Supreme Court to take case on big tech censorship and immunity

The question of big tech censorship has always been a tricky one. When social media giants like Facebook and Twitter and YouTube suppress voices that question the political establishment’s mainstream narrative, they obviously behave unethically and unfairly. Nevertheless, aren’t they private companies? Aren’t they free to act as they see fit?

After all, we wouldn't want government imposing itself on our businesses. Say, for example, the government forced a pro-life company to promote Planned Parenthood-sponsored content or Convention of States Action to support anti-Article V viewpoints. We’d no doubt cry foul.

Big tech conglomerates are a little different, however.

Companies such as Facebook bill themselves as open platforms, platforms on which user-generated content can freely be distributed provided it is legal and stays within the platform’s pre-stated guidelines.

Open platforms enjoy legal protections should a user post objectionable or provably false content to their sites. If, for example, a user tweeted defamatory misinformation about Nick Sandman or posted a video slandering him on YouTube, neither Twitter nor YouTube could be held responsible in the same way CNN and The Washington Post were responsible for choosing to post libelous stories about the young boy.

This legal protection comes from Section 230 of the 1996 Communications Decency Act which states that “[n]o 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."

According to the Electronic Frontier Foundation, “[t]his legal and policy framework has allowed for YouTube and Vimeo users to upload their own videos, Amazon and Yelp to offer countless user reviews, craigslist to host classified ads, and Facebook and Twitter to offer social networking to hundreds of millions of Internet users. Given the sheer size of user-generated websites (for example, Facebook alone has more than 1 billion users, and YouTube users upload 100 hours of video every minute), it would be infeasible for online intermediaries to prevent objectionable content from cropping up on their site. Rather than face potential liability for their users' actions, most would likely not host any user content at all or would need to protect themselves by being actively engaged in censoring what we say, what we see, and what we do online.”

Those who have been censored for political purposes, however, would argue that social media, by choosing which political narratives to prop up and which to ban, has abdicated its right to be called an “open platform,” and is instead acting as a publisher. Many have called for Section 230 protections to be removed from any platform that engages in selective censorship of content that is legally protected.

On Monday, for the first time, the Supreme Court agreed to hear a court case that will test big tech’s immunity to lawsuits over user content. According to Axios, Reynaldo Gonzalez, et al v. Google LLC, the case in question, “alleges YouTube aided and abetted the killing of a 23-year-old American woman during the 2015 ISIS attacks in Paris that killed 130 people and injured hundred more.” Axios reports that “[t]he plaintiffs, the surviving family members of Nohemi Gonzalez, allege Google "provided material support to ISIS" by allowing it to use YouTube "as a tool to commit terrorism,’” but “Google has moved to dismiss the lawsuit, arguing the claims are barred under Section 230.”

The news site further points out that “Justice Clarence Thomas wrote… that Section 230 should be narrowed, saying internet companies have been granted "sweeping protection" and that courts are reading more comprehensive immunity into Section 230 than was intended.”

While totally revoking Section 230 may not be the answer, it’s interesting to see whether the Court will heed Thomas’ advice and crack down on big tech’s immunity.

It’s also worth noting that the federal government–via the FBI and President Joe Biden’s White House–has locked shields with big tech, pressuring Facebook, Twitter, and Instagram to stamp out the Hunter Biden laptop story, unpopular opinions about the COVID-19 vaccine, and other anti-establishment content.

While the future relationship between social media and Section 230 is yet to be decided, the case against the federal government has already been made: for Joe Biden or anyone else in Washington to collude with big tech in a purely partisan effort to restrict the American people’s First Amendment rights is deeply inappropriate.

Thankfully, with a Convention of States, we can do something about that. Every day, Convention of States Action is fighting to save freedom and you can join us! To get involved, sign the Convention of States petition today!