Any of These Supreme Courts Cases Could Crush the Internet

The Supreme Court just heard arguments in Gonzalez v. Google, a case which news outlets across the ideological spectrum agree will determine the future of free speech on the internet. The headlines are not wrong; a decision against Google could devastate the critical speech-enhancing statute that provides websites the protection they need to host user speech. But Gonzalez is only one of a few online speech cases facing the Court this year. The Court may soon grant review of two lawsuits brought by my employer, NetChoice—NetChoice & CCIA v. Moody and NetChoice & CCIA v. Paxton—which concern state-level efforts to control online speech. The cases will determine if 50 separate state governments can each decide what content is available to their residents online. While an anti-speech judgment in any of these three cases will have destructive consequences, the sum of these judgments could be catastrophic for online free speech.

To understand why, we need to begin with some history. From Ravelry and Roblox to Twitter and Truth Social, the diverse fora for expression and commerce on the internet today are the result of two actions the federal government took to protect speech in the mid-1990s.

First, in 1996, Congress passed the Communications Decency Act, which included Section 230. Section 230 ensured that only users, rather than the online services that host them or other users, may be held liable for the content they host online. Without its protection, websites large and small would likely remove users’ constitutionally protected speech to avoid potential lawsuits.

Second, in 1997, the Supreme Court held in Reno v. ACLU that the First Amendment applies with full force to online speech and media. Reno established that the government cannot compel, censor, or otherwise infringe speech the First Amendment protects just because the speech is made on the internet. This includes services’ editorial discretion over what user content to host and how to present it. Until recently, courts and legislatures alike respected Reno‘s principle that it doesn’t make sense to treat offline speech differently than online speech.

Today, Gonzalez asks whether Section 230’s immunity against lawsuits over other users’ speech applies when online services personalize the presentation of that speech to other users. The plaintiffs argue that when platforms suggest content to users, such as in YouTube’s “Up Next” section, those suggestions go beyond the act of hosting and fall outside of the law’s protection. So while a service would remain immunized for merely hosting content under the plaintiffs’ theory of the statute, it could be liable for highlighting it. 

But highlighting certain content (and not others) is necessary for any service because of the vast amounts of user-generated content today. If future plaintiffs could evade Section 230 by targeting how websites sort content or by trying to hold users liable for liking or sharing articles, the internet would devolve into an incomprehensible mess and a litigation minefield. Most of the justices appeared spooked by such a possibility during Tuesday’s oral arguments. Their reactions are promising but shouldn’t inspire total confidence.

NetChoice & CCIA v. Paxton and NetChoice & CCIA vs. Moody will determine whether the First Amendment will continu