Congress, Tech Await Potential Supreme Court Decision on Section 230

The tech industry and state officials were waiting Friday for a potential Supreme Court decision that could prove significant for social media content moderation practices. Various court decisions issued throughout the week raised questions about interpretation of Communications Decency Act Section 230 that some want the Supreme Court to settle.

“Everybody realizes there’s a problem, but we’ve been focusing on 230 and the immunity issue,” Sen. John Cornyn, R-Texas, told us. “We still haven’t come up with a coherent way to deal with it.” If the Supreme Court “can provide us some guidance, I think that would be helpful,” he said, noting Justice Clarence Thomas’ repeated calls for the court to take up a Section 230 case.

NetChoice and the Computer and Communications Industry Association filed an emergency motion with the Supreme Court, challenging the 5th U.S. Circuit Court of Appeals’ lifting of a preliminary injunction against a Texas social media law (see 2205230049). A decision from the high court would have implications for the 11th U.S. Court of Appeals, which ruled last week that Florida can’t restrict content moderation by social media platforms under a similar state law.

Google CEO Sundar Pichai last week drew attention to the 11th U.S. Court of Appeals’ decision in a Section 230 case before the U.S. District Court in Oakland (see 2202230026). Former President Donald Trump sued Facebook, Google, Twitter and their CEOs in July, claiming his suspensions after the Jan. 6 insurrection amounted to illegal censorship. Pichai noted the 11th U.S. Court of Appeals’ finding that the state law’s content moderation provisions are likely unconstitutional because they burden a platform’s right to make editorial judgments on a case-by-case basis. Pichai cited the court’s finding that platforms like YouTube, TikTok and Facebook are private companies with First Amendment rights, and it’s First Amendment-protected activity when a platform removes users or posts, deprioritizes content or sanctions breaches of community standards. Pichai called it a “highly relevant ruling” to the Trump case.

An Ohio judge’s refusal to dismiss a state lawsuit against Google (see 2205260057) fueled conservative arguments that platforms should be treated like common carriers. While not ruling Google is a common carrier, Common Pleas Court in Delaware County Judge James Schuck ruled Tuesday that Ohio “stated a cognizable claim" and declined to dismiss the lawsuit. The American Conservative Union said the decision held Google Search is a “common carrier.” Sen. John Kennedy, R-La., told us he’s all for states settling Section 230 questions, but it’s best for Congress to act. “I’d rather see Congress act” than have the Supreme Court take a case, “but I don’t know if we ever will,” he said.

Other members drew attention to social media’s role in mass shootings around the country. Uvalde, Texas, gunman Salvador Ramos reportedly sent Facebook messages warning of his attack. Andy Stone, a spokesperson for Facebook owner Meta, said the messages were private one-to-one texts. Sen. Dan Sullivan, R-Alaska, referenced social media’s role in mass shootings, saying: “The common theme of almost all of these mass shootings is the social alienation of sick young men, often fueled by social media.”

There is a problem that’s been created by social media that relates to hate speech, Sen. Ben Ray Lujan, D-N.M., told us. While he said he wasn’t up to date on all the specifics about the most recent shooter, social media has had “clear contributions with previous shootings.” He spoke in favor of the Platform Accountability and Consumer Transparency Act, a bill from Sens. Brian Schatz, D-Hawaii, and John Thune, R-S.D., that Lujan co-sponsored. It’s an important piece of legislation the Senate Commerce Committee should be moving, said Lujan. Chair Maria Cantwell, D-Wash., is eyeing a markup in June for tech legislation, though she hasn’t identified specific bills (see 2205250066).