PHILADELPHIA – A ruling by the 3rd Circuit Court of Appeals that a lower court should not have dismissed a case against TikTok has revived concerns about the protections offered by Section 230, the so-called “First Amendment of the Internet.”
The 3rd Circuit ruled that the algorithmic recommendations on TikTok’s For You page constitute an “expressive product” that “communicates to users” that a “curated stream of videos will be of interest to them,” tech news site Ars Technica. reported.
Citing a recent Supreme Court ruling, 3rd Circuit Judge Patty Shwartz ruled that a platform’s algorithm that “reflects editorial judgments about curating the third-party speech it wants in the way it wants” is “not protected by Section 230, which only shields platforms from liability. for third-party speech, not for platforms’ own speech.”
Under Section 230, internet platforms that host and moderate user-generated content, including adult content, generally cannot be prosecuted for that content. However, Article 230 is not absolute. In 2022, digital rights advocates Evan Greer and Lia Holland from advocacy group Fight for the Future write noted“It does not provide immunity if the platform develops or creates the content, and it does not provide immunity from enforcement of federal criminal laws. But crucially, it does provide protection against criminal liability under state law.”
The plaintiffs suing TikTok argued that the platform’s For You page recommended a “Blackout Challenge” video to a child, who then attempted the stunt and died.
“This is of course terrible,” wrote Techdirt’s Mike Masnick, who regularly reports on free speech online and Section 230. “But who’s to blame?”
Masnick explained that to reach its conclusion, the 3rd Circuit had to “intentionally reject a very long list of prior case law on Section 230, misinterpret Supreme Court precedent, and (trifecta!) misinterpret Section 230 itself.” ”
“This may be one of the worst circuit court opinions I have read in a long time,” Masnick added. “It’s definitely high on the list.”
For Masnick, the decision “essentially nullifies Section 230 because of a lot of publishing activity.”
“I imagine (hope?) that TikTok will request a dress rehearsal for all judges on the circuit and that the entire Third Circuit will agree,” he wrote. “That would at least give amici an opportunity to explain how completely backward and confused this ruling is.”