When the US Supreme Court agreed to hear Gonzalez v. Google, its first case involving Section 230 of the Communications Decency Act, the tech-policy world was laser-focused on its implications. The week before oral arguments, in February last year, the Brookings Institution held a panel touting the case’s “power to reshape the internet.” The New York Times wrote that the case “could have potentially seismic ramifications for the social media platforms that have become conduits of communication, commerce and culture for billions of people.” Google’s general counsel wrote that the “decision could radically alter the way that Americans use the internet.”
Those predictions fell short a few months later when the court released its opinion and completely punted on any interpretation of Section 230, the 1996 law that protects platforms from liability for user content. In a 2019 book, I called this statute “the twenty-six words that created the internet,” because it gave internet companies the flexibility to build their business models around user-generated content. As tech companies gained more power, critics on the left and right increasingly attacked the law, which they see as a get-out-of-jail-free card. But the Supreme Court was reluctant to resolve the heated debate. “We really don’t know about these things,” Justice Elena Kagan said during oral arguments. “You know, these are not like the nine greatest experts on the internet.”
Despite their reluctance to decide lofty cyber issues, there is a good chance that another internet law dispute will come before the justices in the next year. And this time, it will be difficult for them to avoid directly deciding the issue and having a huge impact on how the internet looks for decades to come.
The disputes involve two similar Texas and Florida laws which both restrict platforms from moderating certain speech and require transparency about user content policies. The Texas law, for example, states that large social media platforms “may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person” based on viewpoints or the users’ location. NetChoice, a group representing tech companies, has challenged both laws.
Last year, the US Court of Appeals for the Eleventh Circuit struck down Florida’s moderation restrictions. Judge Kevin Newsom wrote that platforms’ content moderation choices “constitute protected exercises of editorial judgment,” so the law likely violates the First Amendment. But later that year, the US Court of Appeals for the Fifth Circuit upheld the Texas law. “Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” Judge Andrew Oldham wrote.
The Florida and Texas laws are not identical, but it is impossible to reconcile the courts’ opinions. In the Eleventh Circuit, tech companies have a First Amendment right to moderate user content as they see fit. In the Fifth Circuit, they do not. Lawyers refer to this problem—having different legal rules depending on what part of the country you’re in—as a “circuit split.” And a circuit split is particularly problematic for issues involving the internet, which reaches across state borders.
Read the full article here
