Tangle - The Supreme Court's Section 230 decision.

Starting point is 00:00:00 Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight.

Starting point is 00:00:19 Interior Chinatown is streaming November 19th, only on Disney+. Chinatown is streaming November 19th, only on Disney+. From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle Podcast, an independent, nonpartisan, subscriber-supported politics podcast where we summarize the best arguments from across the political spectrum on the news of the day, and then I offer you my take. Today, we are covering the Supreme Court's rulings in two cases with very high stakes for big tech and social media companies and the degree to which they are liable for what users do on their

Starting point is 00:01:13 platforms. The rulings came down last week. We're going to talk about what happened, why they matter, and some reactions to people from across the political spectrum. It's a pretty unique one today, actually, because there is a lot of bipartisan agreement on this, which is not typical, obviously, for stuff we cover, but also not typical for a lot of these really high stakes Supreme Court challenges. Before we jump in, though, as always, we're going to start off with some quick hits. First up, Florida Governor Ron DeSantis will officially be announcing his presidential campaign on Twitter at 6 p.m. Eastern today alongside Twitter CEO Elon Musk. Number two, U.S. Surgeon General Vivek Murthy issued an advisory on the dangers of social media for children, highlighting its negative impact on mental health.

Starting point is 00:02:06 Number three, the state attorney general in Illinois said it has uncovered 2,000 cases of child sexual abuse by Catholic clergy over the last seven decades. Number four, House leadership in both parties advised members they could be kept in session through Memorial Day as debt ceiling negotiations continue. Number five, former President Trump's criminal trial for alleged hush money payments will take place in March of 2024 in the middle of primary season. And the Supreme Court has issued opinions on a pair of cases challenging U.S. social media companies for their alleged role in terrorist attacks overseas. Families of victims in a terrorist attack in Turkey had alleged Facebook, Twitter and Google aided and abetted ISIS by spreading its messages online.

Starting point is 00:03:00 The Supreme Court sided with the social media companies. It also declined to weigh in on the scope of Section 230 of the Communications Decency Act, which grants sweeping legal immunity to Internet companies. It's really focused on Section 230 of federal law, which really is seen as the bedrock of the Internet. It says that social media companies and websites cannot be sued for the material that is on their sites. In other words, you can't be sued for things that are being posted on your site. Twitter can't be sued for the speech that people are expressing.

Starting point is 00:03:32 On Thursday, the Supreme Court ruled against the family of a 2017 ISIS attack victim who had sued Twitter, Facebook, and Google in an effort to hold them liable for allowing ISIS to use their platforms. The court ruled unanimously that the lawsuit could not move forward. Along with that ruling, the justices sent Gonzalez v. Google LLC, a similar case, back to the lower courts. That decision sidestepped any major changes to the scope of Section 230 of the 1996 Communications Decency Act, which shields tech companies from liability for content published by users. The Twitter versus Tomna case was brought after Norris Al-Asaf, a Jordanian citizen, was killed in an ISIS attack. Al-Asaf's family, the Tomnas, sued under the Justice Against

Starting point is 00:04:20 Sponsors of Terrorism Act, or JASTA, which prohibits aiding the abetting of international terrorism. The Tamla family said Twitter and other tech companies knew their platforms had helped ISIS recruit new members, but failed to take action to keep them off their platform. Similarly, in Gonzalez vs. Google, the family of Nohemi Gonzalez, who was killed in a 2015 terrorist attack in Paris, France, sued Google and YouTube. The Gonzalez family says Google allowed ISIS to recruit on their channels, ultimately leading to Nohemi's killing. The Gonzalez vs. Google case was particularly notable because the family argued that Google,

Starting point is 00:05:02 which owns YouTube, was liable for the algorithm that recommended ISIS videos, something the plaintiffs argued constituted Google's own speech. This created a separate legal issue from Tomna on the question of whether Google's algorithm was also protected by Section 230. We previously covered these cases in a February podcast and newsletter, and there are links to those in today's episode description. Lower courts had ruled in favor of Google already, saying that Section 230 protects them from any liability for third-party content on their service. All the justices seemed skeptical of changing that liability shield during oral arguments, though they came to their conclusions through different reasoning. In the unanimous opinion in Twitter v. Tomna, Justice Clarence Thomas said that bad actors being able to use online platforms for illegal and sometimes violent ends does not make the platforms culpable. Otherwise, he argued, the same could be said of cell phone carriers, email, or the internet generally, according to a SCOTUS blog summary of the ruling.

