The Hubris of Reimagining Section 230

It’s largely agreed that the Supreme Court is now well aware that it would have been wiser not to have granted cert in Gonzalez v. Google, the case conservatives hoped would enable the Court to rule Section 230 of the Communications Decency Act, or as Jeff Kosseff called it, the “26 words that created the internet.”

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.

The expectation now, after oral argument, is that there will be no major shift in interpretation, although fears still fester that the Court might say something stupid in its decision that could have disastrous unintended consequences.

But the surprise of the argument was that a position proffered by Miami lawprof and First Amendment hater Mary Anne Franks seemed to catch at least one justice’s attention.

Franks says Section 230 was “intended to be a good Samaritan statute first and foremost,” meaning it was intended to allow online platforms to moderate content without fear of increasing their risk of liability. That is, it was meant to give them the leeway to build a better internet without being punished for their good deeds, as the early internet provider Prodigy was in the infamous Stratton Oakmont case that helped motivate Congress to pass Section 230. Franks said she thought that Justice Ketanji Brown Jackson in particular “really brought that point home.”

And there is little question but that Section 230 was enacted in response to the Stratton Oakmont v. Prodigy decision, although only a simpleton would think that somehow means there was no purpose to address both the problem reflected in Stratton Oakmont as well as the myriad other problems that were obviously going to arise in analogous situations. And few people are as firm and clear-eyed in their simplicity as Franks.

For years, Franks had argued that Section 230 could be fixed, and the internet improved, if courts simply took the correct interpretation of its intent. At some point, she said, it became clear that wasn’t happening, and she began proposing congressional changes to the statute, such as removing 230 protections when a platform shows “deliberate indifference” to unlawful material. But now, with the Supreme Court taking up the question, Franks said she has renewed hope that 230 could be reinterpreted in a way that properly narrows the liability shield for platforms without removing it altogether.

What is the desired outcome? The argument is that Section 230 is merely a good sam statute, protecting the removal of bad speech as an incentive to trash comments that folks like Franks find reprehensible, but does not confer immunity for failing to remove Franks’ reprehensible speech, all will be well in the etherworld. Should a website fail to be that good Samaritan as defined by self-annointed scolds like Franks, Section 230 should not preclude liability for the harm it causes.

Still unclear? The position is that Section 230 immunizes removal of bad speech but not liability for failure to remove bad speech, for which the website would be liable even though it was speech posted by a third party. Websites would have an affirmative duty to remove the bad speech of others or be liable in suit for not removing it.

Sounds nuts? Sounds unprincipled, not just because it begs the question of who decides what speech is good or bad, but because it incentives suppression of speech lest one suffer civil liability for it. Sounds undoable, as the cost of wrongly allowing third party speech to post could prove financially devastating to most (not Google, perhaps, but SJ certaintly) websites, such that it would be the death of such staples as blog comments, not to mention Yelp or TripAdvisor, or any website where one might find a comment critical of a business who, together with its cohorts, could then sue the site into oblivion.

Who would find such a ridiculous, destructive and anti-free speech argument persuasive?

Yet that plain text did not stop Justice Jackson from raising a drastically different reading of Section 230. “Isn’t it true that the statute [Section 230] had a more narrow scope of immunity than…what YouTube is arguing here today,” Jackson said to Google’s lawyer, Lisa Blatt, “and that it really was just about making sure that your platform and other platforms weren’t disincentivized to block and screen and remove offensive content? And so to the extent the question today is, well, can we be sued for making recommendations, that’s just not something the statute was directed to.”

In other words, under the reading of Section 230 that Jackson was asking about, YouTube might not receive any Section 230 protections from being sued over its algorithmic recommendations to users. What’s more, under that same reading, the same would likely also be the case for a bedrock internet function like Google search, which also algorithmically recommends third-party content to users. If the Section 230 interpretation that Jackson sketched out was ever endorsed by a majority of the Supreme Court, it would unleash a torrent of litigation and, in all likelihood, wreck the internet as we know it.

And indeed, while live-blogging the oral argument with a diverse group of prawfs, Justice Ketanji Brown Jackson’s line of argument made Franks swell with pride.

Or as Franks earlier exclaimed, Justice Jackson “gets it,” that the interwebs have become a bastion of bad speech, hate speech, or in Franks’ Cyber Civil Rights view, speech that’s critical of women who say provocative things online but get their feelings hurt when they aren’t applauded for it, or god forbid, are criticized. This makes women feel bad, and causes them to be reluctant to speak their mind lest they be given a less than adoring reaction. Franks’ purpose is to force the internet to silence any criticism of women, or good speech in her view, by holding websites liable for hosting bad speech that doesn’t extol the wonders Franks’ flavor of feminism.

And it looks like there is at least one justice on the Supreme Court who shares Franks’ view.

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