This post originally appeared on Techdirt on 2/3/18.
With the event at Santa Clara earlier this month, and the companion essays published here, we’ve been talking a lot lately about how platforms moderate content. It can be a challenging task for a platform to figure out how to balance dealing with the sometimes troubling content it can find itself intermediating on the one hand and free speech concerns on the other. But at least, thanks to Section 230, platforms have been free to do the best they could to manage these competing interests. However you may think they make these decisions now, they would not come out any better without that statutory protection insulating them from legal consequence if they did not opt to remove absolutely everything that could tempt trouble. If they had to contend with the specter of liability in making these decisions it would inevitably cause platforms to play a much more censoring role at the expense of legitimate user speech.
Fearing such a result is why the Copia Institute filed an amicus brief at the Ninth Circuit last year in Fields v. Twitter, one of the many “how dare you let terrorists use the Internet” cases that keep getting filed against Internet platforms. While it’s problematic that they keep getting filed, they have fortunately not tended to get very far. I say “fortunately,” because although it is terrible what has happened to the victims of these attacks, if platforms could be liable for what terrorists do it would end up chilling platforms’ ability to intermediate any non-terrorist speech. Thus we, along with the EFF and the Internet Association (representing many of the bigger Internet platforms), had all filed briefs urging the Ninth Circuit to find, as the lower courts have tended to, that Section 230 insulates platforms from these types of lawsuits.
A few weeks ago the Ninth Circuit issued its decision. The good news is that this decision affirms that the end has been reached in this particular case and hopefully will deter future ones. However the court did not base its reasoning on the existence of Section 230. While somewhat disappointing because we saw this case as an important opportunity to buttress Section 230’s critical statutory protection, by not speaking to it at all it also didn’t undermine it, and the fact the court ruled this way isn’t actually bad. By focusing instead on the language of the Anti-Terrorism Act itself (this is the statute barring the material support of terrorists), it was still able to lessen the specter of legal liability that would otherwise chill platforms and force them to censor more speech.
In fact, it may even be better that the court ruled this way. The result is not fundamentally different than what a decision based on Section 230 would have led to: like with the ATA, which the court found would have required some direct furtherance by the platform of the terrorist act, so would Section 230 have required the platform’s direct interaction with the creation of user content furthering the act in order for the platform to potentially be liable for its consequences. But the more work Section 230 does to protect platforms legally, the more annoyed people seem to get at it politically. So by not being relevant to the adjudication of these sorts of tragic cases it won’t throw more fuel on the political fire seeking to undermine the important speech-protective work Section 230 does, and then it hopefully will remain safely on the books for the next time we need it.