Courthouse Steps Decision: Gonzalez v. Google & Twitter, Inc. v. Taamneh

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On Thursday, May 18, 2023, the Supreme Court issued opinions in Gonzalez v. Google and Twitter v. Taamneh. In the Twitter case, the Court unanimously reversed the Ninth Circuit and held that plaintiffs “failed to state a claim under [18 U.S.C.] §2333(d)(2).” Justice Thomas wrote for the Court and Justice Jackson issued a concurring opinion. In Gonzalez, the Court issued a per curiam opinion vacating and remanding the case to the Ninth Circuit for reconsideration in light of the Twitter holding.

The Gonzalez and Twitter cases were of great interest to some Court watchers because of their potential ramifications for Section 230 and social media platforms’ liability for bad outcomes connected to hosted content. Please join us as Erik Jaffe discusses the Court’s opinions and what comes next.


Erik Jaffe, Partner, Schaerr | Jaffe LLP


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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I’m an Assistant Director of Practice Groups with The Federalist Society. Today we’re excited to host a Courthouse Steps Decision program on Gonzalez v. Google and Twitter v. Taamneh. We’re joined today by Erik Jaffe.


Erik Jaffe is a partner at Schaerr Jaffe LLP. Erik has extensive experience in appeals and has been involved in over 120 Supreme Court matters from filing cert petitions and amicus briefs to representing parties on the merits. Before starting his law practice, Erik clerked on the Supreme Court for Justice Clarence Thomas. If you’d like to learn more about Erik, his full bio is available on our website,


After Erik gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we’ll do our best to answer as many questions as we can. Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speaker and not The Federalist Society. Erik, we really appreciate you joining us today and the floor is yours. Erik, sorry, you’re on mute.


Erik Jaffe:  All right. Well, thank you and thanks for having me again and thank you all for coming to join us. And apologies for being on mute to spare you the noise of cars outside my window. So today we’re doing a twofer, Twitter v. Taamneh—and I’ll probably mispronounce that—and Gonzalez v. Google. I’ll start with the Twitter case since the Google case depends upon what happened in the Twitter case. But sort of the short spoiler is everyone thought these were big First Amendment cases, and it turns out not so much. In fact, you hear nothing of the First Amendment in either case, and you hear virtually nothing about Section 230, except for a brief dismissal of it as functionally not properly granted is the way it boils out. But let’s start with the Twitter case.


So in Twitter v. Taamneh, Twitter and others got sued for materially aiding and abetting terrorism in connection with -- in the Twitter case in connection with a particular bombing conducted by ISIS. They were claimed to aid and abet by having allowed ISIS to run videos and issue tweets and do other things. Google did the videos. Twitter allowed them to tweet out stuff that generated support for them generally but does not seem to have been particularly connected to the actual bombing that was at issue. At the end of the day though, the case comes down to how broadly or narrowly do we read the phrase, “aiding and abetting an act of international terrorism,” in the federal statutes that create a cause of action for such things.


And the short answer was the Court unanimously looked to common law standards for aiding and abetting and loosely looked to a prominent D.C. Circuit case on what it takes to be an aider and abettor in the civil context and said that what Twitter did wasn’t enough because they didn’t treat ISIS differently than they treated any other user of their platform. They didn’t favor them. They didn’t differentially promote ISIS tweets. They just applied a standard algorithm that treated ISIS like any other user. And if they were in any sense at fault, it might have been for not being more diligent in hunting down bad speech and getting rid of it. But the Court found that there was no affirmative duty to do so and that mere standing by while others misuse your platform is not sufficient to constitute aiding and abetting.


There’s a lot of analysis of the history. There’s a lot of analysis of the common law. There’s a lot of interpretation of the D.C. Circuit case, which had a very structured three-part, six-factor test about what constitutes aiding and abetting. But the short and long of it boil down to you need to actively help someone out and do so with what amounts to the intent or at least a vague purpose of helping them achieve their unlawful aims, but that simply acting as a service provider that de facto helps them but isn’t designed to help them was not enough.


