Content Culpability in the Age of Algorithms: Anderson and the Future of Section 230

In 2024, in Anderson v. TikTok, Inc., the U.S. Court of Appeals for the Third Circuit held that an algorithm may become sufficiently expressive as to constitute an internet service provider’s (ISP) first-party speech. The historical context, purpose, and text underlying Section 230 suggest that Congress’s sole aim was to bar strict publisher liability for the presence of harmful third-party content on a provider’s platform. Congress did not intend to bar plaintiffs from pursuing claims under a distributor liability framework, such that ISPs acting by omission to promote third-party content they know to be causing harm may be held liable for failing to act upon learning of such harm. This Comment argues that Congress should amend the statute to clarify what liability should be imposed for ISPs that knowingly promote harmful content, or, in the absence of congressional action, the Supreme Court should resolve the existing circuit split by finding that distributor liability is not barred by Section 230.