How the Supreme Court Saved the Internet from Itself: 'Gonzalez v. Google' and 'Twitter v. Taamneh'

The United States Supreme Court did not destroy the Internet on May 18, 2023. That day, the Court released its opinions in Gonzalez v. Google LLC, 143 S. Ct. 1191 (2023) (per curiam), and Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023). In these companion cases from the Ninth Circuit, family members of ISIS victims sued large tech companies under the Justice Against Sponsors of Terrorism Act (JASTA) for allegedly aiding and abetting foreign terrorists by providing them with platforms "for spreading extremist propaganda, raising funds, and attracting new recruits." Complaint ¶ 12, Taamneh v. Twitter, Inc., No. 3:17-cv-4107 (N.D. Cal. July 20, 2017). Defendants in both cases asserted defenses under 47 U.S.C. § 230(c)(1) (Section 230). Section 230, generally speaking, shields online platforms from liability for otherwise actionable content users post on their sites. After the Supreme Court agreed to hear the cases on Oct. 3, 2022, worry quickly spread that the Court "could break the Internet" by weakening this liability shield. Isaac Chotiner, "Two Supreme Court Cases that Could Break the Internet," New Yorker (Jan. 25, 2023). The Internet is still standing, but the Supreme Court's reasoning in the 583-word Gonzalez opinion remains perplexing. Gonzalez and Taamneh are a story about how the Supreme Court "saved" the Internet from itself, and the Court needed both cases to do so.

Section 230

Section 230 of the Communications Decency Act of 1996 states in relevant part 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." 47 U.S.C. §230(c)(1). This language draws from the common law distinction between content "publishers" and "distributors." Newsstands, magazine racks, and mail carriers all distribute content, but they are not "publishers." They are likely to at some point inadvertently disseminate libelous materials, but "the imposition of liability without adequate proof of fault would unquestionably chill the exercise of distributors' First Amendment rights." Lerman v. Flynt Distrib. Co. 745 F.2d 123, 139 (2d Cir. 1984). To avoid such a chilling effect, "courts have long held that vendors and distributors of defamatory publications are not liable if they neither know nor have reason to know of the defamation." Lerman v. Chuckleberry Publ'g, Inc., 521 F. Supp. 228, 235 (S.D.N.Y. 1981).