More Thoughts about the SCOTUS Twitter and Google Rulings

[I did a media interview about last week’s Twitter v. Taamneh and Gonzalez v. Google rulings. The transcript:]

What got you into the field of internet law? What is most interesting in the field right now?

I have been researching and writing about Internet Law for over 30 years. I got my first email account in 1991 and started talking with people all over the world. I then got into BBSes, USENET, and other online forums. I realized how the Internet enabled important new types of speech–if the law permitted it.

Today, the Internet is in a pitched battle over its existence. It remains to be seen whether government regulators have meaningful First Amendment limits on their ability to regulate user-generated content services. At the moment, regulators around the country are proceeding with ill-conceived and malicious efforts to severely restrict or eliminate our ability to talk with each other online. Will the courts strike down those regulations? If not, the Internet is doomed.

On Thursday, SCOTUS sided with Twitter on a content liability claim, ruling that Twitter was not culpable for the 2017 Istanbul shooting by connecting ISIS-affiliated accounts. What were you expecting?

The Twitter decision was mildly surprising, mostly because the court reached its conclusion unanimously. Based on the oral arguments, the justices seemed to be all over the place, I’m thrilled they found a way to speak in a single voice, instead of their common fracturing that produces multiple opinions per case and makes it hard to figure out what the ruling means.

Who would you consider the biggest winners and losers of the case?

The terrorist attack victims did not get the outcome they wanted. Unfortunately, they sued the wrong defendants, so this was the correct outcome despite their tragedies.

The rulings most benefit everyone who uses the Internet constantly by extending the status quo a little longer.

Tell me about Section 230. What does it do? Why is this non-decision important?

Section 230 says that websites aren’t liable for third-party content. It is the foundation of the modern Internet. The services we use on an hour-by-hour, or even minute-by-minute, basis all gather, organize, and disseminate third-party content. Those services benefit from Section 230’s legal immunity. Any change to their legal foundation has the potential to impact our lives at a very fundamental level.

I am concerned that the Supreme Court will misinterpret Section 230 or cast doubts on its scope. Because the Supreme Court did NOT do that this time, its non-decision delays any judicial carvebacks of Section 230 for a while. This preserves the status quo for now.

How could this affect our everyday media usage? What should we expect down the line?

Although the Supreme Court’s resolution of the Google and Twitter cases didn’t materially change the Internet, the Supreme Court will have many more opportunities to do so in the next few years. The Supreme Court already has several important cases in its queue, including a case about politicians blocking constituents on social media and requests to hear cases over the interpretation of Florida and Texas’ social media censorship laws. Other issues are surely destined for the Supreme Court, including the requirement that websites check the age of all users before allowing them to visit and Montana’s TikTok ban. Each one of those cases gives the Supreme Court the opportunity to change the status quo for the worse, possibly in ways that no legislature could easily fix. This puts extraordinary power over the Internet’s fate in the hands of 9 Supreme Court justices, who themselves have become somewhat polarized. That should make all of us extremely nervous about the Internet’s future.