The Supreme Court's Internet problem | The Gray Area

TL;DR

The Supreme Court is unusually cautious about regulating the internet despite being activist everywhere else, largely because its conservative justices formed views before internet politics existed.

Key Points

• 1.The Supreme Court has taken a strikingly hands-off approach to the internet. Despite overturning major precedents on abortion, schools, and independent agencies, the court has consistently ruled against aggressive legal theories that would heavily regulate or burden internet companies.
• 2.Cox Communications v. Sony Music is the most recent example of this restraint. A jury awarded the music industry $1 billion against Cox for not cutting off customers who pirated music; the Supreme Court unanimously reversed, ruling liability requires proof the ISP intended or marketed piracy.
• 3.The music industry's IP-address tracking method was dangerously imprecise. A single IP address can cover an entire hospital, dorm, or office building — meaning one infringer could have caused all users at that location to lose internet access under the industry's proposed standard.
• 4.Twitter v. Taamneh established that platforms aren't liable for terrorist use of their services. Families of ISIS attack victims in Istanbul argued Twitter, YouTube, and Facebook enabled terrorism; the court unanimously rejected this, comparing it to suing Ford because someone used a truck to commit murder.
• 5.The 'digital addiction' theory is an emerging legal challenge the court will likely face. A California lawsuit argues that platforms like TikTok and YouTube design algorithms to hijack dopamine systems, making them liable like cigarette companies — a more legally plausible theory that could fundamentally remake the internet.
• 6.Conservative justices are cautious on internet issues because their views predate the Twitter wars. Justices like Kavanaugh and Barrett were appointed before internet censorship became a Republican rallying point; their First Amendment instincts still reflect pre-MAGA 2016-era Republican libertarianism.
• 7.The Republican shift on free speech was triggered by corporate content moderation decisions. Social media bans were driven by advertiser pressure and customer preferences — pure free-market capitalism — but the banned users organized politically, forming what Milheiser calls a 'coalition of the shunned' that now controls the government.
• 8.Two justices have called for overturning New York Times v. Sullivan, threatening press freedom. Clarence Thomas and Neil Gorsuch want to eliminate the precedent protecting reporters from libel suits over innocent factual errors; without it, even private citizens posting on social media could face financially ruinous lawsuits over minor mistakes.
• 9.The future of the internet hinges entirely on Supreme Court appointments. Upcoming issues include age-gating social media for minors and state laws forcing media outlets to carry conservative voices; Milheiser warns that if Trump appoints more justices, internet regulation will be shaped around advancing the MAGA movement rather than neutral principles.