The invention of the internet democratized free speech. Now, those rights are at risk | Opinion

It’s easy to loathe much that’s on the internet and and want change, but we must also remember that the internet is the most important tool for communication since the invention of the printing press.

On Feb. 21 and 22, the Supreme Court heard two cases that could have enormous implications for the future of the internet and social media. Gonzalez v. Google involves a crucial provision of federal law — Section 230 of the Communication Decency Act — which provides that internet platforms cannot be held liable for the speech that’s posted there or for the decisions they make about the kind of speech that gets prohibited.

Billions of things are posted on the internet every day and these platforms already engage in extensive content moderation. From October to December 2021, Facebook says it took action against terrorism content 7.7 million times; bullying and harassment 8.2 million times; and child sexual exploitation material 19.8 million times. In the last quarter of 2020, Facebook took action on over 1.1 million pieces of content per day.

Literally billions, if not trillions, of choices are made each year by internet and social media companies about what to include or exclude on their platforms. They may not always moderate perfectly, but they’re able to do a great deal of it, and do it pretty well, because of the protection provided by the First Amendment and a federal law, section 230, that immunizes platforms from liability for their content moderation decisions.

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Gonzalez v. Google involves a lawsuit by the estate of a victim of terrorist activity that claims that Google was not entitled to immunity under Section 230 because it used algorithms to draw attention to material about terrorism. Naomi Gonzalez, an American college student studying in Paris, died in a terrorist bombing. Her family sued Google, saying its algorithms facilitated terrorism. If Gonzalez’s family wins, then an internet or social media company would completely lose immunity from suit once it uses an algorithm in organizing material.

As Justice Elena Kagan explained during oral arguments, “Anytime you have content, you also have these presentational and prioritization choices that can be subject to suit.”

At the oral arguments on February 21, the justices seemed rightly concerned about opening the door to such liability for internet and social media companies. It’s hard to imagine how the internet could function without the use of algorithms, and opening the door to liability would create a flood of claims from anyone who alleges to have been hurt by anything on social media.

Meanwhile, another case, Twitter v. Tamneh, involves whether a social media platform can be held liable under the Anti-Terrorism Act, which provides liability for “knowingly providing substantial assistance” to terrorism organisms. Jordanian citizen Nawras Alassaf died in 2017 during an Islamic-state attack in Istanbul. Alassaf’s family sued social media companies for failing to control terrorist activity on their platforms. The issue doesn’t concern Section 230, but rather whether Twitter violated the Anti-Terrorism Act by not adequately moderating content.

Of the two cases, Gonzalez v. Google is likely more important. If the court rules against Twitter in the latter case, the effect will be that internet platforms must do more to moderate content that facilitates terrorism. But if the court rules against Google, then social media companies would face liability any time they use algorithms at all. Huge platforms like Google and Twitter would survive, but in a very different form. Many other internet and social media companies could likely no longer function.

It’s easy to condemn the awful speech on the internet and social media. But the question is how to deal with this awful speech without undermining what is truly the golden age for freedom of speech. The internet has democratized the ability to reach a mass audience. It used to be that in order to reach a large number of people, a person had to be rich enough to own a newspaper or get a broadcast license. Now, anyone with a smart phone or connection to the internet can do so.

The internet and social media provide instantaneous access to infinite information. My hope is that the Supreme Court will not step in to this enormously complicated landscape. As Kagan said at oral argument, the justices are not experts on the internet and social media companies.

Any ruling against Google or Twitter could have huge unintended consequences for speech. Congress can revise Section 230 if it deems appropriate, but there is no reason for the court to try to do so through these cases.

Erwin Chemerinsky is the dean and a professor at the UC Berkeley School of Law.