Home » Elon Musk, internet freedom, and how the Supreme Court might force big tech into a catch-22

Elon Musk, internet freedom, and how the Supreme Court might force big tech into a catch-22

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“The Birds Are Set Free” Elon Musk murmured That night, he completed the acquisition of Twitter for $44 billion.

What he didn’t say is that a string of lawsuits may soon cut wings.

self-proclaimed free speech absolutistMusk suggested relaxing Twitter’s content moderation rules, Allow offensive remarks to be left on the siteWhen Undo some banned users.Bohemian picture of hellHe showed his own freewheeling approach to speech when he tweeted (and deleted) a link to . false conspiracy theory About House Speaker Nancy Pelosi’s husband.

The Musk takeover and supposed Twitter overhaul come at surprising times. The laws of the Internet may be about to undergo the most dramatic change since the days of CompuServe and AOL.as Georgetown jurist Anupam Chander wrote, Silicon Valley’s prosperity in the United States is largely due to a well-designed legal system. Legislators and courts of the late 20th century helped emerging technology companies do business without fear of liability, much as 19th-century judges devised common law principles to foster industrial progress. enacted various substantive reforms that allow The legal pillars that helped the Internet grow are the same ones that enable Musk to implement many of the reforms he has proposed. But those pillars are under threat.

Last month, the Supreme Court agreed to hear two cases that will test the largest pillar. Section 230 A landmark law of 1996, the Communications Decency Act, provides immunity from civil lawsuits arising from user-generated content hosted on platforms by technology companies. Section 230 states that individual users can be sued if they post defamatory, harassing, or other forms of harmful remarks (e.g., spreading conspiracy theories about an 82-year-old assault victim). Yes, but platforms (with some exceptions) do not.

gonzalez vs google When Twitter vs Taamneh may change that. Gonzalez We ask if the Section 230 exemption would be lifted if the platform endorsed or amplified the offending content to its users. Tamune asks whether a company can be held responsible for “supporting and ).

Many experts in law and technology were shocked when the court decided to rehear these cases (which are due to be tried next year). Judges generally do not hear these types of cases unless the circuit court is divided on the underlying legal issue. There is no actual circuit court division. (Lower courts who have considered this question are fairly uniform in their broad interpretation of §230.) , these lawsuits may be imperfect as a means of settling a series of cases. Issues Section 230 touches on.

So the fact that the court has filed a lawsuit suggests that at least some judges want to shorten section 230. One of them, his Judge Clarence Thomas, has already telegraphed his view. last year When early this yearhe questioned the broad protections of the law and called on his colleagues to review them severely. wrote before about how the ideas that Thomas has floated in his own voice are gaining more and more majority in the newly conservative courts.)

Apart from this, two other cases are pending.of Net Choice vs Paxton When Moody vs. Net Choice, the tech industry is challenging laws in Texas and Florida that limit platforms’ ability to remove user-generated content. I think I have a bias against it, and I’m trying to reduce what’s called censorship. Tech companies have their own peculiarities on their platforms, such as the First Amendment (not to mention Section 230!) banning not necessarily illegal but harmful speech, such as misinformation about elections or COVID vaccines. claims to protect the right to set rules for

The Supreme Court has not yet decided whether to take up this issue. net choice litigation.but unlike Gonzalez When TamuneThe US Court of Appeals for the Fifth Circuit (Judge Samuel Alito’s Counsel Opinion) upheld the Texas law, and the US Court of Appeals for the 11th Circuit nullified a similar law in Florida. That makes it very likely that a judge will intervene.

The end result for Twitter and other social media companies is a new world of little-known risks. If the Supreme Court narrows Section 230, Mr. Musk can forget about his commitment to lighter moderation. Almost everything Twitter does is built on content recommendations generated by complex algorithms that respond to the unpredictable behavior of human users. (The same is true for all other major social media companies. Search engines are no different.) Any time an obscure bit of questionable content is amplified by an automated anomaly in the algorithm, the company will be killed. If it can be dragged into court, the company has little choice but to remove more content on the front end.

If Courts Uphold Texas and Florida Laws, Companies Will Face New Penalties for Removals too much content. And the conundrum could get even worse: you can imagine blue states passing their own platform regulations that directly contradict those of red states. demand Any platform that removes the same false information that the Red State claims cannot be removed.

Mr. Chander believes that the ultimate loser of such an administration will be the very freedom of speech and open internet Mr. Musk professes to champion.

“If you let the left and right platforms take on a huge amount of responsibility,” he said.

Of course, Congress could solve this problem by clarifying the scope of Section 230. After all, that key clause is only 26 words long and 26 years old. It may be time for an update.Congress can also use its power under the Constitution superiority clause Preempting state laws that conflict with the protections of section 230. But the reform proposals (from both left and right) didn’t work. We are all flying blind until they do.

This column First published in the National Journal on November 3 Owned by and licensed by the National Journal Group LLC.

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