ACLU Commends Supreme Court Decisions Allowing Free Speech Online to Flourish

The American Civil Liberties Union praises the Supreme Court’s unanimous decisions in two important digital free speech cases, Twitter v. Taamneh and Gonzalez v. Google. The ACLU and its partners filed amicus briefs in both cases urging the court to ensure online platforms are free to promote, demote, and recommend content without legal risk in order to protect political discourse, cultural development, and intellectual activity.

“With this decision, free speech online lives to fight another day,” said Patrick Toomey, deputy director of ACLU’s National Security Project. “Twitter and other apps are home to an immense amount of protected speech, and it would be devastating if those platforms resorted to censorship to avoid a deluge of lawsuits over their users’ posts. Today’s decisions should be commended for recognizing that the rules we apply to the internet should foster free expression, not suppress it.”

In Twitter v. Taamneh, the plaintiffs claimed that Twitter was liable for allegedly “aiding and abetting” an attack in Istanbul by ISIS because Twitter failed to adequately block or remove content promoting terrorism — even though it had no specific knowledge that any particular post furthered a terrorist act. The court held that hosting, displaying, and recommending videos, without more, is not aiding and abetting terrorism.

As the ACLU’s amicus brief in Twitter v. Taamneh explained, if the Supreme Court allowed the 9th U.S. Circuit Court of Appeals’ startlingly broad interpretation of the Anti-Terrorism Act to stand, online intermediaries — like internet service providers, social media platforms, publishers, and other content distributors — would be forced to suppress the First Amendment-protected speech of many of their users. The brief explained that, given the vast scale of speech occurring on platforms like Twitter every day, online intermediaries would be compelled to use blunt content moderation tools that over-restrict speech by barring certain topics, speakers, or types of content in order to avoid claims that they went too far in making that information available to an interested audience. Even today, platforms frequently take down content mistakenly identified as offensive or forbidden, for example, by confusing a post about a landmark mosque with one about a terrorist group.

In Gonzalez v. Google, the court noted that in light of its decision in Twitter v. Taamneh, “little if any” of the plaintiffs’ case remained viable. It was therefore unnecessary to address the question of whether Section 230 of the Communications Decency Act immunized the platform’s recommendation algorithms. The court remanded the case to the 9th U.S. Circuit Court of Appeals to determine whether any part of the plaintiffs’ argument could move forward in light of the Twitter ruling.

Gonzalez v. Google and Twitter v. Taamneh are part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket. The Google amicus brief was filed by the ACLU of Northern California and Daphne Keller of the Stanford Cyber Policy Center, while the Twitter amicus was filed by the ACLU and the ACLU of Northern California, alongside the Center for Democracy & Technology, Electronic Frontier Foundation, Reporters Committee for Freedom of the Press, Knight First Amendment Institute at Columbia University, and R Street Institute.