Section 230 stays in place – for now

The United States Supreme Court yesterday handed down two decisions that preserve the Section 230 immunity of platforms from liability over what platform accountholders post.

The Section 230 cases

In Twitter v. Taamneh (598 US ____, 2023), the Court held that merely carrying content even from a bad actor does not equate to “aiding and abetting” the bad acts. The Justice Against Sponsors of Terrorism Act of 2016 (JASTA) adds Section 2333(d)(2) to Title 18, U.S. Code. That section provides for secondary liability against anyone who aids and abets a terrorist in his act. Such “aiding and abetting” must consist of:

• “Knowingly providing substantial assistance,” or
• Active conspiracy with the terrorist actor(s).

The case came from the family of a victim of the mass murder of 38 nightclubbers in Istanbul iln 2017. The family sued Facebook, Twitter and Google and accused them of “aiding and abetting” per 18 U.S.C. Section 2333(d)(2). A District Court threw the case out, citing failure to state an actionable claim. But the Ninth Circuit Court of Appeals reversed that.

Yesterday the Supreme Court – unanimously – re-reversed and affirmed the original District Court finding. Justice Clarence Thomas wrote the opinion, in which all other Justices joined; Justice Ketanji Brown Jackson filed a concurrence.

Justice Thomas essentially held that social media have no duty to chase down and remove every post that could possibly figure in making a terrorist act easier to commit. More to the point, people use social media as they once used mail, telephony, or meetings in public places. And we don’t prosecute, or sue, the telephone company because criminals use telephones to communicate and coordinate.

Traditional immunity

Section 230 of the Communications Decency Act gives all communications providers immunity from prosecution or other legal action over content. Content originates with accountholders. The Twitter v. Taamneh case covers terrorist communications, not pornography (the original bad content). But the principle is the same. Passive parties are not liable for other people’s bad acts.

This finding actually undercuts the pleas that platform operators sometimes make that their inaction lets bad things happen. (See, for instance, The Twitter Files.) So this case is likely to strengthen the case of the plaintiffs in, for example, Missouri v. Biden.

Justice Jackson wrote a two-paragraph concurrence saying this case (and the case of Conzalez v. Google) had “no factual record” and that the conclusions Thomas drew might not be universally applicable to other cases.

The Court disposed of the Gonzalez v. Google case with a Grant, Vacate and Remand order. This case differs from Twitter in that the Ninth Circuit said that Section 230 barred most of Gonzalez’ complaints.

We therefore decline to address the application of §230 to a complaint that appears to state little, if any, plausible claim for relief. Instead, we vacate the judgment below and remand the case for the Ninth Circuit to consider plaintiffs’ complaint in light of our decision in Twitter.

Thus the Court didn’t touch Section 230 at all, and the case has landed back in the Ninth Circuit.