When the Supreme Court hears a landmark case on Section 230 later in February, all eyes will be on the biggest players in tech—Meta, Google, Twitter, YouTube.
A legal provision tucked into the Communications Decency Act, Section 230 has provided the foundation for Big Tech’s explosive growth, protecting social platforms from lawsuits over harmful user-generated content while giving them leeway to remove posts at their discretion (though they are still required to take down illegal content, such as child pornography, if they become aware of its existence). The case might have a range of outcomes; if Section 230 is repealed or reinterpreted, these companies may be forced to transform their approach to moderating content and to overhaul their platform architectures in the process.
But another big issue is at stake that has received much less attention: depending on the outcome of the case, individual users of sites may suddenly be liable for run-of-the-mill content moderation. Many sites rely on users for community moderation to edit, shape, remove, and promote other users’ content online—think Reddit’s upvote, or changes to a Wikipedia page. What might happen if those users were forced to take on legal risk every time they made a content decision?
In short, the court could change Section 230 in ways that won’t just impact big platforms; smaller sites like Reddit and Wikipedia that rely on community moderation will be hit too, warns Emma Llansó, director of the Center for Democracy and Technology’s Free Expression Project. “It would be an enormous loss to online speech communities if suddenly it got really risky for mods themselves to do their work,” she says.
In an amicus brief filed in January, lawyers for Reddit argued that its signature upvote/downvote feature is at risk in Gonzalez v. Google, the case that will reexamine the application of Section 230. Users “directly determine what content gets promoted or becomes less visible by using Reddit’s innovative ‘upvote’ and ‘downvote’ features,” the brief reads. “All of those activities are protected by Section 230, which Congress crafted to immunize Internet ‘users,’ not just platforms.”
At the heart of Gonzalez is the question of whether the “recommendation” of content is different from the display of content; this is widely understood to have broad implications for recommendation algorithms that power platforms like Facebook, YouTube, and TikTok. But it could also have an impact on users’ rights to like and promote content in forums where they act as community moderators and effectively boost some content over other content.
Reddit is questioning where user preferences fit, either directly or indirectly, into the interpretation of “recommendation.” “The danger is that you and I, when we use the internet, we do a lot of things that are short of actually creating the content,” says Ben Lee, Reddit’s general counsel. “We’re seeing other people’s content, and then we’re interacting with it. At what point are we ourselves, because of what we did, recommending that content?”
Reddit currently has 50 million active daily users, according to its amicus brief, and the site sorts its content according to whether users upvote or downvote posts and comments in a discussion thread. Though it does employ recommendation algorithms to help new users find discussions they might be interested in, much of its content recommendation system relies on these community-powered votes. As a result, a change to community moderation would likely drastically change how the site works.
“Can we [users] be dragged into a lawsuit, even a well-meaning lawsuit, just because we put a two-star review for a restaurant, just because like we clicked downvote or upvote on that one post, just because we decided to help volunteer for our community and start taking out posts or adding in posts?” Lee asks. “Are [these actions] enough for us to suddenly become liable for something?”
An “existential threat” to smaller platforms
Lee points to a case in Reddit’s recent history. In 2019, in the subreddit r/Screenwriting, users started discussing screenwriting competitions they thought might be scams. The operator of those alleged scams went on to sue the moderator of r/Screenwriting for pinning and commenting on the posts, thus prioritizing that content. The Superior Court of California in LA County excused the moderator from the lawsuit, which Reddit says was due to Section 230 protection. Lee is concerned that a different interpretation of Section 230 could leave moderators, like the one in r/Screenwriting, significantly more vulnerable to similar lawsuits in the future.
“The reality is every Reddit user plays a role in deciding what content appears on the platform,” says Lee. “In that sense, weakening 230 can unintentionally increase liability for everyday people.”
Llansó agrees that Section 230 explicitly protects the users of platforms, as well as the companies that host them.
“Community moderation is often some of the most effective [online moderation] because it has people who are invested,” she says. “It’s often … people who have context and understand what people in their community do and don’t want to see.”
Wikimedia, the foundation that created Wikipedia, is also worried that a new interpretation of Section 230 might usher in a future in which volunteer editors can be taken to court for how they deal with user-generated content. All the information on Wikipedia is generated, fact-checked, edited, and organized by volunteers, making the site particularly vulnerable to changes in liability afforded by Section 230.
“Without Section 230, Wikipedia could not exist,” says Jacob Rogers, associate general counsel at the Wikimedia Foundation. He says the community of volunteers that manages content on Wikipedia “designs content moderation policies and processes that reflect the nuances of sharing free knowledge with the world. Alterations to Section 230 would jeopardize this process by centralizing content moderation further, eliminating communal voices, and reducing freedom of speech.”
In its own brief to the Supreme Court, Wikimedia warned that changes to liability will leave smaller technology companies unable to compete with the bigger companies that can afford to fight a host of lawsuits. “The costs of defending suits challenging the content hosted on Wikimedia Foundation’s sites would pose existential threats to the organization,” lawyers for the foundation wrote.
Lee echoes this point, noting that Reddit is “committed to maintaining the integrity of our platform regardless of the legal landscape,” but that Section 230 protects smaller internet companies that don’t have large litigation budgets, and any changes to the law would “make it harder for platforms and users to moderate in good faith.”
To be sure, not all experts think the scenarios laid out by Reddit and Wikimedia are the most likely. “This could be a bit of a mess, but [tech companies] almost always say that this is going to destroy the internet,” says Hany Farid, professor of engineering and information at the University of California, Berkeley.
Farid supports increasing liability related to content moderation and argues that the harms of targeted, data-driven recommendations online justify some of the risks that come with a ruling against Google in the Gonzalez case. “It is true that Reddit has a different model for content moderation, but what they aren’t telling you is that some communities are moderated by and populated by incels, white supremacists, racists, election deniers, covid deniers, etc.,” he says.
Brandie Nonnecke, founding director at the CITRIS Policy Lab, a social media and democracy research organization at the University of California, Berkeley, emphasizes a common viewpoint among experts: that regulation to curb the harms of online content is needed but should be established legislatively, rather than through a Supreme Court decision that could result in broad unintended consequences, such as those outlined by Reddit and Wikimedia.
“We all agree that we don’t want recommender systems to be spreading harmful content,” Nonnecke says, “but trying to address it by changing Section 230 in this very fundamental way is like a surgeon using a chain saw instead of a scalpel.”