And the Court comes back again and again to examples of the phone company, the mail, a taxicab. Any ordinary provider of public services is not going to be held liable because someone bad misuses their services. And I think the phone example was a recurring and, I think, important example for the Court of if every idiot with a cell phone was now your problem about how they used your cell phone, every cell phone service in the world would be subject to aiding and abetting liability for crimes and terrorism and any dozen other things. And the Court was reluctant to put that burden on global information service providers basically.


So with all of that, the Court had a variety of qualifiers that said, look, we look at it on the face of the allegations. There’s no suggestion that Twitter was trying to help them. There’s no suggestion that Twitter’s use affirmatively helped a specific act of terrorism as opposed to generally helped ISIS sort of be ISIS along with helping everyone else in the world be themselves, and that who knows, maybe on a different complaint, maybe on a more concrete nexus, things might change. But for now, this wasn’t enough.


There was one concurring statement by Justice Ketanji Brown Jackson that said I agree with everything on the understanding that different facts and different circumstances and different complaints and a different thing I had for breakfast tomorrow could change the result in a different case, emphasizing I think the largely indeterminate nature of what the Court ultimately did. But at a minimum, I think it’s fair to say that services and service providers that are neutral vis-à-vis  their bad users probably can escape liability unless Congress imposes an affirmative duty on them to hunt down and sensor their bad users.


And beyond that, what it takes to be an aider and abettor, what level of knowledge, what level of intent, what level of sympathy, what level of anything, is a wildly open question subject to a common law balancing test by judges who presumably need to be sensitive to not get carried away. And if that all sounds terribly vague to you, congratulations. It sounds terribly vague to the rest of the world and to me in particular.


One thing that was interesting is that a number of folks hail the Twitter decision as a great victory for free speech. And I think while certainly the result was free speech positive, I hardly think the vague and uncertain standards articulated in this decision are a great victory for free speech. They’re just better than if the result came out the other way. So be grateful for small things, yes. Thankfully they didn’t say, “Sorry, you let someone talk; now you’re liable for whatever bad things they do later.” That is a slight victory for free speech but hardly a great one.


The other disappointment was that the Court not once mentioned that these miscellaneous services, like the internet, have a free speech component, and we should be extra careful in how we expand liability for things like aiding and abetting, which are intrinsically vague even under the multifactor, multivariate, multi-balancing, multi-judge common law standard that the Court seemingly endorses. So for those of you who are a little surprised that our newly conservative Court, which seems to eschew judicial balancing in other contexts, embraced it here. Yes, there’s some surprise that they didn’t invoke other common law standards that make that balancing test less indeterminate. But in fairness to them, Congress did sort of point its finger at this D.C. Circuit case, Halberstam, and said balance away, balance away, balance away. So it’s not entirely their fault, but one wonders if at some point in the future there might be constitutional constraints on how wild judges can go with their balancing proclivities.


So that’s the Twitter case, and now we get to the Google case. If folks recall, the Twitter case just dealt with whether or not these facts could state a claim for cause of action under this terrorism statute, under this civil liability for terrorism statute. They did not raise the Section 230 immunity for internet service providers defense. That immunity was raised in the Google case. They didn’t raise it on appeal to the Supreme Court. It was an issue elsewhere, but at the Supreme Court they were just dealing with the statutory question. In Google, however, they were dealing with the Section 230 immunity for internet service providers for the speech of others.


And in this case the speech of others would have been the speech of ISIS that tried to recruit people and fundraise, that presumably Google didn’t do enough to deplatform or de-emphasize but instead repeated via their algorithms that said if you like ISIS, you might like this. If you like terrorism, you might like this. If you like fundraising appeals about bombings, you might like this. And in the Google context, again, the big question was whether or not Google treated them differently or otherwise aided and abetted them by running ISIS videos through their algorithm and by not taking them down.


