The Supreme Court has chosen to tackle a question at the heart of the debate over Big Tech. When they decide Gonzales v. Google, the justices will have to address for the first time the extent of the legal immunity granted to internet platforms such as YouTube (owned by Google), Facebook, and Twitter under Section 230 of the federal Communications Decency Act. Many conservatives are among those hoping the court will curtail this immunity. But they are likely to be disappointed by a post-230 world.
Enacted in 1996, Section 230 states that platforms are not legally liable for third-party content. It further instructs that a platform shall not be held liable for good-faith actions to remove or restrict access to material it deems “obscene, … excessively violent, harassing, or otherwise objectionable.” Exceptions to this immunity include content that facilitates sex trafficking, infringes intellectual property, violates any federal criminal law, or violates privacy laws.
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Many observers credit Section 230 with providing crucial protection that allowed the nascent World Wide Web to blossom into the colossus it is today. However, as criticism of Big Tech has grown, so has criticism of Section 230.
The Left wants to hold platforms liable for not censoring enough speech — speech offensive to minorities, for example — and the Right wants to hold them liable for censoring too much conservative speech. Hence the many calls for Section 230 to be repealed or limited by Congress, the courts, or even the Federal Communications Commission.
Conservatives are rightfully angry at the liberal bias that seems to pervade platforms’ censorship practices. However, if they believe that limiting Section 230 will effectively combat this bias, they are mistaken.
Even if Section 230 immunity is curtailed, a successful lawsuit would still require good legal claims. And that’s the problem: there’s a dearth of claims that a plaintiff can bring to fight ideological bias.
Various federal civil rights statutes prohibit discrimination on the basis of race, gender, or the like. But political ideology is not among the protected classes. Nor are there federal laws outside the civil rights domain that provide a cause of action for ideological discrimination.
There exist a handful of state statutes that prohibit discrimination — primarily employment discrimination — based on political affiliation or political activity, but using them to go after platform censorship is a stretch. More to the point, Texas and Florida recently enacted laws aimed at punishing platforms for ideological bias. A federal appeals court struck down the Florida law on First Amendment grounds because it regulates the speech of private companies, and there is a good chance the Texas law will meet the same fate in the Supreme Court.
Sen. Josh Hawley (R-MO) and others have proposed federal laws that would punish the platforms for ideological discrimination. But they would face the same First Amendment problems and, in any case, no such laws will be enacted while Democrats control the presidency or a house of Congress.
On the positive side, both the Texas and Florida laws contain provisions requiring platforms to be more transparent about their censorship decisions, and almost all of those provisions have been upheld by the courts.
While the small number of platform bias lawsuits that conservatives have brought — suits by Tulsi Gabbard and Prager University against Google, for example — have almost universally failed on Section 230 grounds, they provide a good preview of the claims we’d see in a world without Section 230. Those suits have relied largely on free speech claims and allegations of anti-competitive behavior or misrepresentation of content moderation policies.
The free speech claims will continue to fail even if Section 230 is repealed. The First Amendment prohibits censorship only by the government, and the bar for showing that a private tech company is a “state actor” is a high one. Even Twittergate’s revelations of collaboration between the platforms and the federal government regarding censorship are likely not enough.
Allegations of anti-competitive behavior, such as in Freedom Watch v. Google, are also likely to fail, irrespective of Section 230, because they must show collusion between companies. Bias against users is not enough.
Allegations that platforms misrepresent their content moderation policies — typically breach of contract claims — stand the best chance if 230 is repealed. But punitive damages are ordinarily unavailable for contract claims, and compensatory damages are unlikely to be a game changer. Moreover, platforms can forestall these claims by adjusting the wording of their representations.
While conservatives will struggle to find successful causes of action under a post-230 regime, the same will not be true on the Left. The dearth of laws that can fight ideologically-based censorship is not a problem for progressives, both because there is no systemic anti-liberal bias on the major platforms and because the Left wants the platforms to engage in more censorship.
While civil rights laws won’t help conservatives battle bias, they will become powerful weapons in the hands of progressives if Section 230 is weakened or repealed. Again, the lawsuits against platforms that have largely failed because of Section 230 are instructive. They tell us that, without Section 230 immunity, there will be a plethora of civil rights lawsuits that seek to hold platforms liable for ads — for housing, credit, and especially employment — that allegedly discriminate on the basis of race, ethnicity, sex, religion, age, or disability. Similarly, the door will be open to claims that third-party posts create a hostile environment online.
We’ll also see an explosion in the tort claims brought against platforms — for product liability, intentional infliction of emotional distress, and the like — that will please progressives and their allies, the trial lawyers’ bar.
Perhaps conservatives will take some satisfaction in the explosion of lawsuits against the platforms. But a sober analysis indicates they will be far less successful than the Left at weaponizing the legal tools available in a post-230 world. Rather than ameliorating anti-conservative bias, the demise of Section 230 would be a big win for progressives.
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Curt Levey is a constitutional law attorney and president of the Committee for Justice.
