U.S. Supreme Court refuses to face down violent speech in cyber town square

Eighty years ago, Walter Chaplinsky proclaimed in a public square that religion was a racket and he called a city marshal “a [expletive] racketeer and “a damned Fascist.” A riot ensued and Chaplinsky was arrested for violating a statute barring offensive or annoying speech uttered in public places. The U.S. Supreme Court was called upon to determine whether the statute was constitutional and established the so-called “fighting words” exception to the Constitutional free speech rights set forth in the First Amendment. Chaplinsky v. New Hampshire 315 U.S. 568 (1942).

The Supreme Court held that words which “by their very utterance, inflict injury or tend to incite an immediate breach of the peace” may be constrained because such words “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Three years ago, a group launched a violent attack on the U.S. Capitol, shortly after a speech by then-President Donald Trump urging followers to “fight like hell” and sending multiple tweets disparaging lawmakers after the speech. Although these words seem clearly intended to incite an immediate breach of the peace, because they were uttered on social media rather than in the public square, they likely aren’t considered to be “fighting words”.

A line of cases after Chaplinsky require face-to-face communications for the fighting words exception to apply. For example, a federal judge ruled that a student should not have been punished for a parody of his school principal posted on his MySpace internet page “because there is simply no in-person confrontation in cyber-space such that physical violence is likely to be instigated.” The U.S. Supreme Court declined to hear the school district’s appeal. Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 602 (W.D. Pa.2007), aff’d, 593 F.3d 249 (3d Cir. 2010), vacated, 2010 U.S. App. LEXIS 7362 (Apr. 9, 2010), cert denied, sub nom Blue Mt. Sch. Dist. v. J.S. (2012) 565 U.S. 1156.

In the wake of the deadly attack on the Capitol, a furious debate broke out about Section 230. Without the immunity, would online platforms have moved sooner to shut down clearly untrue claims that the election was stolen from President Trump purportedly through voter irregularities? Those platforms clearly had the tools to do so. Section 230 includes a so-called “Good Samaritan” provision that allows online platforms to block or screen offensive material. And yet, those platforms have been extremely reluctant to identify or remove speech of the type that would be fighting words if uttered in someone’s face.

The U.S. Supreme Court had an opportunity to set some boundaries on violent speech on social media earlier this month, but instead it dodged the issue. The justices were considering two lawsuits in which families of terrorist attack victims said Twitter and Google should be held liable for aiding and abetting ISIS, leading to their relatives’ deaths.

In Twitter Inc. v. Taamneh, 598 U.S. ____ (2023) the family of Nawras Alassaf sued Twitter after Alassaf and 38 other people were killed in an ISIS attack on an Istanbul nightclub. Alassaf’s family accused Twitter of failing to take enough enforcement action against the terrorist group. In a similar case, Gonzalez v. Google, 598 U.S. ____ (2023) a family of U.S. citizen Nohemi Gonzalez sued YouTube after Gonzalez was killed during an 2015 ISIS attack on a Paris café.

It is worth noting that Section 230 does not provide complete immunity for harmful speech on social media. The statute has been amended to designate some types of speech for which electronic platforms may be held liable, including child pornography, violation of federal criminal laws, and promoting sex trafficking and prostitution. 47 U.S.C §230 (e)(1), (e)(5).

Now that the U.S. Supreme Court has dodged the issue, Congress can and should eliminate Section 230 immunity for violent speech. In 2021, Congress tried unsuccessfully to revise Section 230 with the Safeguarding Against Fraud, Exploitation, Threats, Extremism and Consumer Harms Act. The legislation would have eliminated immunity under Section 230 for speech on social media platforms that enabled cyber stalking, harassment, wrongful death and discrimination. The bill would have allowed social media companies to use Section 230 as an affirmative defense for lawsuits against them for such speech carried on their platforms.

Rather than trying to identify specific categories of speech for which immunity should be eliminated, Congress should pass legislation expressly extending the “fighting words” doctrine to speech in cyberspace. That doctrine has worked reasonably well for eighty years to allow sensible restrictions on violent speech in town squares. Why not apply the same doctrine to the cyber town square?