This year, the U.S. justice system, including the Supreme Court, will take on cases that will help determine the bounds of free expression on the internet.
The saga of Musk's Twitter takeover has underscored the complexity of determining what speech is truly protected. That question is particularly difficult when it comes to online platforms, which create policies that impact wide swaths of users from different cultures and legal systems across the world.
Brody said whenever the parameters of content moderation get tweaked, people need to consider "whose speech gets silenced when that dial gets turned? Whose speech gets silenced because they are too fearful to speak out in the new environment that is created?"Facebook's new rebrand logo Meta is seen on smartpone in front of displayed logo of Facebook, Messenger, Intagram, Whatsapp and Oculus in this illustration picture taken October 28, 2021.
"On the one hand, in the NetChoice cases, there's an effort to get platforms to leave stuff up," said Jennifer Granick, surveillance and cybersecurity counsel at the ACLU Speech, Privacy, and Technology Project. "And then the Taamneh and the Gonzalez case, there's an effort to get platforms to take more stuff down and to police more thoroughly. You kind of can't do both.
Under such a system, tech companies "would be forced to go to any common denominator that exists," according to Chris Marchese, counsel a NetChoice. Jim Steyer, CEO of Common Sense Media, which has advocated for the California law and other measures to protect kids online, criticized arguments from tech-backed groups against the legislation. Though he acknowledged critiques from outside groups as well, he warned that it's important not to let "perfect be the enemy of the good."
Miers of Chamber of Progress said that even if Google technically wins at the Supreme Court, it's possible justices try to "split the baby" in establishing a new test of when Section 230 protections should apply, like in the case of algorithms. A result like that would effectively undermine one of the main functions of the law, according to Miers, which is the ability to swiftly end lawsuits against platforms that involve hosting third-party content.
"It's much cheaper from a compliance point of view to just censor everything," said Brody of the Lawyers' Committee. "I mean, these are for-profit companies, they're going to look at, what is the most cost-effective way for us to reduce our legal liability? And the answer to that is not going to be investing billions and billions of dollars into trying to improve content moderation systems that are frankly already broken.
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