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The Supreme Court could soon transform the digital publishing industry. Will Congress do anything about it?

October 4, 2022, 5:33 PM UTC
A woman with a phone sits in front of the US Supreme Court
Win McNamee—Getty Images

In 1996, during the infancy of the internet, Congress passed a law that said website operators and other online publishers can’t be held liable for content published on their platforms.

In the subsequent 26 years, as the internet morphed into an uncontrollable monster, Congress hasn’t touched the statute, commonly known as Section 230. Instead, the federal legislature has bickered around the edges of the law, tacitly delegating responsibility for applying this broad law to the judiciary.

Congress’s abdication of responsibility has largely benefited tech companies, allowing some of them to grow into the most valuable corporate properties on earth with minimal federal intervention.

But the tide might finally be turning.

The Supreme Court took another step Monday toward upending the social media, digital publishing, and online advertising industries, agreeing to hear a case that could make tech companies liable for harms caused by algorithm-based recommendations. If the highest American court rules against tech firms, the lucrative digital ad business on which Alphabet, Meta, and several other Silicon Valley giants thrive could be forever changed. 

The case, Gonzalez v. Google, centers on whether Section 230 legal protections apply to content promoted by digital publishers through algorithmic recommendations. The plaintiff, Reynaldo Gonzalez, alleges that Google bears legal responsibility for radicalizing terrorists through the promotion of ISIS videos on its YouTube platform. ISIS militants killed Gonzalez’s 22-year-old daughter, Nohemi, seven years ago in an attack in Paris.

While Section 230 clearly protects digital publishers from liability when users post illegal, derogatory, or obscene material, the law does not explicitly state (and Congress has not clarified) whether that immunity extends to platforms’ recommendation decisions. If it does not, tech companies could face a flood of lawsuits tied to the millions of recommendation choices they make each day—choices that drive billions of dollars in advertising revenue.

A three-judge appellate panel ruled in Google’s favor last year, finding that Section 230 shields digital publishers in the matter at hand. 

However, tech companies have plenty of reason to worry that the decision won’t stand.

While Google prevailed in appellate court, the victory was hardly convincing. A dissenting judge in the case, Ronald Gould, argued that a strict reading of Section 230 “in no way provides immunity for other conduct of Google or YouTube or Facebook or Twitter that goes beyond merely publishing the post.” The two judges in the majority opinion, Morgan Christen and Marsha Berzon, also wrote that they “share the dissent’s concerns” about overbroad interpretations of Section 230.

The uneasiness expressed by the three judges, all of whom were appointed by Democratic presidents, likely will extend to the Supreme Court’s conservative majority.

In its previous term, the newly empowered majority emphasized strict readings of the law, often to the frustration of liberal critics and fans of pragmatism. Most notably, the court found the Constitution provided no explicit legal basis for a national right to abortion (whether the justices should have disregarded precedent set in Roe v. Wade is another matter). In another major decision, the court ruled that the Environmental Protection Agency couldn’t issue sweeping carbon-regulation rules designed to combat climate change because Congress did not clearly give the agency such authority.

The Supreme Court’s detractors howled that the two decisions reflected a Republican-anointed judiciary run amok. But the rulings also contained an implicit message to Congress: Do your job and pass laws.

The same message could soon get reinforced through Gonzalez v. Google. Common sense would dictate that Google should not be held responsible for every potential harm caused by a recommended YouTube video. But in the absence of clear statutes promulgating such protections, tech companies shouldn’t be surprised when they’re on the losing end of billion-dollar judicial decisions.

“It would be preferable if the political branches of government, the legislature or the executive branch, would seriously grapple with the issue of unregulated social media power being used to amplify or to distort views asserted by users, and sometimes even by hostile nations using social media to wage asymmetric warfare or to impair democracy,” Gould wrote in his dissenting opinion. 

“But if Congress continues to sleep at the switch of social media regulation in the face of courts broadening what appears to have been its initial and literal language and expressed intention under Section 230, then it must fall to the federal courts to consider rectifying those errors itself by providing remedies to those who are injured by dangerous and unreasonable conduct.”

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Jacob Carpenter


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From the article:

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The powers that be. Big Tech had a decent showing in Fortune’s annual list of the world’s most powerful women—but it still lags behind other industries at the very top of the ranking. Tech executives snagged 11 of the 50 spots on the list, which debuted Tuesday, yet the women of Silicon Valley were shut out of the top 10. Leading the pack for the tech industry: Alphabet and Google CFO Ruth Porat (No. 12), Microsoft CFO Amy Hood (No. 15), Oracle CEO Safra Catz (No. 19), and YouTube CEO Susan Wojcicki (No. 20). The 25th anniversary of the list marked the first time that Fortune has combined the international and domestic versions of the rankings. To view the full rundown of honorees, click here.

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