ARGUMENT ANALYSIS

“Not, like, the nine greatest experts on the internet”: Justices seem leery of broad ruling on Section 230

The Supreme Court on Tuesday debated the scope of a 27-year-old federal law that shields social-media companies from liability for content published by others. At issue in Gonzalez v. Google is whether Section 230 of the Communications Decency Act protects internet platforms when their algorithms target users and recommend someone else’s content. Google and its supporters warned in legal briefs that a ruling against them could massively reshape legal liability for tech companies across the county, but after nearly three hours of argument on Tuesday, the justices appeared wary of taking such a significant step.

The case was filed by the family of Nohemi Gonzalez, a 23-year-old American woman who was studying in Paris when she was killed in an ISIS attack there in 2015. Their lawsuit alleges that Google, which owns YouTube, violated the Antiterrorism Act’s ban on aiding and abetting terrorism by (among other things) recommending ISIS videos to users through its algorithms, thereby aiding ISIS’s recruitment.

Representing the Gonzalez family, law professor Eric Schnapper told the justices that Section 230 distinguishes between claims that seek to hold internet companies liable for content created by someone else, and claims that seek to hold internet companies liable for their own conduct. Whether an internet company’s recommendations would fall within the latter category would depend on whether they met specific criteria outlined in the text of Section 230, Schnapper contended. But he faced a barrage of questions from justices across the ideological spectrum.

Justice Clarence Thomas has written skeptically in recent years about broad immunity under Section 230, but he appeared surprisingly sympathetic to the theory on which the U.S. Court of Appeals for the 9th Circuit relied in ruling for Google below – the idea that Section 230 protects recommendations as long as the provider’s algorithm treats content on its website similarly. If the same algorithm that recommends ISIS videos based on a user’s history and interests also recommends cooking videos to someone who is interested in cooking, Thomas asked, how can Google be held responsible for those recommendations?

Justice Neil Gorsuch was skeptical, however, about what he dubbed the 9th Circuit’s “neutral tools” test. Such a test “isn’t anywhere in” Section 230, he noted, and he pushed back against the idea that algorithms are necessarily neutral. In his view, the court should send the case back to the lower court for another look. Gorsuch participated in the argument by telephone; he was feeling “a little under the weather,” according to a court spokesperson.

Representing Google, lawyer Lisa Blatt told the justices that Section 230 provides immunity from claims that treat the defendant as a publisher. “All publishing,” Blatt continued, “requires organization” – precisely what Google does with its recommendations on YouTube. “Helping users find the proverbial needle in a haystack is an existential necessity on the Internet,” Blatt concluded.

Justice Ketanji Brown Jackson was perhaps most squarely in the Gonzalez family’s corner. In Section 230, she told Blatt, Congress was trying to protect internet platforms that were blocking and screening offensive materials. However, Jackson continued, you are arguing here that Section 230 protects platforms that are promoting offensive materials. “How,” Jackson asked Blatt, “is that even conceptually consistent with what Congress intended?”

Justices Elena Kagan suggested that even if Section 230 is not well suited to address the current needs of today’s internet, such a task was best left to Congress, rather than the Supreme Court. “These are not, like, the nine greatest experts on the internet,” Kagan observed.

Kavanaugh echoed Kagan’s sentiment. He noted that Congress included broad language in Section 230, and that courts have unanimously interpreted that text to provide protection for conduct like YouTube’s. “Friend of the court” briefs supporting Google have warned of serious problems, including economic dislocation, if that understanding is upset, he observed. Is the Supreme Court, he queried, really the best institution to make these kinds of decisions?

And Justice Amy Coney Barrett suggested that the justices might not have to decide the question before them at all. On Wednesday, the justices will hear argument in Twitter v. Taamneh, a related case brought against Twitter by the family of a Jordanian citizen killed in an ISIS attack on a nightclub in Istanbul. Like the Gonzalez family, the Taamneh family filed its lawsuit under the Antiterrorism Act, but – unlike the Google case – immunity under Section 230 is not before the justices. If you lose tomorrow, Barrett asked Schnapper, who also represents the Taamneh family, do we have to reach the Section 230 question?

Schnapper refused to concede the point. Although Google could try to dismiss the case, he acknowledged, the Gonzalez family would “be entitled to try to amend the complaint … to satisfy whatever standard you establish” in the Twitter case.

A decision in the case is expected by summer.

This article was originally published at Howe on the Court.