Expecting an overtly conservative Supreme Court to openly legislate from the bench was insane, especially when even the liberals (by judiciary standards anyway) are on the same side of the First Amendment issues in question.
It was so absolutely funny how the U.S. Supreme Court side-stepped the S230 question altogether. I have to admit that I was surprised when they decided the cases in mid-May, unlike late June when most of the high-profile decisions are released. But it was a pleasant surprise.
I'm not exaggerating when I say that the Roberts Court is the most freedom-of-edgy-speech iteration of the Court in American history. If there's any paragraph that succinctly summarizes the current Court's approach to the First Amendment, it's in
United States v. Stevens, 559 U.S. 460, a decision where the Court struck down a federal law that outlawed depictions of animal cruelty.
Stevens at 470, per Roberts CJ:
The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).
It gives me a good chuckle when I see randoms argue that certain categories of speech—like pro-suicide speech, or incel speech, or "hate speech" more generally—aren't protected by the First Amendment because they fail some sort of a moral balancing test. Well, the entire point of the Roberts Court's jurisprudence is that they give zero fucks about a moral balancing test! That's why the Court ruled the way that it did in
Brown v. Entertainment Merchants Ass'n (violent video games);
Snyder v. Phelps ("God Hates Fags" signs);
Packingham v. North Carolina (social media use by sex offenders);
Matal v. Tam ("racially disparaging" trademarks), etc.
The very premise of originalism in constitutional interpretation—and textualism in statutory interpretation—is that judges shouldn't be junior varsity legislators, inserting their own policy preferences into the law.
But this didn't stop Section 230's opponents from droning on and on, in their
amicus briefs, about how evil Big Tech was and how badly Section 230 needed to be reined in.
Four retired IDF generals somehow thought that "interrupting" the "exposure of users to inflammatory content and hate speech" would be a compelling argument to make in a U.S. court. Ditto for the
National Police Association, whose lawyers wrote that S230 needed to be reinterpreted to "help damp anti-LEO attitudes and attacks". On the other side of the political spectrum, a
crackpot law professor argued that S230 should only immunize platforms that are engaged in "Good Samaritan" conduct, such as "push[ing] down pro-eating disorders or pro-suicide results".
Did they really think that the Roberts Court would somehow be receptive to policy arguments that don't even pretend to be based on the very text of the statute?
Anyway, I don't want to get too far off-topic. Point is, I've engaged with many opponents of both SS and the incel forums over the last two years, and from what I tell, they really wanted Section 230 gone or amended. In their minds, this would've allowed them to go after the administrators and moderators of "back alley sites". When the Court failed to deliver, well, too bad for them. I think this partly contributed to the anti-SS sperging you see now.
