These Supreme Court cases could determine the future of social media 'content regimes': report

When Section 230 of the Communications Decency Act of 1996 became law in the United States, the internet was much different from what it is now. Most Americans were still using dial-up, Amazon was only two years old, the smartphone revolution was in the distant future, and major tech giants such as Google, Facebook (now Meta), YouTube and Twitter didn’t exist.

Section 230 has since become what CNBC’s Laurie Feiner describes as a “bedrock of the tech industry.” In essence, Section 230 offers tech platforms immunity from liability for third-party content.

But in a report published on January 30, CNBC’s Laurie Feiner stresses that some U.S. Supreme Court cases could “help determine the bounds of free expression on the internet in ways that could force the hand of” Twitter CEO Elon Musk “and other platform owners who determine what messages get distributed widely.”

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Feiner notes that although tech’s “industry leaders say” say that Section 230 “has allowed online platforms to flourish and innovate,” Democratic and GOP lawmakers “have increasingly pushed to diminish its protections for the multi-billion-dollar companies.”

“Section 230 protection makes it easier for platforms to allow users to post their views without the companies themselves fearing they could be held responsible for those messages,” Feiner explains. “It also gives the platforms peace of mind that they won't be penalized if they want to remove or demote information they deem to be harmful or objectionable in some way.”

The U.S. Supreme Court cases that “threaten to undermine Section 230's force,” according to Feiner, include Gonzales v. Google and Twitter v. Taamneh. Feiner points out that Gonzales was “brought by the family of an American who was killed in a 2015 terrorist attack in Paris” and “seeks to determine whether Section 230 can shield Google from liability under the Anti-Terrorism Act (ATA) for allegedly aiding and abetting ISIS by promoting videos created by the terrorist organization through its recommendation algorithm.”

According to Feiner, Twitter v. Taamneh “doesn't directly involve Section 230” but “deals with the question of whether Twitter should have taken more aggressive moderating action against terrorist content because it moderates posts on its site.”

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Chris Marchese, counsel at NetChoice, sees a possible conflict between how different states want to regulate content posted on social media platforms.

Marchese told CNBC, “I have a feeling though that…. you could probably boil down half the states into a, 'We need to remove more content regime,' and then the other half would more or less go into, 'We need to leave more content up' regime," Marchese said. “Those two regimes really cannot be harmonized. And so, I think that to the extent that it's possible, we could see an internet that does not function the same from state to state.”

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Read CNBC’s full article column at this link.