Starting point is 00:06:05 and abetting terrorism, the family of Al-Asaf needed to show that those companies failed to keep ISIS from using the platform and that there was a direct link between the tech companies and the attacks that killed their family member. They didn't show that, but rather observed that tech companies treated ISIS like other users, at arm's length, passive and largely indifferent, Thomas said. Justice Ketanji Brown Jackson wrote a concurring opinion, though she left the door open for future litigation, writing that other cases presented different allegations that may lead to different conclusions. The court then ruled that Gonzalez v. Google presented a similar fact pattern and should be sent back to the lower courts for re-evaluation, given the court's ruling in Tomna v. Twitter. The court effectively ruled that Section 230's scope should

Starting point is 00:06:45 be left to Congress or could be challenged in other cases, but punted on any ruling that would either alter or reaffirm the law. Today, we're going to take a look at some reactions from the right and the left to the court's rulings in these cases, and then my take. First up, we're going to include an agreed section in today's podcast. Many commentators on both the left and the right are supportive of the Supreme Court's decision not to rewrite or fundamentally alter Section 230. While each side's reasoning is different, there is widespread relief about the court's decisions in both the unanimous ruling and the brief sending Gonzalez v. Google back to the lower courts. First up, we'll start with what the right is saying. Many on the right are relieved by the ruling, arguing that the court made the right decision and preserved a free and open internet. Some said Section 230 is only safe for now and future challenges could be coming. Others argued that conservatives should be relieved and any ruling

Starting point is 00:07:54 against Section 230 could have backfired on them. In reason, Elizabeth Nolan Brown said Section 230 is safe for now. Advocates for free speech and open internet and sensible tech policy were anxiously awaiting the Supreme Court's decision in Gonzalez v. Google, a case that gave the court a chance to weigh in on a controversial law called Section 230. Now that ruling is here, and it's good news for civil libertarians concerned about Section 230's fate, Brown wrote. Section 230 is the internet's first amendment and its haters want to give states more ability to bring civil suits against tech companies for all sorts of alleged harms. Doing so would, of course, seriously weaken the incentives and protections

Starting point is 00:08:35 for free speech online, she said. On Thursday, the Supreme Court effectively sidestepped the issue of algorithms and Section 230 immunity in a narrow decision that only addressed the underlying claim that Google was guilty of violating Section 233 of the Federal Anti-Terrorism Act. It also ruled unanimously in Twitter vs. Tomna that Twitter was not guilty of aiding and abetting terrorists. That doesn't mean Section 230 is safe from Supreme Court rulings that it doesn't apply to algorithmic recommendations, merely that the issue was avoided for now. For the American Enterprise Institute, Shane Tews and Clay Calvert said internet users and platforms can breathe a sigh of relief. One important facet of the social media platform's victory in Tomno was the court's conclusion that algorithmic

Starting point is 00:09:22 recommendations of content do not constitute active substantial assistance. As Justice Thomas wrote, the algorithms appear agnostic as to the nature of the content, matching any content, including ISIS's content, with any user who is more likely to view that content. The fact that these algorithms match some ISIS content with some users thus does not convert defendants' passive assistance into active abetting. That's great news for all social media platforms today that depend on such agnostic algorithms to helpfully connect users with content based on past searches and views, they wrote. The court rinsed and repeated the same logic to punt on Section 230 and Gonzalez,

Starting point is 00:10:02 though that issue will likely rise again in litigation around another case. For now, the court left Section 230 fully intact and declined to meddle with a statute that has allowed the internet over the past quarter-plus century to grow into a vast, albeit sometimes inevitably imperfect, marketplace of ideas. Without it, the internet would be a one-sided experience of marketing propaganda rather than the interconnected exchange of information across the globe. In National Review, Bobby Miller said SCOTUS gets it right on Section 230. In February, I wrote about how efforts to convince the Supreme Court to roll back Section 230 of the Communications Decency Act of 1996 in Gonzalez v. Google and Twitter v. Tomna could backfire on conservatives.

Starting point is 00:10:47 Well, it looks like we can exhale a little. Today, the court declined to revisit the foundational internet law, he wrote. A significant scaling back in the legal immunities granted to online platforms could have triggered a desire for increased censorship on the part of big tech, leading to an increase in content moderation. This could have resulted in social media companies imposing more restrictions on conservative discourse, not fewer. Rest assured, there is no longer a danger, for now. Let's keep our fingers crossed that Section 230's critics on the right refrain from resurrecting this misguided endeavor, Miller wrote. All right, that is it for what the right is saying, which brings us to what the left is saying. Many on the left are celebrating that the court didn't break the

Starting point is 00:11:38 internet. Some said these rulings were a major win for big tech that goes beyond just Section 230. these rulings were a major win for big tech that goes beyond just Section 230. Others expressed skepticism that this is really a win for big tech at all, suggesting Section 230 could still be at risk. In Vox, Ian Millhiser said the Supreme Court decided not to break the internet. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+.

