*Meriam Mossad
I. Introduction
The United States Supreme Court heard oral arguments in Twitter, Inc. v. Taamneh on February 22, 2023.[1] The Court’s ruling could result in liability for internet platforms aiding and abetting terrorism.[2] While civil liability seems sensible to encourage aggressive actions to prevent the use of internet platforms promoting terrorism, this solution would stifle constitutional speech, as platforms would have incentive to remove speech advocating for rights we do not currently have.[3] A ruling in favor of the plaintiff would institute a heckler’s veto and allow the government to censor the internet indirectly.[4]
Nohemi Gonzalez (Gonzalez), a U.S. citizen, was killed in a terrorist attack in Paris, France, in 2015.[5] Gonzalez’s father filed an action against Google, Twitter, and Facebook. The plaintiff claims that all three platforms were liable for aiding and abetting international terrorism by failing to take meaningful action to remove the terrorists’ content. The plaintiff avers that the platforms thus hosted the terrorists’ content, even though they did not play an active role in the performance of international terrorism that actually injured Gonzalez.[6]
II. Collateral Censorship and Heckler’s Veto
First Amendment scholar, Professor Michael Meyerson, has underscored that companies who censor the speech of their customers are not engaging in self-censorship because the companies are not censoring their own speech.[7] Rather, Professor Myerson coined this phenomenon as “collateral censorship.”[8] Collateral censorship occurs when party A controls the speech of party B, and the government holds party A liable for party B’s speech, and in response, party A censors party B’s speech.[9] The risk of collateral censorship from the heckler’s veto is dangerous because intermediaries must often respond to complaints by deleting speech or eliminating a forum, as it would be unduly burdensome to investigate the merits of every complaint.[10]
Some governments directly censor the internet by blocking certain websites or by flooding online platforms with pro-government content to drown out dissenting opinions.[11] The United States may be on the verge of censoring the internet, not through direct government censorship, but through collateral censorship.[12] Twitter, Inc. v. Taamneh may change the landscape of the internet, as this holding would not be limited to content related to terrorism—it would apply to all crimes.[13] As such, platforms would take down content regarding, for example, abortions and marijuana because in certain states marijuana use and abortion health care are crimes.[14]
A. General Speech
Platforms would likely foreclose discussions of controversial subject matter, including advocacy for rights and opportunities currently forbidden by law.[15] This would silence marginalized communities that use the internet as a powerful megaphone to effect lasting change, from the Black Lives Matter movement to the #MeToo campaign to the fight for LGBTQ+ rights.[16] This is the likely outcome as platforms could not use human review of all content due to the sheer volume of online content. Thus, they will err on the side of caution and remove most content.[17] However, automated tools cannot make complex assessments of the illegality of expression, which means that reliance on them will result in an arbitrary denial of lawful speech. Even if human review becomes possible, the platforms will remove speech they believe is legal due to the fear that a judge might disagree with their determination.[18]
B. Speech Regarding Terrorism
Even if the holding is narrowed to apply only to content “aiding and abetting” terrorism, platforms would still censor legal speech due to automated tools’ inability to comprehend the tonal and contextual elements of speech or to identify when speech is satire or published for reporting purposes.[19] Human rights and international legal observers reported that over-surveillance has primarily resulted in the removal of two categories of online speech: (1) the dissemination of news about terrorism and (2) speech in languages other than English.[20] While some platforms may use automated tools to remove all content about terrorism, “problematic content producers will overrun any undefended service, flooding it with material that other users don’t want.”[21]
III. Federalism Issue
Multiple states have together filed an amicus brief in support of the petitioner, arguing that the immunity Section 230 of Title 47 of the United States Code provides internet platforms displaces state law, although Congress did not explicitly write that.[22] To displace traditional spheres of state authority, Congress must “make its intention to do so ‘unmistakably clear in the language of [a] statute.’”[23] The language of Section 230 is clear, stating, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”[24] The language embodies Congress’ obvious intention to preempt state law.[25] Without Section 230 state law preemption, platforms would have to not only remove speech regarding a right that is illegal in State A but also speech regarding a right that is legal in State B to ensure that it does not reach readers in State A.[26]
Furthermore, preemption of state law has not displaced the state’s interests in protecting their citizens, as many states have enacted Anti-SLAPP laws acknowledging the chilling effect of frivolous lawsuits on constitutional speech.[27] There is increasing interest in passing a federal anti-SLAPP law.[28] While a federal anti-SLAPP law would provide social media platforms and users a shield from liability for their constitutional speech, the law would not dismiss these frivolous cases at the outset, while Section 230 does.[29]
IV. Conclusion
Some are characterizing a ruling in favor of the plaintiffs as just another area of law where plaintiffs would be able to sue the largest companies with the deepest pockets instead of the actual wrongdoers.[30] However, such a ruling would change the nature of the internet as we know it, silence constitutional speech, and make the United States another country where the internet is censored.[31]
*Meriam Mossad is an Associate Comments Editor for Law Review and a third-year student at the University of Baltimore School of Law. She currently serves as a student attorney for the Innocence Project Clinic. In 2022, she was a Law Clerk at Silverman Thompson Slutkin and White. After receiving her J.D., Meriam plans to clerk for Judge Stacy McCormack at the Anne Arundel County Circuit Court.
[1] Twitter, Inc. v. Taamneh, 214 L. Ed. 2d 12, 143 S. Ct. 81 (2022).
[2] Reply Brief for Petitioner, Taamneh v. Twitter, Inc., No. 21-1496, 2022 WL 17384573. at *26 (Nov. 29, 2022).
