You may have heard the term “Section 230” thrown about recently. This section of the federal Communications Decency Act of 1996 has been around for more than 25 years, but it is getting attention right now due to a current case before the United States Supreme Court, Gonzalez v. Google. But what exactly is Section 230, why does it matter to the news media, and how could the current case before the Supreme Court change the landscape?
What is Section 230?
“Section 230” is shorthand for 47 U.S. Code § 230, a federal law that applies in all 50 states and prevents most civil lawsuits against websites, online publications and/or forums based on content that third party users provide. The language of the statute states that “[n]o 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.” This means that in most cases, a website is not responsible for the speech contained in comments and posts left by third parties.
Section 230 has made possible the internet as we know it – for better or for worse. When the law was passed in 1996, Congress saw how quickly the internet was growing and likely knew that website operators would not be able to vet and review the large content of user speech that can flood a website. Examples of protected content include Facebook posts, Instagram photos, TikTok videos, and Yelp reviews. (Can you imagine if TikTok or Meta, which owns Facebook and Instagram, had to review every single comment and photo and video posted on their websites? It would be logistically impossible.) Of most interest to you, a newspaper cannot be sued for comments posted by readers in reaction to a story, even if those comments contain defamatory statements. Currently, a person or corporation who takes issue with content posted on one of these websites can pursue a user but not the website that hosts the comment or photo or video.
Why does Section 230 matter to journalists?
Thanks to its broad protections, Section 230 has been helpful to the work of journalists and news media organizations. The law allows online news websites to host comments and other content forums that engage users and assist in the newsgathering process. Without the protections of Section 230, an online publication might be liable as a speaker for defamatory comments or other content that could give rise to lawsuits. Section 230 also could apply to protect newspapers from liability for syndicated content that is published online.
Section 230 helps news organizations in other ways, too. In protecting various types of speech, including extremist speech, it can allow journalists to engage in more robust and authentic reporting on those groups. Section 230 can also protect news organizations when they use online firsthand accounts to report on breaking news.
Although the news media was perhaps not the only contemplated beneficiary of Section 230, the law certainly allows for vigorous reporting and for meaningful online interaction between journalists and their audience.
What is Google v Gonzalez?
Google v. Gonazlez is a case that has reached the U.S. Supreme Court. (Actually, there are two “Section 230 cases” pending at the Supreme Court right now.) Back in 2015, U.S. citizens were killed in terrorist attacks abroad. Via social media, the foreign terrorist organization known as ISIS claimed responsibility for the murders. The victims’ families filed lawsuits pursuant to the Anti-Terrorism Act (ATA), which allows Americans to recover damages for injuries caused by acts of terrorism. However, instead of suing ISIS, the plaintiffs sued Google, Twitter, and Facebook, claiming these entities were directly and secondarily liable for the murders.
The families argue that when websites like YouTube and Google use an algorithm to suggest targeted content to users, this is exercising editorial control. In fact, lawyers argued that the results of the operation of the algorithm amounts to content that is jointly created in part by the website operator. They say that this puts the websites outside of the bounds of Section 230 protection. In turn, the websites argue that targeted content based on an algorithm is very different from engaging in traditional, editorial functions, and they should still receive the protections of Section 230.
You may have read that some justices have expressed skepticism about the broad scope of Section 230 and the virtually impenetrable shield it has created. And there has been speculation that the Court accepted the Gonzalez case with an eye to trimming back that immunity. The questions during oral argument, however, suggest that the Court might not be prepared to make that particular change in Section 230. Given how much of the functional existence and utility of the Internet depends on algorithms, to find liability for a neutral algorithm could potentially put an end to the Internet as we know it today. In one of the most quoted statements from the oral arguments, Justice Kagan recognized that some of the technical aspects of the case might exceed the Court’s complete understanding. "We're a court," she said. "We really don't know about these things. You know, these are not like the nine greatest experts on the internet."
While the case ostensibly relates to websites that we think of as having a primary function of hosting third party content, there is really no legal difference between a Facebook thread and the comment section of a newspaper’s website for Section 230 purposes. The outcome of the case certainly will have overflow impacts on newspaper websites.
When will the Court decide and what is the likely outcome?
The Court heard oral arguments in Gonzalez over a month ago, on February 21, 2023. However, the Supreme Court doesn’t typically issue its opinions in high profile cases until June or July, so we have a while to wait for an answer. If the Court decides that the social media defendants can be sued, that doesn’t mean that all of the protections of Section 230 disappear. But, it will signal that this Supreme Court is willing to weaken those protections. If the Court decides to do that, the questions will then be – how broad will the decision be and what will count as editorial control? How else will the Court chip away at Section 230’s robust safeguards? We will have to wait and find out this summer.
How have third party website users and Section 230 helped your reporting? Do you think the Court should leave the protections fully in place? Share your thoughts with us at firstname.lastname@example.org!