People line up outside the US Supreme Court building in Washington, DC on February 21, 2023 to hear oral arguments in two cases testing Section 230, a law that gives technology companies legal protection from what their users post on Internet.
Jim Watson | AFP | Getty Images
On Tuesday, Supreme Court justices expressed hesitation about overturning a key legal shield that protects tech companies from liability for their users’ messages and how the companies moderate messages on their sites.
Justices across the ideological spectrum expressed concern about the delicate balance struck by Section 230 of the Media Decency Act when they ruled on the landmark case of Gonzalez v. Googleeven though some have suggested that a narrower interpretation of the liability shield may sometimes make sense.
The current case was brought by the family of an American who died during the terrorist attack in Paris in 2015. The applicants argue that Google, through its YouTube subsidiary, violated the Anti-Terrorism Act by aiding and abetting ISIS because it promoted the group’s videos through its recommendation algorithm. Lower courts have sided with Google, saying Section 230 protects the company from liability for third-party content posted on its service.
The petitioners argue that YouTube’s guidelines are actually the company’s own speech, which would fall outside the liability shield.
But the judges had a hard time figuring out where the plaintiff’s attorney, Eric Schnapper, drew the line on what counts as content created by YouTube itself.
Conservative Justice Samuel Alito once said he was “completely baffled” by the distinction Schnapper tried to draw between YouTube’s own speech and that of a third party.
Schnapper repeatedly pointed to the thumbnail that YouTube shows users to indicate what video will be next, or suggested based on their views. He said the thumbnail was created jointly by YouTube and a third party that posted the video, in this case ISIS, because YouTube provides the URL.
But several justices questioned whether that argument would apply to any attempt to organize information from the Internet, including a search results page. They expressed concern that such a broad interpretation could have far-reaching consequences that the Court is not prepared to foresee.
Conservative Justice Brett Cavanaugh noted that courts have consistently applied Section 230 since its creation in the 1990s, and pointed to amici briefs that warned that revising that interpretation would have huge economic consequences for many businesses as well as their workers , consumers and investors. Cavanaugh said these are “serious issues” that Congress could consider when it tries to rewrite the statute. But the Supreme Court, he said, “is not in a position to answer for this.”
“You’re asking us right now and you’re making a very clear point: ‘Don’t worry, it’s really not going to be that bad,'” Cavanaugh told Deputy U.S. Solicitor General Malcolm Stewart, who argued that the Supreme Court should send the case back to a lower court. instance. “I don’t know that that’s the case at all. And I don’t know how we can quantify that in any sense.”
When Stewart suggested that Congress could amend 230 to accommodate changes in the modern reality of the Internet, Chief Justice John Roberts dissented, noting that “friends suggest that if we wait for Congress to make that choice, the Internet will be sunk. “
Even conservative Justice Clarence Thomas, who has openly written that the Court should take up the Section 230 case, seemed skeptical of the petitioners’ line. Thomas noted that YouTube uses the same algorithm to recommend ISIS videos to users interested in that content as it does to promote cooking videos to those interested in the topic. Furthermore, he said he views these as suggestions, not affirmative recommendations.
“I don’t see how a neutral suggestion about what you expressed interest in is aiding and abetting,” Thomas said.
The judges also had tough questions for Google, wondering whether liability protections are as broad as the tech industry would have you believe. Liberal Justice Ketanji Brown Jackson, for example, spoke at length with Lisa Blatt, a lawyer who argued on Google’s behalf, about whether YouTube would be protected by Section 230 in a hypothetical scenario where the company promoted an ISIS video on its home page in a box labeled “selected “.
Blatt said that publishing the home page is an integral part of the website’s operation, so should be covered by Section 230, and that organization is a core function of platforms, so if subject headings can’t be covered, the statute basically becomes “dead letter”.
Liberal Justice Elena Kagan suggested that you don’t have to fully agree with Google’s assessment of the implications of Amendment 230 to fear the potential consequences.
“I don’t have to buy all of Ms. Blatt’s ‘sky is falling’ words to agree that ‘boy, there’s a lot of uncertainty in going the way you want,’ partly because of the difficulty of drawing lines in this area.” , Kagan told Schnapper, adding that the job might be better suited for Congress.
“We’re a court, we really don’t know about these things,” Kagan said. “They’re not like the nine greatest experts on the Internet.”
Supporters of Article 230 are optimistic
At a news conference called by the Chamber of Progress, a left-of-center industry group backed by Google and other major tech platforms, several experts who favor Google’s success in the case said they were more optimistic after the arguments than before.
Kathy Gelis is an independent attorney in the San Francisco Bay Area who filed the lawsuit on behalf of the person who runs the Mastodon server, as well as the Google-funded startup advocacy group and digital think tank. She told CNBC that rabbits like hers and others had a big impact on the court.
“It seems like, if nothing else, not only me, but my other colleagues saved the day, because it was clear that the judges took a lot of those lessons to heart,” Gelis said.
“And overall, it appeared that there wasn’t a lot of appetite to turn the Internet around, especially in a case that I think looked pretty weak to them from a plaintiff’s perspective.”
Still, Eric Goldman, a professor at Santa Clara University’s law school, said that while he feels more optimistic about the outcome of the Gonzalez case, he remains concerned about the future of Section 230.
“I’m still amazed that this opinion would put all of us in an unexpected situation,” Goldman said.
On Wednesday, the justices will hear a similar case with a different legal issue.
In Twitter v. Taamneh, the justices will similarly consider whether Twitter can be held liable for aiding and abetting under the Anti-Terrorism Act. But the focus in this case is that Twitter’s decision to routinely remove terrorist messages means it knew about such messages on its platform and should have taken more aggressive action against them.
Conservative Justice Amy Coney Barrett asked Schnapper how the ruling in the case might affect Google’s case. Schnapper said if the court rules against Taamne, Gonzalez’s attorney should be given the opportunity to change his arguments to meet the standards set in the other case.
SEE: Should social media companies be held liable for user content? Effect of amendment of section 230