[3] See infra Section II.
[4] Brief of Chamber of Progress et al. as Amici Curiae in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 375037, at *21 (2023).
[5] Twitter, Inc. v. Taamneh, 21-1496, 214 L. Ed. 2d 12, 143 S. Ct. 81 (2022).
[6] Id.
[7] Michael I. Meyerson, Authors, Editors, and Uncommon Carriers: Identifying the “Speaker” Within the New Media, 71 Notre Dame L. Rev. 79, 117 (1995).
[8] Id. (coining the term).
[9] Jack M. Balkin, Free Speech and Hostile Environments, 99 Colum. L. Rev. 2295, 2298 (1999).
[10] Reno v. American Civil Liberties Union, 521 U.S. 844, 880 (1997).
[11] See Ryan Gallagher, Sandvine Pulls Back From Russia as US, EU Tighten Control on Technology It Sells, Bloomberg (June 3, 2022), https://www.bloomberg.com/news/articles/2022-06-03/sandvine-pulls-back-from-russia-as-us-eu-tighten-control-on-technology-it-sells?leadSource=uverify%20wall (explaining how the Egyptian government utilizes monitoring tools sold by Sandvine to censor the internet); see also Joyce Lau, Who Are the Chinese Trolls of the ‘50 Cent Army’? Vox (Oct. 7, 2016, 2:50 AM), https://www.voanews.com/a/who-is-that-chinese-troll/3540663.html.
[12] Section 230 as First Amendment Rule, 131 Harv. L. Rev. 2027, 2046–47 (2018).
[13] See, e.g., Ashley Carman, Deciphering Spotify’s Ad Policy on Abortion Pills, Bloomberg News (Nov. 17, 2022, 2:30 PM), https://www.bloomberg.com/news/newsletters/2022-11-17/tracking-spotify-s-ad-policy-on-abortion-pills (describing how Spotify declined to air a healthcare non-profit’s informational advertisement involving abortion access in light of state laws outlawing abortion).
[14] See, e.g., Maggie Q. Thompson, The “Aid and Abet” Abortion Era Begins, Austin Chronicle (Dec. 16, 2022), https://www.austinchronicle.com/news/2022-12-16/the-aid-and-abet-abortion-era-begins/ (explaining how threats to enforce Tex. Health & Safety Code § 171.208 has forced speakers to “tiptoe around even providing information on abortion access, lest they be prosecuted for ‘aiding and abetting’ a procedure”).
[15] Brief of Chamber of Progress et al. as Amici Curiae in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 375037, at *21 (citing Letter from Chamber of Progress to Merrick B. Garland, U.S. Att’y Gen. at 2 (Nov. 21, 2022), https://progresschamber.org/wp-content/uploads/2022/11/Letter-to-AG-Garland-re-Gonzalez-v-Google-11-21-22.pdf).
[16] See generally id.
[17] Brief of Amici Curiae Article 19: Global Campaign for Free Expression and the International Justice Clinic at the University of California, Irvine School of Law in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 1109131, at *3 (2023).
[18] Daphne Keller, Empirical Evidence of Over-Removal by Internet Companies Under Intermediary Liability Laws: An Updated List, Ctr. Internet & Soc’y (Feb. 8, 2021), https://cyberlaw.stanford.edu/blog/2021/02/empirical-evidence-over-removal-internet-companies-under-intermediary-liability-laws; Article 19, Watching the Watchmen Content Moderation, Governance, and Freedom of Expression, 29–30 (2021); see, e.g., Paige Leskin, A Year After Tumblr’s Porn Ban, Some Users Are Still Struggling to Rebuild Their Communities and Sense of Belonging, Bus. Insider (Dec. 20, 2019), https://www.businessinsider.com/tumblr-porn-ban-nsfw-flagged-reactions-fandom-art-erotica-communities-2019-8.
[19] Brief of Amici Curiae Article 19: Global Campaign for Free Expression and the International Justice Clinic at the University of California, Irvine School of Law in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 1109131, at *3 (2023).
[20] Id.
[21] Eric Goldman & Jess Miers, Online Account Terminations/Content Removals and the Benefits of Internet Services Enforcing Their House Rules, 1 J. Free Speech L. 191, 209 (2021).
[22] Brief for the States of Tennessee and Alabama et al. as Amici Curiae in Support of Petitioners, Gonzalez v. Google LLC, 2022 WL 17640647 at *6 (2022).
[23] Gregory v. Ashcroft, 501 U.S. 452, 460 (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989)).
[24] 47 U.S.C. § 230(e)(3).
[25] Id.
[26] Brief Amicus Curiae of M. Chris Riley and Floor64, Inc. d/b/a the Copia Institute el al. in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 375041at *25 (Jan 19, 2023).
[27] Austin Vining & Sarah Matthews, Overview of Anti-SLAPP Laws,Reporters Committee (last visited Apr. 12, 2023) https://www.rcfp.org/introduction-anti-slapp-guide/ (“As of April 2022, 32 states and the District of Columbia have anti-SLAPP laws.”).
[28] Press Release, Chairman Raskin Introduces Legislation Establishing Federal Anti-SLAPP Statute to Protect First Amendment Rights (Sept. 15, 2022).
[29] Id.
[30] Taamneh Case Gave Us A Glimpse Of The Horror Websites Would Face In A Post-Section 230 World, Above The Law (Mar. 3, 2023) https://abovethelaw.com/2023/03/taamneh-case-gave-us-a-glimpse-of-the-horror-websites-would-face-in-a-post-section-230-world/
[31] See supra Section II.
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