Starting point is 00:12:24 Clarence Thomas did something right for a change, Millheiser said. Both Justice Thomas' unanimous opinion in Twitter vs. Tomna and the court's brief, unanimous, and unsigned opinion in Gonzalez vs. Google show admirable restraint. The justices add clarity to a 2016 anti-terrorism law that, if read broadly, could have made tech companies whose products form the backbone of modern-day communications liable for every violent act committed by the terrorist group ISIS. The plaintiffs attempted a breathtaking argument, and as Thomas wrote, it would imply any U.S. national victimized by an ISIS attack could bring the same claim based on

Starting point is 00:13:02 the same services allegedly provided to ISIS. Though the plaintiff's theory rests on a plausible reading of the vaguely worded JASTA statute, the court's decision establishes that, at the very least, a company has to do more than provide its product to any customer in the world, including customers who may use that product for evil purposes in order to be held liable for a terrorist act. In the Washington Post, Will Aramis said these rulings were a win for tech and not just on Section 230. This is a blow to the idea gaining adherence in Congress and the White House that today's social media platforms ought to be held responsible when their software amplifies harmful content. The Supreme Court ruled that they should

Starting point is 00:13:42 not, at least under U.S. terrorism law, Ormus wrote. Lawmakers have increasingly worried that social media companies are more than neutral conduits for speech, and their roles can actively shape online communication. Thus, they need regulation. The court ruled, however, that those decisions are not enough to find the platforms had aided and abetted ISIS in violation of U.S. law. While Thomas has expressed interest in revisiting Section 230, which he sees as giving tech companies too much leeway to suppress or take down speech they deem to violate their rules, his apparent dislike of content moderation is also consistent with today's opinion, which will reassure social media companies that they won't

Starting point is 00:14:21 necessarily face legal consequences for being too permissive on harmful speech, at least when it comes to terrorist propaganda. There was also no dissent to Thomas's view that an algorithm's recommendation wasn't enough to hold a social media company liable for a terrorist attack. In Bloomberg, Stephen L. Carter questioned whether this was the big win for many tech commentators they say it is. I'm not so sure big tech won much at all. All the justices really did was kick the can down the road a bit. When the issue comes back before them again, and it will probably soon, there are at least four justices who seem willing to weaken or eliminate the liability shield, he said. For all we know, the

Starting point is 00:15:00 next case in federal court could find a sympathetic judge who decides that Section 230 does not, in fact, shield Internet service providers from liability when their content causes harm. There isn't a single word in the court's decisions to serve as a restraint. Justice Clarence Thomas, the court's most senior member, is a well-known skeptic of the view that Section 230 renders the ISPs immune from suit. The court's newest member, Katonji Brown-Jackson, has questioned whether it is consistent with what Congress intended to use the provision to protect ISPs from suits when they actually promote, as opposed to merely transmit troubling content. Other justices, particularly Amy Coney Barrett and Samuel Alito, also seem to disagree with the broad claims of protection made by the ISPs. All right, that is it for the left and the right are saying, which brings us to my take.

Starting point is 00:15:58 So when we covered these cases in February, we focused specifically on Section 230 and the arguments for and against it. Part of the reason we did that is because of what you see today. There is a lot of bipartisan agreement on how the Supreme Court should have ruled in these cases, even if there is disagreement about what Section 230 does and how it might be improved. In that piece, I wrote the following, quote, In the Gonzalez case, I think my position is rather straightforward. The court should stay out of the way. Section 230 is quite clear as it's written, and it seems obvious to me that it protects

Starting point is 00:16:32 what YouTube did in this case, and that the line of causation that follows from its algorithm is specious at best. Most of the justices seem to view it this way, too, and I don't think we're going to see this case upend the law or how Section 230 functions. So, I got all of that right, basically, and I'm glad to see the justices rule the way they did in Tomna, and very glad to see them effectively kick the Section 230 can down the road. What was fascinating about Thomas's writing in this case is that he very much leaned on the old common law, quoting a 1795 English treatise on what constituted aiding and abetting. That treaty said a person present aiding and abetting the fact to be done

