Supreme Court To Address Section 230 For First Time

Published date10 October 2022
Subject MatterLitigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, IT and Internet, Trials & Appeals & Compensation, Social Media
Law FirmMorrison & Foerster LLP
AuthorMr J. Alexander Lawrence, Aaron Rubin and Dillon Kraus

On October 3, 2022, the United States Supreme Court granted certiorari in Gonzalez v. Google LLC, No. 21-1333, to address the scope of Section 230 of the Communications Decency Act.1 The Court will consider whether Section 230(c)(1) immunizes website operators and other online service providers when they use algorithms to recommend content to users, specifically terrorism-related videos posted on YouTube by other users of the video-sharing service.

Section 230(c)(1) is famously concise, having been referred to as the "the twenty-six words that created the internet."2 It says simply "No 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."3 Since its passage over 25 years ago, courts across the country have often construed the law to provide broad immunity to online service providers that host user-generated content.4 Section 230 has facilitated the growth of the modern interactive Web, by protecting companies that host user-generated content from potential liability. But the law has come under intense scrutiny in recent years, with both courts and legislatures chipping away at this important safe harbor.

I. Section 230 Immunity

In 1997, when Section 230 was less than a year old, the Fourth Circuit held in Zeran v. America Online that Section 230 provided online service providers with broad immunity from liability arising from content posted by users.5 Writing for the court, Judge Wilkinson looked to the Congressional purpose behind the statute, characterizing Section 230 as a shield for free speech online.6 As dozens of state and federal courts around the country adopted Zeran's holding, this expansive interpretation of Section 230 took hold.

In the following decades, courts expanded these protections even further, holding that the Section 230 safe harbor applies regardless of how the plaintiff characterizes the claim, so long as the claim treats the online service provider as the publisher or speaker of content provided by someone else (typically another user). Courts even held that Section 230 protects users who repost other users' content7 and social media platforms that facilitate communications between users.8 In other cases, however, courts have found exceptions to the Section 230 safe harbor, particularly where an online service provider is more actively involved in developing the content at issue or where the plaintiff's claim alleges activity that goes...

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