Tech Interests Turn to SCOTUS After 3rd Circuit’s TikTok Holding

The 3rd U.S. Circuit Court of Appeals last week found that TikTok’s algorithmic content promotion amounts to “expressive activity” and therefore isn’t protected activity under Communications Decency Act Section 230 (see 2408280014).

SCOTUS has never directly interpreted Section 230, but justices from Clarence Thomas to Ketanji Brown Jackson have questioned whether companies should be immune from liability when algorithms play such a central role in their business models. Experts said the momentum will result in a SCOTUS interpretation in the near future that could fundamentally alter the internet.

The National Center on Sexual Exploitation has led several legal challenges against the tech industry’s liability shield. NCOSE attorney Dani Pinter said that while courts often side with the tech industry in Section 230 cases, the 3rd Circuit’s decision is another example of a willingness to go the other way. “If the right case comes with the right facts, we’re going to get a Supreme Court decision within the next couple of years,” said Pinter. “It’s time for these platforms to face the same liability” and exercise the same degree of due diligence as other industries.

A free speech attorney with TechFreedom told us the 3rd Circuit was wrong when it claimed a platform’s First Amendment-protected speech should also be considered first-party speech under Section 230, which would eliminate companies' Section 230 immunity. The First Amendment protects a company’s right to amplify, demote or remove content, said Ari Cohn: Section 230 addresses a separate issue establishing that companies aren’t liable for the third-party content they host. The 3rd Circuit, like many Section 230 opponents, wrongly conflated the two issues, he said: “There are judges who don’t like Section 230, and they are disagreeing with the policy positions that Congress implemented when it passed Section 230.”

Cohn said he anticipates the Supreme Court taking up at least one case a year involving the First Amendment or Section 230. And while the high court punted on Section 230 in Taamneh, Gonzalez and Moody (see 2402260051 and 2407010053), it will continue to consider cases that could potentially “upend the internet.”

Pinter cited two other major cases where courts cut into the tech industry’s liability shield: the 9th Circuit’s 2008 decision in Fair Housing Council of San Fernando Valley v. Roommates.com and the U.S. District Court for the Northern District of Alabama’s ruling in Doe #1 et al. v. MG Freesites Ltd. The 9th Circuit found Roommates.com's tenant questionnaire violated anti-discrimination laws. The website, it ruled, operated as an information content provider, so it couldn’t claim Section 230 immunity. Similarly, the district court in Alabama found PornHub couldn’t claim immunity because it materially contributed to child exploitation content.

A First Amendment attorney who represents tech companies told us he expects the Supreme Court will eventually issue a significant ruling on Section 230. Larry Walters has worked on behalf of Grindr and Backpage, and his firm litigated a legal challenge against a 2018 anti-sex trafficking law, the Stop Enabling Sex Traffickers-Allow States and Victims to Fight Online Sex Trafficking (SESTA-FOSTA) Act (see 2202240065) on behalf of the Woodhull Freedom Foundation. Language in the 3rd Circuit’s decision about algorithms should be “concerning” for platforms, said Walters. The more that the courts try to chip away at the liability shield, the more it becomes an “evolving consideration.”

A First Amendment academic told us the 3rd Circuit “clearly wants the Supreme Court to take up this case and interpret Section 230.” Clay Calvert, a professor emeritus at the University of Florida and nonresident senior fellow at the American Enterprise Institute, cited the court’s footnote 13, which provides an in-depth assessment about how the TikTok decision departs from previous Section 230 rulings. “This creates a split of authority that increases the odds of the Supreme Court taking the case,” said Calvert. He noted how the 3rd Circuit relied heavily on language from the Supreme Court’s Moody decision, claiming platforms can’t have it both ways in seeking First Amendment and Section 230 protections. “The 3rd Circuit basically is saying to platforms, 'You may have won in Moody, but we're going to make you lose Section 230 protection as the price you pay for that.’”