The US Supreme Court Doesn’t Understand the Internet

Recent laws in both Texas and Florida have sought to impose greater restrictions on the way platforms can and cannot police content.

Gonzalez v. Google takes a different track, focusing on platforms’ failure to deal with extremist content. Social media platforms have been accused of facilitating hate speech and calls to violence that have resulted in real-world harm, from a genocide in Myanmar to killings in Ethiopia and a coup attempt in Brazil.

“The content at issue is obviously horrible and objectionable,” says G. S. Hans, an associate law professor at Cornell University in New York. “But that’s part of what online speech is. And I fear that the sort of extremity of the content will lead to some conclusions or religious implications that I don’t think are really reflective of the larger dynamic of the internet.”

The Internet Society’s Sullivan says that the arguments around Section 230 conflate Big Tech companies—which, as private companies, can decide what content is allowed on their platforms—with the internet as a whole. 

“People have forgotten the way the internet works,” says Sullivan. “Because we’ve had an economic reality that has meant that certain platforms have become overwhelming successes, we have started to confuse social issues that have to do with the overwhelming dominance by an individual player or a small handful of players with problems to do with the internet.” 

Sullivan worries that the only companies able to survive such regulations would be larger platforms, further calcifying the hold that Big Tech platforms already have.

Decisions made in the US on internet regulation are also likely to reverberate around the world. Prateek Waghre, policy director at the Internet Freedom Foundation in India, says a ruling on Section 230 could set a precedent for other countries.

“It’s less about the specifics of the case,” says Waghre. “It’s more about [how] once you have a prescriptive regulation or precedent coming out of the United States, that is when other countries, especially those that are authoritarian-leaning, are going to use it to justify their own interventions.”

India’s government is already making moves to take more control over content within the country, including establishing a government-appointed committee on content moderation and greater enforcement of the country’s IT rules.

Waghre suspects that if platforms have to implement policies and tools to comply with an amended, or entirely obliterated, Section 230, then they will likely apply those same methods and standards to other markets as well. In many countries around the world, big platforms, particularly Facebook, are so ubiquitous as to essentially function as the internet for millions of people.

“Once you start doing something in one country, then that’s used as precedent or reasoning to do the same thing in another country,” he says.