviews or nasty comments about someone, can’t be held liable for that content.

In the publishing world, libel laws stop newspapers and magazines from saying whatever they like about a person. But with social media, it’s all fair game thanks to Section 230.

There is bipartisan support for reforming Section 230, though from different perspectives. Republicans have argued it encourages internet censorship, while Democrats say it allows for hate speech and misinformation to proliferate.

Trump was the first to try and tackle the issue in 2020, but the motion was defeated. Two years later, President Biden announced the same intention. “I’m calling on Congress to get rid of special immunity for social media companies and impose much stronger transparency requirements on all of them,” he said.

What are social media companies saying?

Unsurprisingly, Big Tech isn’t happy about the potential dismantling of the law that underpins their ecosystems.

Multiple tech platforms including Meta, Twitter, Reddit and Wikipedia have all argued reforming Section 230 would be a disaster. The new CEO of YouTube, Neal Mohan, warned that “Section 230 underpins a lot of aspects of the open internet”.

Google, who’s at the center of the litigation, said the internet could become a “disorganized mess and a litigation minefield”. In a filing, they urged judges to consider the implications. “This court should not undercut a central building block of the modern internet,” Google’s lawyers said.

Tech companies’ arguments range from warnings that job listings, restaurant recommendations and merchandise are some examples of possible restricted content without Section 230.

On the face of it, the decision looks like a no-brainer. Anything that holds Big Tech more accountable for its content moderation policies should go ahead, right? Unfortunately, it’s not that straightforward.

How could this case impact the internet?

Not everyone is convinced repealing Section 230 and replacing it with modified wording is the best path forward.

If the Gonzalez family were to get a ruling in their favor, it’s possible the litigation floodgates would open for tech companies. They could spend years in a quagmire of legal cases to fight before Congress agrees on a new approach.

If the case succeeds, free speech activists ACLU say platforms could censor lawful content. “Section 230 defines internet culture as we know it,” a spokesperson said. Experts at Stanford’s Cyber Policy Center agreed with the sentiment.

Some within the Supreme Court itself think the repeal is sorely needed. Clarence Thomas, one of the Court’s most conservative judges, wrote in a 2020 paper that losing immunity wouldn’t kill off Big Tech companies.

“Paring back the sweeping immunity courts have read into Section 230 would not necessarily render defendants liable for online misconduct. It simply would give plaintiffs a chance to raise their claims in the first place. Plaintiffs still must prove the merits of their cases, and some claims will undoubtedly fail,” Thomas wrote.

The bottom line

The internet – and internet culture itself – has moved far beyond the original scope of Section 230. The answer likely lies somewhere between repealing the Section altogether and keeping it as is, but it could take years before a compromise is reached.

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