Section 230 of the Communications Decency Act has been in the news regularly this spring amid legal battles over whether social media sites can be held liable for allegedly harming young users’ mental health. The law states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, Section 230 makes it so that sites generally can’t be held accountable for content uploaded by users, and it’s proven to be a powerful defense for sites accused of allowing dangerous information to spread unimpeded.
During the 2022-23 term, the Supreme Court heard two cases on the scope of Section 230 and declined to limit its application. In Twitter, Inc. v. Taamneh, a unanimous court held that a family’s effort to hold Twitter, Facebook, and Google liable for aiding and abetting international terrorism by failing to remove content related to ISIS was barred by Section 230. The court then sent the second case, Gonzalez v. Google LLC, on whether Google could be held liable for the spread of ISIS recruitment videos on YouTube, back to a lower court for further consideration in light of Taamneh.
Since then, the court has declined other opportunities to address the scope of this law, including in Doe v. Snap, Inc., in which the court was asked to weigh whether Snapchat was immune from a lawsuit over its design – specifically, over how sexual predators took advantage of its emphasis on vanishing photos to prey upon young users. The court denied the petition for review in July 2024, but Justice Clarence Thomas dissented from the denial in an opinion joined by Justice Neil Gorsuch. “Although the Court denies certiorari today, there will be other opportunities in the future. But, make no mistake about it—there is danger in delay,” Thomas wrote. “Social-media platforms have increasingly used §230 as a get-out-of-jail free card.”
At their private conference on Thursday, the justices will again consider whether to revisit Section 230 in a case involving Twitter (now known as X). In Doe v. X Corp., two unnamed plaintiffs seek to hold the site accountable for failing to remove child pornography, and they’ve asked the court to hold that Section 230 does not bar their claims.
The dispute began in 2020, when, according to the petition for review, sex traffickers who tricked John Doe 1 and John Doe 2 into sending them sexual content when they were young teenagers uploaded that content to Twitter. Doe 1 and his mother contacted the site and asked for it to be taken down, emphasizing that it featured underage boys and was therefore child pornography. Twitter declined to remove the content, informing Doe 1 that it “didn’t find a violation of our policies.” Finally, nine days after Doe 1 first reached out – and after an official with the Department of Homeland Security had also reached out, after being contacted by Doe 1’s mother – Twitter removed the posts.
Doe 1 and Doe 2 sued Twitter, alleging, among other things, that it had knowingly distributed child pornography and that it has failed to develop the tools needed to ensure that such content will not spread on its site. Citing Section 230, a federal district court dismissed the vast majority of the counts, concluding, as the U.S. Court of Appeals for the 9th Circuit later summarized, “that because these counts sought to treat Twitter as a publisher of third-party content—child pornography generally, and the video of Plaintiffs specifically—Twitter was immune under §230.” The 9th Circuit affirmed most of those dismissals, but held that claims related to how Twitter fields concerns about pornographic material could move forward because they address the site’s design and the company’s duty to report child pornography to the National Center for Missing and Exploited Children and “do not arise from Twitter’s role as a publisher.”
In their petition for review, the Does urge the justices to review the 9th Circuit’s ruling and allow the dismissed claims to move forward. Specifically, they contend that Section 230 does not grant immunity when a company allows “criminal content” to remain on its site even after being notified about it. Holding that this law shields companies from such lawsuits “puts §230 at war with itself,” according to the petition, because lawmakers included language in the provision to encourage sites to identify and restrict children’s access to “objectionable or inappropriate online material,” and “to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.”
In its response, X counters that the 9th Circuit applied a “settled interpretation of Section 230 … on which the digital economy has relied for nearly 30 years.” The Supreme Court should not, X continued, take the “destabilizing step” of holding that a site loses its Section 230 immunity and can be treated like a publisher of child pornography if it doesn’t move quickly enough in addressing content concerns.
Doe v. X Corp. is scheduled to be considered by the justices for the first time on Thursday.
