The Supreme Court tossed out a billion-dollar verdict against an internet service provider (ISP) on Wednesday, in a closely watched case that could have severely damaged many Americans\u2019 access to the internet<\/a> if it had gone the other way.<\/p>\n<\/div>\n Wednesday\u2019s decision in Cox Communications v. Sony Music Entertainment<\/em><\/a> is part of a broader pattern. It is one of a handful of recent Supreme Court cases that threatened to break the internet<\/a> \u2014 or, at least, to fundamentally harm its ability to function as it has for decades. In each case, the justices took a cautious and libertarian approach. And they\u2019ve often done so by lopsided margins. All nine justices joined the result in Cox<\/em>, although Justices Sonia Sotomayor and Ketanji Brown Jackson criticized some of the nuances of Justice Clarence Thomas\u2019s majority opinion.<\/p>\n<\/div>\n Some members of the Court have said explicitly that this wary approach stems from a fear that they do not understand the internet well enough to oversee it. As Justice Elena Kagan said in a 2022 oral argument, \u201cwe really don\u2019t know about these things. You know, these are not like the nine greatest experts on the internet<\/a>.\u201d<\/p>\n<\/div>\n Thomas\u2019s opinion in Cox<\/em><\/a> does a fine job of articulating why this case could have upended millions of Americans\u2019 ability to get online. The plaintiffs were major music companies who, in Thomas\u2019s words, have \u201cstruggled to protect their copyrights in the age of online music sharing.\u201d It is very easy to pirate copyrighted music online. And the music industry has fought online piracy with mixed success since the Napster Wars of the late 1990s<\/a>.<\/p>\n<\/div>\n Before bringing the Cox<\/em> lawsuit, the music company plaintiffs used software that allowed them to \u201cdetect when copyrighted works are illegally uploaded or downloaded and trace the infringing activity to a particular IP address,\u201d an identification number assigned to online devices. The software informed ISPs when a user at a particular IP address was potentially violating copyright law. After the music companies decided that Cox Communications, the primary defendant in Cox<\/em>, was not doing enough to cut off these users\u2019 internet access, they sued.<\/p>\n<\/div>\n Two practical problems arose from this lawsuit. One is that, as Thomas writes, \u201cmany users can share a particular IP address\u201d \u2014 such as in a household, coffee shop, hospital, or college dorm. Thus, if Cox had cut off a customer\u2019s internet access whenever someone using that client\u2019s IP address downloaded something illegally, it would also wind up shutting off internet access for dozens or even thousands of innocent people.<\/p>\n<\/div>\n Imagine, for example, a high-rise college dormitory where just one student illegally downloads the latest Taylor Swift album. That student might share an IP address with everyone else in that building.<\/p>\n<\/div>\n The other reason the Cox<\/em> case could have fundamentally changed how people get online is that the monetary penalties for violating federal copyright law are often astronomical. Again, the plaintiffs in Cox<\/em> won a billion-dollar verdict in the trial court<\/a>. If these plaintiffs had prevailed in front of the Supreme Court, ISPs would likely have been forced into draconian crackdowns on any customer that allowed any internet users to pirate music online \u2014 because the costs of failing to do so would be catastrophic.<\/p>\n<\/div>\n But that won\u2019t happen. After Cox<\/em>, college students, hospital patients, and hotel guests across the country can rest assured that they will not lose internet access just because someone down the hall illegally downloads \u201cThe Fate of Ophelia.\u201d Thomas\u2019s decision does not simply reject the music industry\u2019s suit against Cox<\/em>, it nukes it from orbit.<\/p>\n<\/div>\n Cox<\/em>, moreover, is the most<\/a> recent<\/a> of at least three decisions where the Court showed similarly broad skepticism of lawsuits or statutes seeking to regulate the internet.<\/p>\n<\/div>\n The most striking thing about Thomas\u2019s majority opinion in Cox<\/em> is its breadth. Cox<\/em> does not simply reject this one lawsuit, it cuts off a wide swath of copyright suits against internet service providers.<\/p>\n<\/div>\n Thomas argues that, in order to prevail in Cox<\/em>, the music industry plaintiffs would have needed to show that Cox \u201cintended\u201d for its customers to use its service for copyright infringement. To overcome this hurdle, the plaintiffs would have needed to show either that internet service providers \u201cpromoted and marketed their [service] as a tool to infringe copyrights\u201d or that the only viable use of the internet is to illegally download copyrighted music.<\/p>\n<\/div>\n Thomas also adds that the mere fact that Cox may have known that some of its users were illegally pirating copyrighted material is not enough to hold them liable for that activity.<\/p>\n<\/div>\n As a legal matter, this very broad holding is dubious. As Sotomayor argues in a separate opinion, Congress enacted a law in 1998 which creates a safe harbor<\/a> for some ISPs that are sued for copyright infringement by their customers. Under that 1998 law, the lawsuit fails if the ISP \u201cadopted and reasonably implemented\u201d a system to terminate repeat offenders of federal copyright law.