Online speech cases fizzle at Supreme Court, but threats to journalists remain

Caitlin Vogus Headshot

Deputy Director of Advocacy

United States Supreme Court

David, via Flickr, CC BY 2.0

Journalists concerned that two highly anticipated Supreme Court rulings might cause online platforms to censor news content can breathe a temporary sigh of relief. In Gonzalez v. Google and Twitter v. Taamneh, the court sided with social media companies in a legal battle about online terrorist content and declined to reinterpret Section 230, the federal law that shields online services from legal liability for posts made by their users.

Section 230 is sometimes portrayed as a boon for tech giants, but in reality, it’s an important free expression protection for countless websites, including pretty much all news outlets, as well as internet users, including journalists. While the decisions are a good outcome for journalists, other cases pending before the court, as well as several bills in Congress, continue to threaten online speech.

Both Gonzalez and Taamneh were about whether online platforms can be held liable under the Anti-Terrorism Act for aiding and abetting terrorist acts carried out by ISIS. The plaintiffs’ basic theory was that Twitter, Facebook, and YouTube should be liable because they allow ISIS to use their services, recommend ISIS content to other users, and fail to take enough steps to remove ISIS content. Thankfully, the court ruled on both cases while sidestepping Section 230 entirely.

What does this mean for the press? First, the court’s decision not to touch the current interpretation of Section 230 (at least for now) is good for journalists and news organizations. Section 230 fosters free expression by shielding online services from liability for the things their users say. For journalists, in particular, the law protects their ability to use the internet to publish news reports and seek out newsworthy information. Without Section 230, online services could be held liable for the things their users say, and they wouldn’t risk hosting controversial content or content that could potentially get them sued. As a result, platforms would over-remove users’ content, including content by journalists.

A platform might remove news reports about powerful or wealthy (and litigious) figures, for example, for fear of being sued themselves and drawn into lengthy and expensive litigation. The over-removal of content would also make it harder for journalists to find information online. For instance, the #MeToo movement, and all of the investigative reporting it spurred, may never have gotten off the ground if Twitter removed user’s posts because it was worried about its own potential liability for defamation. Section 230 also protects journalists and news outlets directly when, for example, they retweet someone or operate a comments section on their website.

Second, the court also decided in Taamneh that the plaintiffs’ claims weren’t enough to create liability under the Anti-Terrorism Act. That’s good news for news outlets who cover terrorists and terrorism. During the oral argument, Justice Brett Kavanaugh asked whether CNN’s 1997 interview with Osama bin Laden that al-Qaeda used as “tool for recruiting” would have made CNN liable for aiding and abetting the Sept. 11 attacks under the plaintiffs’ theory. As wild as it is to think that a news interview could be considered aiding and abetting terrorists, the plaintiffs’ attorney had a hard time answering that question, ultimately saying that “the First Amendment is going to solve that.”

The court’s decision in Taamneh seems to put to rest any question about aiding and abetting liability for news reporting about terrorism, because the court said a defendant can be held liable for aiding and abetting under the ATA only if it “consciously and culpably” participates in a wrongful act in order to help “make it succeed.”

The court’s decisions leave in place the current interpretations of the law that largely protect online speech, including by reporters. But the threat to Section 230 and online speech by reporters and others isn’t over. Some justices have written that Section 230 should be significantly limited, Congress has proposed numerous bills to repeal or limit Section 230, and the Biden administration has also been critical of the law. In addition, the court is likely to take up two other cases in the next term, NetChoice v. Paxton and Moody v. NetChoice, in which it could reinterpret Section 230 and First Amendment protections for online speech more broadly, with potentially significant ramifications for the press.

As they consider changes to or interpretations of the law, both Congress and the Supreme Court must prioritize the rights of journalists and other users to speak and find information online. Gonzalez and Taamneh may be behind us, but journalists, news outlets, and free speech advocates are in for a long road ahead to protect free expression online.

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