But the real debate turned on whether Section 230 immunized them, whether this was the speech of others or whether Google somehow adopted this speech as their own. And in the wake of the Twitter decision, the Court punted. What they did is they basically digged the case without saying that. They functionally dismissed the 230 issue as improvidently granted in light of the outcome in Twitter. They don’t say it that way, but that’s what happened. And they say we don’t need to reach this because it doesn’t seem like Gonzalez had a viable claim in any event. So why do we have to worry about this thorny 230 question, which raises all kinds of difficult statutory and constitutional problems?


And in fairness, that’s not a crazy result. It’s a little disappointing that they didn’t just hold the Google case pending their decision in Twitter and then decide, all right, now that we held it and Twitter came out the way it is, we’re going to GV it. We’re going to remand it, and we don’t need to decide the 230 issue. So we’re not going to take it up.


I will say that I’m a little biased in this respect because I wrote a brief for a client in the Google case talking about Section 230 and some of the speech related concerns therein. And what I see in this Google functional sort of remand without reaching any of the real issues is millions of dollars of wasted client funds, not just mine but Google’s and everyone else’s and the hundred or so amicus briefs that were all talking about Section 230 that are now completely irrelevant because no one is going to reach that because it was unnecessary.


Like I said, in fairness, it’s a sensible way to not reach an issue, a very complicated issue, that you don’t have to reach. But it could have been not reached ahead of time, and then had Twitter come out differently, you would have then granted the case and taken up the 230 question. So that being said, it was sort of Google ends with a whimper rather than a bang, but it’s not like it’s a terrible result. And it’s not like it’s crazy for the Court to be sort of modest in its need to go interpret complicated statutes.


And I will say that many, many briefs, including the one I wrote, including the one for Google itself, pointed out that the Court shouldn’t overrule sort of fairly common reading of 230 of providing broad immunity given that Congress has this on its plate whenever it wants. So I view this as tossing the question back to Congress, letting that result play out and seeing if Congress takes the bait or waits for some future case so that they can blame the Supreme Court for what happened. Each branch of government is sort of saying no, this is yours; no, this is yours when the Court’s version of this, of no, this is for Congress to worry about, at least for now, is probably the more sensible and judicially restrained course of action. It’s just for all of us First Amendment folks and 230 folks out there it’s a little disappointing to have taken the mighty wind up and then whiff on the swing.


So there you go. I’m not sure there’s much else to say about that. If there are questions, I’m happy to expand, but really, like I said, for the free speech and election law folks who are listening to this, there was very little free speech involved in either of these decisions, certainly no discussion of free speech but at least a result that was sort of free speech positive if not consciously so.


Sam Fendler:  Thank you, Erik, for giving us that opening round of remarks. To the audience, we’ll now turn to your questions. So again, if you have a question, please place it into the Q&A function at the bottom of your Zoom window. We’ll have plenty of time to get to them. You talked about it a little bit, Erik. I want to go to one question from our audience, which is about Justice Jackson’s concurrence in Twitter. One of our audience members just asks what your interpretation is of that piece.


Erik Jaffe:  I interpret it to mean that she’s relying heavily upon the opinions’ various and sundry statements relating to the allegations in the complaint that they didn’t allege enough of this, they didn’t allege enough of that, they didn’t allege a tight enough nexus, they didn’t allege that Twitter meant to help them or something of that sort and that she did not want to foreclose any future complaints that might be more elaborate in its allegations. Without necessarily predetermining any of that, she just wanted to say, “Look, as a practical matter, I’m limiting our new standard to the application of the facts in this case, and I’m not really creating a standard that you can rely on very much in the future.” Which, like I said, is probably a fair interpretation of a lot of what the Court said because the Court sort of said, well, maybe this, maybe not, maybe in the future, maybe not. But as far as it goes here, no, but maybe it could be different.


