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U.S. Supreme Court hands social media companies a major victory

AILSA CHANG, HOST:

Let's head to the Supreme Court, which handed social media companies a major victory today. It was the first test case involving a legal shield adopted 27 years ago to protect internet companies from lawsuits. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In two separate cases, the families of people killed in terrorist bombing attacks sued Twitter, Facebook and YouTube, claiming that the companies had violated the Federal Anti-Terrorism Act, which specifically allows people to sue for aiding and abetting terrorism. The families allege that the companies did more than passively provide platforms for communication. Rather, they contended that by recommending ISIS videos to those who might be interested, the internet platforms were seeking to get more viewers and increase their ad revenue even though they knew that ISIS was using their services as a recruitment tool.

But today, the Supreme Court unanimously rejected those claims. Writing for the court, Justice Clarence Thomas said that the social media companies' so-called recommendations were nothing more than agnostic algorithms that navigated an immense ocean of content in order to match material to users who might be interested. The mere creation of these algorithms, he said, does not constitute culpability any more than it would for a telephone company whose services are used to broker drug deals on a cellphone. At bottom, he said, the claims in these cases rest less on affirmative misconduct and more on an alleged failure to stop ISIS from using these platforms. In order to have a claim, he said, the families would have to show that Twitter or some other social media platform pervasively and with knowledge assisted ISIS in every single attack.

Columbia University law professor Timothy Wu, who specializes in this area of the law, reads the tea leaves of today's decision as less than hopeful for those who wanted the court to curb the scope of Section 230 in this case. Two thirty is the shorthand for the law enacted to shield internet platforms from being sued for other people's content.

TIMOTHY WU: I think there was a lot of hope, and frankly, I think the Biden administration was maybe hoping that the task of 230 reform would be undertaken by the Supreme Court as opposed to by Congress. But I think this puts new pressure on Congress to do something.

TOTENBERG: Even though, as he observes, Congress seems to have great difficulty doing most things these days. But lawyer Andrew Pincus, who filed a brief on behalf of the U.S. Chamber of Commerce in this case, sees today's decision as a victory for free speech and a vindication of Section 230's protections from lawsuits for internet platforms.

ANDREW PINCUS: There are significant downsides in imposing liability on companies that have internet platforms like the companies in these cases because what Congress said it wanted was to facilitate broad online debate and to make those platforms accessible to everyone.

TOTENBERG: Section 230, of course, does have a provision encouraging internet companies to police their platforms to remove harassing, defamatory and false content. And while some companies point to their robust efforts to take down such content, Twitter, the company that won today's case, is now owned by Elon Musk who, since acquiring the company, has fired lots of people who were charged with eliminating disinformation and other harmful speech.

While today's decision was a huge victory for Twitter and other social media platforms, many questions remain unresolved. The lower courts, for instance, have almost uniformly ruled that people alleging defamation, harassment and other harms cannot sue internet companies the way that they would sue a newspaper, for instance. The Supreme Court has so far never ruled on those issues, but today's decision could be a harbinger.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.