Starting point is 00:17:12 could be held liable for the criminal act of another. But Thomas noted, in his opinion, that this was obviously never meant to be boundless. As Millhiser put it, a reasonable expansion of such an interpretation could mean Ford is liable for selling a truck to a man who then runs over and kills another person. Just as I wrote back in February, I am an ardent supporter of Section 230, and I believe it preserves an open and free internet. I'm relieved the Supreme Court did not try to tinker with it here. If Section 230 is going to change, it should happen because of an act of Congress, and in that space, there is probably some wiggle room. Congress could amend or alter

Starting point is 00:17:50 Section 230 to open the door for plaintiffs to sue a company like Google if they are able to prove a direct connection between a criminal act and the promotion of criminal behavior on the platform. It was apparently obvious to the nine justices, to me, and to many other pundits, that no such connection existed in the cases the court just heard. But that doesn't mean they won't ever happen. And, as some pundits have convincingly argued, Section 230 may provide too much immunity to big tech, even if it does help preserve and foster a flourishing internet. Either way, this distinction was never something the court should have ruled on, and this nuance is something that should only be fleshed out by the legislature. If members of Congress believe the threat is imminent,

Starting point is 00:18:33 they should do their job and craft legislation to address it directly. All right, that is it for my take, which brings us to your questions answered. This one is from Lindsay in Phoenix, Arizona. Lindsay said, I appreciate your newsletter and always look forward to reading it. I was curious as to how you came up with the name Tangle for this newsletter. So funny story, actually, my brother-in-law suggested the name Tangle. When I first started fleshing out the concept of the newsletter, I actually didn't have a name. So I sent some examples of the newsletter to about 100 friends and colleagues. In those emails, I explained what I was going to do, the format, my plan, and then I asked for submissions on potential names. We got a lot

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Starting point is 00:20:08 I only made one big mistake on the name. My brother-in-law asked me for 1% equity in Tangle when I told him we were going to use his suggestion and I gave him a handshake deal on it, very unsure if this would ever turn into a successful business. So now that it has, I get a text from him every few weeks reminding me

Starting point is 00:20:25 that he now owns a piece of whatever I'm building. All right, that is it for today's reader question, which brings us to our under the radar section. In a little notice remark at an award ceremony, Chief Justice John Roberts said the Supreme Court is continuing to take steps to address questions about the justices' ethical standards. I want to assure people that I am committed to making certain that we as a court adhere to the highest standards of conduct, he said. We are continuing to look at things we can do to give practical effect to that commitment, and I am confident that there are ways to do that consistent with our status as an independent branch of government and the Constitution's separation of powers. Roberts has previously turned down an invitation to testify before a Senate committee

Starting point is 00:21:12 on allegations of impropriety at the court, citing the exceedingly rare nature of such testimony. His comments were reported by the New York Times' Adam Liptak, who covers the court. There is a link to that story in today's episode description. All right, next up is our numbers section. The number of days until the U.S. government potentially defaults on its $31 trillion debt is eight. The approximate number of cases filed to the Supreme Court every year is 7,000. The approximate number of cases the court agrees to Court every year is 7,000. The approximate number of cases the court agrees to hear every year is 100 to 150. From 2011 to 2021, the percentage increase

Starting point is 00:21:53 of teenagers and young adults who had clinical depression was 100%, which is double, according to San Diego State University research. Former President Donald Trump's lead over Ron DeSantis in national polling is now at 33 percentage points, up from 16 points in March. All right, and last but not least, our have a nice day section. For a long time, other states have looked down on Mississippi, Alabama, and Louisiana for their education scores, but that is starting to change. The Gulf South, after years of improving test scores for its kids, is now becoming a region to model rather than a region to mock. Mississippi has gone from 49th in reading scores for fourth graders in 2013

Starting point is 00:22:37 to 21st in 2022. Meanwhile, Louisiana and Alabama were the only states to see improvements during the pandemic. The turnaround has been credited in large part to literacy laws that emphasize phonics and early screenings for struggling kids, and educators nationally are taking notice, dubbing it the Mississippi Miracle. The Associated Press has the story, and there's a link to it in today's episode description. All right, everybody, that is it for today's podcast. Before we get out of here, two big reminders. First of all, we have an event, Philadelphia, August 3rd. It's happening. There are links to tickets in the episode description. You can go to Tangle live on the Tangle homepage at readtangle.com to read more about it. Also, there are links in

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Tangle - The Supreme Court's Section 230 decision.

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