". . . and having done all . . . stand firm." Eph. 6:13


Supreme Court Weighing Extent of Protections for Online Speech

February 27, 2023

Two cases before the U.S. Supreme Court are challenging how far Section 230 goes in protecting websites when they contain dangerous or defamatory content. “At stake in both cases is the liability protections tech providers have for content that they host and distribute,” explained Tony Perkins on “Washington Watch.”

While most users of the internet have never heard of it, Section 230 of the Communications Decency Act could be thought of as the glue that holds the internet together. The law, signed by President Bill Clinton and that has since been found unconstitutional in part, has a 26-word section that survived the rest of the act’s demise. It holds that internet platforms cannot be held liable for what third parties do or say on their platforms.

Section 230 reads: “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.”

Adopted in 1996, the Communications Decency Act (CDA) inferred there were limits to the constitutional guarantees of free speech. The act prohibited the transmission of any “obscene or indecent” messages or the display of “patently offensive” materials to a minor. The Supreme Court ruled in 1997 that the CDA placed an “unacceptably heavy burden on protected speech.”

Unlike newspapers, magazines, and even television broadcasts that can be sued for defaming someone, Section 230 protects websites because it does not regard them as publishers or speakers, but as a neutral platform where thoughts and ideas are shared.

Ken Klukowski, an attorney who served in the Trump administration, told Perkins on “Washington Watch” that during the oral arguments, “A number of the justices seemed to really struggle with where exactly you draw that line.”

Klukowski said there were two viewpoints being presented in the cases: One argument focused on a website that has troublesome content in place but that does not have “mechanisms in place to screen it, to block it, or to take it down.” He said those asserting this position suggest the site would be liable under Section 230.

“But then the other argument that was presented seemed to be, no, we’re not saying you need to take it down. We’re just saying you can’t be promoting it. You can’t be endorsing it,” Klukowski explained, noting there appeared to be a real question on the part of the justices as to “what yard line the football was on.”

Many of the questions that were asked seemed to be poking holes at the wording of Section 230, said Klukowski, former senior counsel in the Civil Rights division of the U.S. Department of Justice and former special counsel in the White House Office of Management and Budget.

Much of the discussion in the hearing on Gonzalez v. Google LLC centered on whether or not a website, like YouTube, is actually publishing content, which puts them at risk under Section 230, or if they are just a neutral platform offering users access to third-party content.

“I don’t understand how a neutral suggestion about something that you’ve expressed an interest in is aiding and abetting [under Section 230]. I just don’t — I don’t understand it,” said Justice Clarence Thomas, questioning the petitioner’s counsel. “And I’m trying to get you to explain to us how something that is standard on YouTube for virtually anything that you have an interest in suddenly amounts to aiding and abetting because you’re in the ISIS category.”

The case was filed by the family of a 23-year-old American woman who was killed in an ISIS attack in Paris where she was a student. The suit alleges YouTube and its parent company, Google, aided and abetted terrorism because of its algorithms that recommend videos based on a user’s prior searches.

During the hearings, Justice Sonia Sotomayor said she could imagine that no content gets protection. “Every other industry has to internalize the costs of its conduct. Why is it that the tech industry gets a pass? A little bit unclear,” she said, continuing, “On the other hand, I mean, we’re a court. We really don’t know about these things.”

“You know, these are not like the nine greatest experts on the internet,” Sotomayor quipped of the justices, to a chorus of laughter in the courtroom.

Klukowski noted that while the cases before the court have no connection to assertions that some social media sites have been cozy with the government and are blocking conservative viewpoints, there is litigation in that area.

“The inference was there for a lot of people that it’s a matter of saying that the gatekeepers here are not neutral. They have their own agenda,” he pointed out. “One case ongoing right now is making the point to say that if a social media platform is working in conjunction with the government, taking its marching orders from the government, promoting the message the government says they want promoted, and silencing dissenting voices … the government is doing so with the shield of this Section 230.”

“There are arguments out there in court to say that private corporations have now become just an extension of the government, almost like a contractor, and as such should be subject then to the First Amendment in terms of not being able to discriminate against viewpoints the government doesn’t like,” Klukowski concluded.

K.D. Hastings and his family live in the beautiful hills of Middle Tennessee. He has been engaged in the evangelical world as a communicator since 1994.