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What the Supreme Court Says Platforms Do

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2023-09-15 20:30:03

Published by The Lawfare Institute in Cooperation With

Legal questions about internet platforms have, at long last, arrived at the Supreme Court. After taking virtually no cases on the topic since the 1990s, the Court accepted two in the 2022-2023 term: Twitter v. Taamneh and Gonzalez v. Google. It will hear more cases about platforms in the coming term, likely including constitutional challenges to so-called must-carry laws in Texas and Florida, which limit platforms’ ability to remove disinformation, hate speech, and other potentially harmful content. The Biden administration recently urged the Court to accept those cases.

In Taamneh, the Court unanimously held that platforms were not liable under federal anti-terrorism law for harms from ISIS attacks. Because of this decision, the Court ultimately did not rule in Gonzalez, which raised questions about platforms’ immunities under the liability shield known as Section 230. The Taamneh ruling, authored by Justice Clarence Thomas, is this Court’s first detailed utterance on an era-defining topic. Its legal analysis is overall very favorable for platforms, as others have noted.

But the ruling is also oddly emphatic about platforms’ supposed “passivity” toward users and content. That characterization is sure to be raised in future platform cases of all kinds, including by plaintiffs seeking to hold platforms liable for content posted by users. Its most immediate relevance could be in disputes about must-carry laws, which compel platforms to carry user content, including disinformation or hate speech, against their will. In a recent brief defending Texas’s must-carry law, lawyers for the state quote Taamneh eight times. They argue that platforms have no First Amendment interest in maintaining editorial control because, as Taamneh describes them, the platforms don’t really have much of an editorial role in the first place. 

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