There was a lot of hemming and hawing both in the decision. And I think she is emphasizing the hemming and hawing so that no one in the future feels safe relying on an excerpted sentence that this isn’t good or that isn’t good and that she’ll feel comfortable distinguishing future cases if she can find a factual distinction to hang her hat on, which, you know, I think is probably the inevitably correct reading of this decision. And I suspect the decision hems and haws as much as it does in order to get unanimity, that perhaps had it been a split decision you might have found greater certainty and stronger wording. But however, to gain unanimity, there had to be a little bit of a limitation on the scope of the opinion, which, look, unanimity is good. It provides confidence if not certainty. I’m not sure that one without the other really adds a lot of value. But we’ll see as future cases interpret this.


Sam Fendler:  Well, I want to pull on a thread that you left out there a little bit. When we were discussing this case in January and earlier and kind of hypothesizing about what the arguments would be, what the main points would be, what the Court would say, we were talking a lot about the algorithm. And then you and I got together in February to discuss the oral argument, and it seemed to be less about the algorithm and more about these thumbnails and the catalogs and, at least in Gonzalez, YouTube’s liability for creating some product.


We talked about all the justices. There was at least three distinct viewpoints on the Court of what the important pieces of the case were. You talked about the unanimity, and that’s what I really want to ask you about is do you think this is one of those cases that perhaps when the justices all got together maybe they had an influence on each other’s opinion and decided to come out this way versus another?


Erik Jaffe:  Well, you know, I think in some ways looking backwards on this our earlier discussion was about the sort of fractured theories in Google. And one might infer from that that they were having a very hard time writing a nonfractured opinion. And if we look at some of their recent opinions like in the pork case, we can appreciate that maybe they’re having a hard time getting five votes for a single theory. And maybe they were suffering a similar problem in Google, which is why they unanimously decided to duck and weave by taking the Twitter decision, getting that to be unanimous, and dodging on the Google decision. So I think that might be the way unanimity and influence on each other happened, which is we can’t get each other to agree enough on Google. So let’s all agree on this, and we can all call it a day rather than add to the confusion that’s out there already. That might have been the way they influenced each other.


But I don’t think -- I think the Twitter decision is the right outcome. And I think it would’ve been the outcome even on a more fractured sort of break out of votes. I don’t think anyone necessarily would’ve voted the other way. I think what you might’ve been able to see is five or six votes for a stronger limitation on what it means to aid and abet and then a few votes for this more multifactor, loosey goosey version still coming out in Twitter’s favor, though. So it would have been a unanimous result with a nonunanimous reasoning. But here at least we get unanimous reasoning for the let’s balance it.


And it’s hard to fault them for that given the way the statute and its findings were worded. It’s just not helpful to people who have to conform their behavior other than to say keep your algorithms and keep your treatment of different entities as neutral as humanly possible. And then we won’t blame you. But if you start picking and choosing winners and losers by some of your own criteria rather than by the criteria of what do people like, give them more what they like, then maybe you’re going to get in trouble.


Sam Fendler:  Certainly. This question from our audience came in earlier via email. And the question is given that Gonzalez was vacated, what precedential value, if any, remains of its holdings concerning Section 230? Is there any precedential value here via Gonzalez, or does potentially Gonzalez change Section 230 precedent at the Supreme Court?


Erik Jaffe:  Well, no, it doesn’t change anything at the Supreme Court. What it theoretically does, I guess, is it vacates the Ninth Circuit decision, and in remanding to the Ninth Circuit to see what to do next, presumably the Ninth Circuit can just as easily say, ”We readopt our prior opinion,” which the Court in large part endorsed and the other part didn’t bother worrying about. We add a further ruling about whether or not you’re allowed to amend. Thank you very much. End of conversation. And that will not get granted cert if all they do is readopt what they said before.


