Does Section 230 Protect Big Social Media or American Consumers? | Opinion

When the U.S. Supreme Court hears oral arguments next week in Gonzalez v. Google, a great deal is at stake for Big Social Media (Meta, Twitter, Google, and TikTok) and, consequently, also for American consumers.

Gonzalez will decide much about the breadth of Section 230 of the Communications Decency Act, which immunizes any "provider...of an interactive computer service" from civil liability for the content of user-generated material, such as a Facebook post, a YouTube or TikTok video, or a tweet on Twitter.

That immunity is expansive on its face, but Big Social Media wants even more. The platforms want Section 230 to immunize their proprietary recommendation algorithms, too. These are the algorithms that sort, rank, and recommend user-generated content and targeted advertisements to social media consumers.

Big Social Media has been wielding Section 230 in court this way for years—and often successfully. When parents have sued Meta after their teenage daughters developed eating disorders promoted by Instagram's algorithm, or when parents have sued TikTok after their children died attempting dangerous viral challenges the app's videos promoted, Big Social Media has asserted Section 230 as a purported affirmative liability shield.

Indeed, Big Social Media invokes Section 230 not merely to rebuff these plaintiffs' claims, but to prevent courts from hearing the cases at all. Because Section 230 conveys immunity, a plaintiff cannot even try to hold Big Social Media accountable for the harm its algorithms cause to consumers.

This expansive view of Section 230 should alarm all Americans because it represents an industry asking for the unthinkable: complete immunity from civil liability for harms caused by the very core of its profit-generating business. It is comparable to Exxon seeking legal immunity for all of its drilling-related activities; or Southwest Airlines seeking immunity for all activities related to air travel; or Ford seeking immunity from claims related to the manufacture of any wheeled vehicle. In each of these hypothetical scenarios, such sweeping immunity would perversely incentivize the underlying company to seek profits no matter the human cost. What Big Social Media seeks is no different.

The US Supreme Court is seen in
The US Supreme Court is seen in Washington, DC, on January 19, 2023. STEFANI REYNOLDS/AFP via Getty Images

Under Big Social Media's self-serving reading of Section 230, social media platforms are free to engineer their algorithms for maximum profitability regardless of the tangible human consequences. These algorithms already gobble up users' personal information—including their contacts, web-browsing history, and geographic proximity to other users—to create a uniquely enticing "feed" of customized content.

This is not the same as offering consumers what they ask for or what they want to see. The algorithm shows users what they will watch.

A healthy 16-year-old girl struggling with her changing body will watch content about managing one's body weight through disordered eating. A bored 13-year-old boy will watch viral videos of deadly challenges. A suicidal teen will watch content in which other users contemplate suicide.

Because these users will watch this content, Big Social Media profits. A well-crafted algorithm recommends content that keeps a user on a social media platform longer and more frequently, regardless of whether such use is healthy or valuable to the user. And more time spent on social media means more advertising consumed, which also means more advertising purchased, and ultimately, more profit for Big Social Media.

In the last few years, executives at Big Social Media have often called for more regulation of their own industry, including in congressional testimony. Yet at the same time, Big Social Media advocates for Section 230 immunity so broad that it would protect the entire core of its profit-generating business from civil liability—on the basis of a statute passed in 1996. For context, in 1996, Motorola released the first flip phone; President Bill Clinton signed the now-defunct Line Item Veto Act; and the social media pioneer MySpace was still seven years away.

Congress never intended Section 230 to immunize Big Social Media's pernicious modern algorithms, which were unimaginable in 1996. If Big Social Media prevails in Gonzalez v. Google, Congress must act immediately to withdraw the sweeping immunity that Big Social Media cannot be trusted to wield.

Theo Wold is a visiting fellow in Tech Policy at The Heritage Foundation and the solicitor general of Idaho.

The views expressed in this article are the writer's own.