<\/p>\n<\/div>\n The fact that this safe harbor exists suggests that Congress believed that ISPs which do not comply with its terms may be sued. But Thomas\u2019s opinion cuts off many lawsuits against defendants who do not comply with the safe harbor provision.<\/p>\n<\/div>\n Still, while lawyers can quibble about whether Thomas or Sotomayor have the best reading of federal law, Thomas\u2019s opinion was joined by a total of seven justices. And it is consistent with the Court\u2019s previous decisions seeking to protect the internet from lawsuits and statutes that could undermine its ability to function.<\/p>\n<\/div>\n In Twitter v. Taamneh<\/em><\/a> (2023), a unanimous Supreme Court rejected a lawsuit seeking to hold social media companies liable for overseas terrorist activity<\/a>. Twitter<\/em> arose out of a federal law permitting suits against anyone \u201cwho aids and abets, by knowingly providing substantial assistance\u201d to certain acts of \u201cinternational terrorism.\u201d The plaintiffs in Twitter<\/em> claimed that social media companies were liable for an ISIS attack that killed 39 people in Istanbul, because ISIS used those companies\u2019 platforms to post recruitment videos and other content.<\/p>\n<\/div>\n Thomas also wrote the majority opinion in Twitter<\/em>, and his opinion in that case mirrors the Cox<\/em> decision\u2019s view that internet companies generally should not be held responsible for bad actors who use their products. \u201cOrdinary merchants,\u201d Thomas wrote in Twitter<\/em>, typically should not \u201cbecome liable for any misuse of their goods and services<\/a>, no matter how attenuated their relationship with the wrongdoer.\u201d<\/p>\n<\/div>\n Indeed, several key justices are so protective of the internet \u2014 or, at least, so cautious about interfering with it \u2014 that they\u2019ve taken a libertarian approach to internet companies even when their own political party wants to control online discourse.<\/p>\n<\/div>\n In Moody v. Netchoice<\/em><\/a> (2024) the Court considered two state laws, one from Texas and one from Florida, that sought to force social media companies to publish conservative and Republican voices<\/a> that those companies had allegedly banned or otherwise suppressed. As Texas\u2019s Republican Gov. Greg Abbott said of his state\u2019s law, it was enacted to stop a supposedly \u201cdangerous movement by social media companies to silence conservative viewpoints and ideas.\u201d<\/p>\n<\/div>\n Both laws were blatantly unconstitutional. The First Amendment does not permit the government to force Twitter or Facebook to unban someone for the same reason the government cannot force a newspaper to publish op-eds disagreeing with its regular columnists. As the Court held in Miami Herald Publishing Co. v. Tornillo<\/em><\/a> (1974), media outlets have an absolute right to determine \u201cthe choice of material\u201d that they publish.<\/p>\n<\/div>\n After Moody<\/em> reached the Supreme Court, however, the justices uncovered a procedural flaw in the plaintiffs\u2019 case that should have required them to send the case back down to the lower courts without weighing in on whether the two state laws are constitutional. Yet, while the Court did send the case back down, it did so with a very pointed warning that the US Court of Appeals for the Fifth Circuit, which had backed Texas\u2019s law, \u201cwas wrong.\u201d<\/p>\n<\/div>\n Six justices, including three Republicans, joined a majority opinion leaving no doubt that the Texas and Florida laws violate the First Amendment. They protected the sanctity of the internet, even when it was procedurally improper for them to do so.<\/p>\n<\/div>\n One reason why the Court\u2019s hands-off-the-internet approach in Cox<\/em>, Twitter<\/em>, and Moody<\/em> is so remarkable is that the Supreme Court\u2019s current majority rarely shows such restraint in other cases, at least when those cases have high partisan or ideological stakes.<\/p>\n<\/div>\n In two recent decisions \u2014 Mahmoud v. Taylor<\/em><\/a> (2025) and Mirabelli v. Bonta<\/em><\/a> (2026) \u2014 for example, the Court\u2019s Republican majority imposed onerous new burdens on public schools, which appear to be designed to prevent those schools from teaching a pro-LGBTQ viewpoint to students whose parents find gay or trans people objectionable. I\u2019ve previously<\/a> explained<\/a> why public schools will struggle to comply with Mahmoud<\/em> and Mirabelli<\/em>, and why many might find compliance impossible. Neither opinion showed even a hint of the caution that the Court displayed in Cox<\/em> and similar cases.<\/p>\n<\/div>\n Similarly, in Medina v. Planned Parenthood<\/em><\/a> (2025), the Court handed down a decision that is likely to render much of federal Medicaid law unenforceable. If taken seriously, Medina<\/em> overrules decades of Supreme Court decisions<\/a> shaping the rights of about 76 million Medicaid patients, including a decision the Court handed down as recently as 2023<\/a> \u2014 though it remains to be seen if the Court\u2019s Republican majority will apply Medina<\/em>\u2019s new rule in a case that doesn\u2019t involve an abortion provider.<\/p>\n<\/div>\nThe Supreme Court is an internet-based company\u2019s best friend<\/h2>\n<\/p>\n<\/div>\n
This Supreme Court isn\u2019t normally so protective of institutions<\/h2>\n<\/p>\n<\/div>\n