But yes, I mean, theoretically the Ninth Circuit could say, “You know what? We’re going to leave our 230 ruling vacated. We will just reject this solely on the grounds of it doesn’t state a claim, and thank you very much.” I’m not sure they can fully do that since Gonzalez did not appeal some pieces of the 230 ruling. I think they might have conceded some of it but only appealed others. But at the end of the day, it’s in the Ninth Circuit’s hands is the reality of it, and the Ninth Circuit will either readopt or not readopt its earlier decision as they see fit. And it won’t have an impact on Supreme Court 230 precedent.


Sam Fendler:  To stay on this track, do you have any hypothesis on what the Ninth Circuit does next?


Erik Jaffe:  I think the Ninth Circuit accepts the Supreme Court’s invitation to tell Gonzalez to take a hike. It reinstates its old opinion, refuses to let them amend their complaint given that they chose to stand on -- they had the opportunity to do it before and didn’t. And so it’s not at all clear to me that there’s a lot to amend. But we’ll see. The Ninth Circuit could say Twitter left open the possibility of more aggressive claims.


Look, in Twitter -- no, I don’t think they’re going to let them amend it, but it’s not like they can’t. It’s not like they won’t. My best guess is they’ll say, “Case is done. Thank you very much.” And maybe somebody else files a new claim with a better complaint. But this one I think is probably done. But we’ll see. It’s the Ninth Circuit after all. So far be it from me to predict what amendments they might find permissible.


Sam Fendler:  Sure. Concerning the future of Section 230 at the Supreme Court, we have a question here that asks, “What will be the next Section 230 case to get to the Supreme Court, and do you have any idea when that might be? Is there anything in the pipeline, anything that you can foresee?”


Erik Jaffe:  To the extent that it counts as a 230 case, I think it’s the Florida/Texas split, though I guess that’s really more of a First Amendment case. But it sort of bears upon how does 230 influence the First Amendment analysis if at all. I don’t think it does. So I guess that’s going to be the next one where people get to talk about 230 and maybe use it as a component of some other argument.


I don’t know what other ones are coming up the pipeline. I haven’t sort of been tracking them closely. I sort of am curious whether Congress gets its act together to amend parts of 230 and in particular to impose an obligation on internet platforms to take down ISIS and similar terrorism related videos under a certain set of procedures. Obviously you can’t make them sort of strictly liable for whatever’s up there because I think that would be a massive First Amendment problem.


But if you sort of said once you’re on notice that XYZ video is arguably a terrorism related video, it’s your obligation to review that and if it’s by a named terrorist group take it down, pending further review. If it promotes a named terrorist group, take it down, pending -- you know, you can imagine a more narrowly tailored rule that sort of didn’t create liability simply because you didn’t actively wipe your platform of even questionable stuff. I could see getting some passing consensus between the Dems and the Republicans on a narrow obligation like that.


You see similar restrictions on Section 230 for certain kinds of criminal sexual stuff up on the platform, CSAM materials and stuff like that. So maybe they could find some narrow thing that said you now have an affirmative duty to take it down, and once you didn’t satisfy your affirmative duty, you might indeed subject yourself to the aiding and abetting reasoning of the Twitter case. But as for what the next court case is, sorry, I don’t know. I’ll figure it out when it hits the Supreme Court news.


Sam Fendler:  When it comes up. We have a question, and you spoke about it just now a little bit, about some of the ongoing litigation about unlawful government interaction and influence over media platforms, social media. And there are some cases that we’ve spoken about. I think one is called Knight (sp). It might be at the district or circuit court level. I’m not sure. Do you think these rulings will have any impact on ongoing litigation, potentially upcoming litigation that concerns which I think is a slightly different question about government’s influence or impact on social media?


