A Supremely Inconvenient Time to Misjudge - A SCOTUS Quagmire

The Supreme Court has heard arguments on two cases regarding the Internet and its Section 230 protections for internet companies/providers from responsibility for content posted on their sites/platforms. The two current cases involve YouTube (a Google platform) and Twitter (a private company platform). Both cases are challenging the interpretation of the 26 words of Section 260. These words are:

"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" ( 47 U.S.C. § 230 ).

The current interpretation of these 26 words exempts internet companies and users from any and apparently all responsibilities for how their platforms are used as long as they are not the direct authors of the abuse(s). A major premise of Section 230 was that it was (is?) necessary to allow emerging services, providers, and the internet to compete in the marketplace and protecting them from being held liable for information and content provided by third parties. Part of the rationale was that isolating the services and technology providers from liability of what someone used their platform/service to distribute protected free speech.

Intentions are often good. Intentions however are not the same as consequences. Protecting the nascent social-media and interactive internet industry from being stifled by lawsuits for information that others create was seen as overly burdensome and could infringe on free speech rights. Section 230 did prevent social-media and other interactive service providers from being consumed in lawsuits and financially destroyed by abuses and crimes perpetrated by third parties using their service/platform. Thus, our legislators accomplished one of their goals, even if there is no way to prove that Section 230 was essential in protecting the businesses in actuality. The politicians’ accomplishment, as is usually the case, didn’t come without unintended consequences which may well have been worse than the concern that they were seeking to avoid. This isn’t to say that there were not significantly better ways for the legislators to define the law (Section 230), just that when Congress crafted (or the industry crafted the bill) they only focused on one aspect of the issue: protect the businesses.

Now the Supreme Court has chosen to hear these two cases, but they may be so far out of their depth that they don’t want to make any decision which is broad and all-encompassing and alter the landscape of the Internet. Or the Supreme Court doesn’t understand the issues, the environment, the law itself, and the options that could serve them well in rendering their judgement.

Do the Justices, even one of them, understand the issues? It’s unlikely any one of them knows enough about the technology, the services, the businesses, or the legislation that they are interpreting. Certainly they don’t know the technology at any competent level. They may have some shallow views of the services. They probably think they understand the business, but do not. And, what they understand about the legislation is nowhere near what they ought to understand, simply because they (and their clerks) may not have thought about all the aspects of the law that ought to be applied and used in making their decision.

Do the Justices, even one of them, understand the environment? No. This is true because the environment won’t be considered in the cases that they have taken under assessment. I am not saying it is the Justices’ fault that they don’t understand the environment; rather that no one involved in the cases has likely asked even one question about what is the applicable environment and factors that are pertinent and applicable to the cases. If the Justices haven’t asked a rather basic question in either of the cases, do they know how to apply all the applicable legal requirements to the cases. Thinking you have considered all aspects of the cases, doesn’t mean that you have. It only means that you think you did.

Do the Justices, even one of them, understand the law? Which law do they understand? Is Section 230 the only applicable law? It not, and oddly everyone know it; but they haven’t demonstrated that they have considered all the laws that ought to be considered and applied to the cases. Freedom of Speech is easily recognized as a legal principle which applies to the proper application of Section 230; however it doesn’t negate nor override other laws of equal import.

Finally do the Justices, even one of them, know that there a options which were never considered but which ought to have been when Section 230 was created and passed? Does any Justice know that the problems which are causal reasons and factors in these cases only exist because there are superior ways to state Section 230 that would provide the protections that the industry was seeking and also have prevented the many abuses that the current 26 words enabled. It should hardly be surprising that many of the ills, dangers, and harm that Section 230 has enabled and promoted could easily be eliminated while retaining the desired protections that the providers and services needed.

Whatever the Justices rule, it will almost unquestionable be either overly narrow and of little value or import; or the decision will serve to further enable the abuses, risks, dangers, and harms to propagate more to the detriment of America, to democracies, and to the world. Neither of these outcomes are going to be good the nation. Sadly, if SCOTUS just had better information presented to them that they could deliberate upon, the Justices would be much more likely to render a ruling that benefits the nation, the public, the businesses, and our democracy.

SCOTUS is more aware of its shortcomings on some issues, but they don’t know how to use that awareness to their benefit and to the benefit of the law.