Last Week’s Landmark Verdicts Against Big Tech Have a Surprise Ally at the Supreme Court |
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You may have heard about last week’s twin verdicts against Meta and YouTube, which held the tech companies liable for harms their products inflicted on young people. But the significance of these cases runs deeper: They threaten the legal architecture that has allowed Big Tech to reap trillions of dollars in profits with little risk of consequence in court. The plaintiffs pressed a shrewd theory to pierce the federal shield that these companies have relied upon for decades to escape liability, putting them on the hook for millions in damages today—and quite possibly billions more to come.
Lawyers for the companies have already vowed to appeal, insisting that they can persuade higher courts to nix these awards as a misapplication of the law. But success is far from a guarantee: The plaintiffs pursued a strategy endorsed by none other than Justice Clarence Thomas, the intellectual leader of the Supreme Court’s 6–3 conservative supermajority. Thomas’ ideas have gained considerable support throughout the lower courts in recent years. And it is entirely possible that his hostility toward Big Tech will carry the day when the plaintiffs’ theory gets tested at SCOTUS.
To see why these verdicts are social media’s “Big Tobacco moment,” as Slate’s What Next: TBD put it, it’s important to understand how Silicon Valley evaded this kind of reckoning for so long. In 1996 Congress enacted Section 230 of the Communications Decency Act, which immunized websites for content that other people post on them. This policy created the internet as we know it by fostering free expression: It allowed platforms to host a vast range of speech without worrying that they would be liable for its content. An individual can still be sued for defamation if they post something libelous on Facebook. But Facebook itself cannot be sued for merely hosting that speech thanks to the immunity provided by Section 230. That........