What Policymakers Need to Know About the First Amendment and Section 230

The Supreme Court just heard two cases - Twitter v. Taamneh and Gonzalez v. Google - that could dramatically affect users’ speech rights online. Last week, EFF hosted a panel in Washington D.C. to discuss what legislators need to know about these cases, the history of Section 230 , and the First Amendment’s protections for online speech.

Alongside EFF Senior Staff Attorney Aaron Mackey, the panel included Billy Easley, Senior Public Policy Lead at Reddit, and Emma Llanso , Director of the Free Expression Project at the Center for Democracy and Technology (CDT). Senator Ron Wyden (D-OR), one of the co-authors of Section 230, gave opening remarks. 

Senator Wyden opened the panel with background on the law: it simply establishes the principle that the person who creates and posts content is responsible for that content. Thanks to Section 230 and the First Amendment, websites can take down what they want. Section 230 is essential to smaller companies and startups: “The big guys can take care of themselves,” but the small guys should be able to compete with the big guys, Wyden explained. The law democratizes speech, and elevates the choices of users. Thanks to Section 230, people are able to speak out. 

Wyden then discussed the latest Supreme Court cases. In Gonzalez v. Google , the petitioning plaintiffs made a radical argument about Section 230. They asked the Supreme Court to rule that Section 230 doesn’t protect recommendations we get online, or how certain content gets arranged and displayed. In Twitter v. Taamneh , the U.S. Court of Appeals for the Ninth Circuit ruled that online services can be civilly liable under the Anti-Terrorism Act (ATA) based on claims that the platform had generalized awareness that members of a terrorist organization used its service.

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