Erik Jaffe:  No, I don’t think so. Those are sort of these weird -- I am extremely sympathetic with these sort of -- the motivation behind some of these laws that sort of say, look, government shouldn’t be using power because basically it’s censor via proxy. I think that’s a serious problem. I think some of the attempts to address that problem misdirect their ire to the platforms rather than to the government itself and try to hold the platforms liable for basically being the victims of government arm twisting.


I suppose in some instances they’re the very willing victims of oh, no, don’t throw me into the briar patch kind of situation. But I don’t think that these cases have a whole lot to do with that. Obviously, some of the briefing arguably in the Google case bears upon that. But since the Supreme Court ducked and covered on that, I don’t know how to predict what they’ll do.


I think it is interesting to sort of say,”We’re going to deny you 230 immunity if you listen to the government too much.” That’s just a bizarre result and a bizarre outcome in both directions by the way. In both directions if you think Twitter would rather leave this stuff up but the government threatens them and makes them take it down and if you think the government goes and says, hey, by the way, just so you know that’s ISIS over there and Twitter’s like oh, thanks for the heads up; we don’t like ISIS; we want to take them down, how do you blame Twitter for either version of that? It strikes me as bizarre. Whereas if you want to stop the government from viewpoint based arm twisting, then stop the government from viewpoint based arm twisting.


Sam Fendler:  Erik, I want to ask you about the future of Section 230. I think certainly the Twitter case makes it obvious that the Supreme Court doesn’t want to be the arbiter right now of what Section 230 means. I guess we’ll list that as 1A. 1B is we know that Congress has been and probably will continue to have a very lively debate about the merits of Section 230, what it should impose upon these social media companies. Do you think that this case, Twitter in particular, has basically -- the Supreme Court is basically saying, listen, Congress, any question about Section 230 is going to have to be resolved by you? Do you think that’s the final say?


Erik Jaffe:  No. No, not at all. I think it is certainly the Supreme Court saying ball’s back in your court. Would you please do something with it now? But if Congress, as historically suggested, fails to act because they can’t reach agreement or because they’d rather have somebody else acting, therefore make a lot of noise but don’t reach agreement, then the Supreme Court will have to step back in. It’s going to come back up. It’s just there’s some chance that Congress could at least get rid of a subset of the difficult cases.


The other thing that’s interesting is the reasoning in the Twitter case could solve a lot of this contentious stuff in the 230 context even beyond the terrorism context if the Court generalized those principles beyond this specific statute. But I read both Justice Jackson’s concurrence and some of the qualifiers in the Court’s own opinion as saying we’re not promising that these are general principles. We’re just saying this is how we interpret this statute. And in other contexts, we might find aiding and abetting to be more expansive.


And if I had to guess, they are thinking children. What if you keep feeding kids anorexia videos? What if you promote underage child sexual content? They might be meaningfully less forgiving of the platforms’ refusal to take more action and more critical of the platforms’ recycling of such stuff to people who seem to like it, as if that were a good thing. So they’re not promising to make these general principles, which means that there’ll be more 230 problems.


This is sort of -- if there was no aiding and abetting liability, then 230’s protection for the speech of others, well, all that is is protecting you against aiding and abetting liability basically or publisher liability. So if you can narrow the underlying claims sort of more generally, then 230 becomes less of an issue. If you’re not going to extend this reasoning beyond it, then yes, 230’s going to keep coming up, keep coming up in the context of well, you republished it, so it's your speech. Well, you made it a thumbnail, so it’s your speech now. Well, you aided and abetted them, and 230 was never meant to stop aiding and abetting liability.


You’re going to see it come up again and again and again. So no, it’s not the end for the Court. Congress may help us out a little bit here and there, but I can’t imagine a comprehensive solution from Congress.


Sam Fendler:  Certainly. And Erik, I want to ask you a question about what you and I were discussing before we hopped on the call. And you spoke a little bit about it but the prominence of the Halberstam precedent in the Twitter opinion, I want to ask you about that. So the holding here is that plaintiffs failed to state a claim. And to your point, Section 230 was not implicated, and it was primarily because of this three element test that Halberstam puts out in respect to aiding and abetting. I wanted to ask were you surprised by, at least what I took to be, prominence in the opinion of the Halberstam test? Do you have any thoughts on that?


