Section 230

Google Supreme Court Case Tests Whether Tech Firms Are Liable for User Content

Section 230 helped the internet flourish. Now its scope is under scrutiny.

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topicslaw | Illustration: Joanna Andreasson
(Illustration: Joanna Andreasson)

Section 230 of the 1996 Communications Decency Act says "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." Often called the law that made the internet as we know it possible, Section 230 generally shields online platforms, such as social media sites, from civil liability for content posted by users.

The U.S. Supreme Court directly addressed that provision's scope for the first time in February, when it heard oral arguments in Gonzalez v. Google. The case asks whether Section 230 immunizes Google, the owner of YouTube, from lawsuits alleging that the video platform's algorithms aided terrorists by recommending Islamic State videos to users. The justices are reviewing a 2021 ruling in Google's favor by the U.S. Court of Appeals for the 9th Circuit.

Both Republicans and Democrats have taken aim at Section 230 in recent years, claiming the provision unfairly advantages Big Tech. Those politicians see the legal dispute as a vehicle for achieving their policy objectives.

"Far from making the internet safer for children," declared a friend-of-the-court brief filed by Sen. Josh Hawley (R–Mo.), "Section 230 now allows platforms to escape any real accountability for their decision-making." Hawley is just one of many conservatives urging the Court to strip Google of its Section 230 protections in this case.

The trouble for Hawley and like-minded critics is that Google has solid legal arguments on its side. "Recommending content to users is classic publisher behavior," Corbin Barthold, internet policy counsel for TechFreedom, noted in an essay last fall for Reason's website. "It's what a newspaper does when it puts a story on page A1 instead of page D6. To hold a platform liable for how it presents user-generated content is to treat it as a publisher—exactly what Section 230 forbids."

Barthold added: "If ISIS had not uploaded videos to YouTube, YouTube would have had no terrorist content to serve up. This is a tell that the plaintiffs' suit is really about the user-generated content and is a loser under Section 230."

The law seems to be on Google's side. We'll find out later this term if a majority of the Supreme Court is on the law's side.