Gonzalez, Taamneh, and Section 230’s Interpretive Debt

In the lead up to this week’s doubleheader episode of Supreme Court Internet Law Adventures in Gonzalez and Taamneh, there has been a ton of attention on the potential impacts of altering the contours of Section 230—both for good and for ill—on Internet platforms and users. But one thing that hasn’t been quite so obvious is the impact on the courts, and I think that was really in play during the oral arguments.

Section 230, enacted in 1996, has allowed the courts to accumulate more than a quarter century of interpretive debt. When it comes to the Internet law pattern of “(a) apply [existing law x] to [new user-generated content platform y] and (b) evaluate what the First Amendment has to say about it,” we have shockingly little case law. This is because Section 230 almost always obviates both questions and gives us an outcome in the platforms’ favor.

As a result, we have almost no idea how huge swaths of law—e.g., tort, contract, civil rights, state criminal law, etc.—might (or might not) be applied to user-generated content platforms as a threshold matter. We have almost no idea how the First Amendment might apply. This means that rugpulling Section 230, whatever your policy preferences, is going to create an enormous amount of work for courts.

(How much work is a hard empirical question. But we can look at 230’s exceptions for indicators—and the body of law for platform copyright liability, Section 512, has generated an enormous degree of attention and litigation over the past quarter century.)

Moreover, the work isn’t going to be simple. Because we haven’t had the benefit of evolving a common law over the course of the last quarter century, courts won’t have the benefit of applying law to the primitive Internet platforms of 1996. They’ll have to start from scratch with today’s hyper-complex, multinational, ubiquitous congomerates, the obscure denizens and startups of the Internet’s long tail, and everything in between.

I don’t like to make predictions about how Supreme Court cases will come out, and it’s always hard to surmise what, if anything, oral arguments mean for the ultimate outcome. But I did get a sense of awareness unfolding among the Supreme Court’s Justices this week of what the profound stakes of a broad alteration of Section 230’s contours might be—not just for the platform defendants in the cases—but for the judicial system that the Justices sit atop.