Erik Jaffe:  So my first reaction to it, my first mis-reaction to it was why in the world are we spending so much time just because Congress sort of pointed a finger at Halberstam? Normally, that would fall under legislative history. Then of course, I went back to the statute, and it’s not just legislative history. It’s literally in the findings of the statute enacted by Congress bicamerally. So it’s not the usual suspect of somebody slipped in a footnote in a report or put something on a floor speech that nobody listened to.


This is actually part of the statute as passed and hence, no, I’m not surprised at all in light of the fact that if I’m going to interpret a statute, I can interpret a statute according to intrinsic context, not simply extrinsic factors -- but intrinsic context of the statute itself saying this is what we want you to look at. And so Congress having said that’s how to read this standard, it’s as if they functionally defined aiding and abetting. It’s sort of ironic; right? The Supreme Court says nowhere in the statute does it define aiding and abetting, and yet, in the findings it sort of defines aiding and abetting at least in principle by saying this is the framework we think is important. So go look to that framework when you’re thinking about aiding and abetting. And that’s perfectly fine.


What disappointed me about the heavy emphasis on Halberstam is that it is so amorphous and variable, and you didn’t get any of the other statutory construction tools that you normally would see applied like -- the rule against lenity kind of, but it’s civil, not criminal. But there’s plenty of precedent out there that says where a concept as civil and criminal analogs, you tend to read them pretty similar. So I would’ve applied to rule of lenity. And they sort of functionally do that, saying, you know, it can’t be too broad. It can’t apply to everyone in the world. But I also would’ve looked at concerns about unconstitutional vagueness in what is a First Amendment context. And you see no discussion of that at all.


And so what I was surprised about was the exclusive focus on the Halberstam factors, rather than the fact that they focused on it heavily. I would have liked to see a few more things that said – and by the way, as you apply these variable, loosey fluid moves-up, moves-down standards – keep in mind these constraints upon how far you can go. There ought to be an outside reasonableness check on where that standard leads. And that check would be things like the First Amendment, would be things like lenity, would be things like does this make every public utility service provider an aider and abettor just because they used the mail or the phones or what have you.


Sam Fendler:  Certainly. Well, Erik, as we mentioned at the outset, there’s not too much meat on the bone in these opinions. And I think we’ve covered a lot. We’ve gotten a good amount of questions from the audience, and we’ve covered most of them. Do you have any final thoughts on this?


Erik Jaffe:  My final thoughts are I think at some point the Supreme Court will have to take this up again. It will come up in a slightly different context which may make it a little easier for them to reach consensus on how far 230 does or doesn’t reach. But I’m not sure that there are six votes or five votes for a single theory on how to deal with the 230 issues. And I suppose, if that’s the answer that we’re going to get a fractured analysis, maybe it’s good that they wait a little bit and let their thinking on this get better informed by more thinking in the lower courts, by more input from Congress.


That might not be a bad thing. It’s a disappointing thing. It maintains a level of uncertainty that the Court is largely there to resolve. But if they’re not yet in a place where they can resolve it, this is why even longstanding circuit splits sometimes continue to percolate because the Court only takes something that it can actually make better or at least clearer if not better. And this may not be that area yet, which is understandable.


Sam Fendler:  Certainly. That sounds about right to me. And we’ll have to wait and see what happens next in Congress and at the Supreme Court. Erik, on behalf of The Federalist Society, I want to thank you for the benefit of your time and your expertise today for helping us comb through these decisions and to see what really is the most important part of them. And to our audience, I want to thank you as well for joining us. We, of course, greatly appreciate your participation. Please, check out our website,, or you can follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you all once more for joining us, and we are adjourned.