This article appeared in The Intellectual Property Strategist, an ALM/Law Journal Newsletters publication that provides a practical source of both business and litigation tactics in the fast-changing area of intellectual property law, including litigating IP rights, patent damages, venue and infringement issues, inter partes review, trademarks on social media – and more.
The United States Supreme Court did not destroy the Internet on May 18, 2023. That day, the Court released its opinions in Gonzalez v. Google LLC, 143 S. Ct. 1191 (2023) (per curiam), and Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023). In these companion cases from the Ninth Circuit, family members of ISIS victims sued large tech companies under the Justice Against Sponsors of Terrorism Act (JASTA) for allegedly aiding and abetting foreign terrorists by providing them with platforms “for spreading extremist propaganda, raising funds, and attracting new recruits.” Complaint ¶ 12, Taamneh v. Twitter, Inc., No. 3:17-cv-4107 (N.D. Cal. July 20, 2017). Defendants in both cases asserted defenses under 47 U.S.C. § 230(c)(1) (Section 230). Section 230, generally speaking, shields online platforms from liability for otherwise actionable content users post on their sites. After the Supreme Court agreed to hear the cases on Oct. 3, 2022, worry quickly spread that the Court “could break the Internet” by weakening this liability shield. Isaac Chotiner, “Two Supreme Court Cases that Could Break the Internet,” New Yorker (Jan. 25, 2023). The Internet is still standing, but the Supreme Court’s reasoning in the 583-word Gonzalez opinion remains perplexing. Gonzalez and Taamneh are a story about how the Supreme Court “saved” the Internet from itself, and the Court needed both cases to do so.