On Tuesday, the Supreme Court heard oral arguments of a case that has the potential to transform the internet—whether tech companies can be held liable for the content on their platforms.
But if the initial rounds of questioning were any indication, it does not seem likely that the court is ready to disrupt the status quo of Section 230, which shields platforms like YouTube and Facebook from lawsuits over the content they host. Judges on both sides of the ideological aisle expressed skepticism of the plaintiff’s arguments, and suggested several times that reform should be left to Congress. While the Supreme Court may yet upend Section 230 in the future, it seems unlikely Justices will do so through this case. That means the activists demanding the Big Tech reform will likely have to continue fighting an uphill battle.
The case in question is Gonzalez v. Google, which was filed by the family of Nohemi Gonzalez, a 23-year-old who was killed by an ISIS gunman in Paris in 2015 as part of a series of attacks that killed 130 people.
Gonzalez’s parents and the families of other deceased victims argue that YouTube played a role in the recruitment of ISIS members who participated in the attack. They argue that because YouTube suggests content to users based on their views, it pushed those susceptible to ISIS propaganda towards joining the group. And if YouTube played a role in recruitment, that would place Alphabet, which owns YouTube, in violation of U.S. laws about aiding and abetting acts of terrorism, the lawsuit argues.
Alphabet (the parent company of Google) argues it is protected by Section 230 of the Communications Decency Act (CDA), which shields tech companies from being sued over user-generated content. The company contends that Section 230 is an essential part of the company’s ability to provide useful and safe content. That stance has been supported by virtually every major tech company, from Yelp to Reddit to Meta to Tinder.
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On Tuesday, the plaintiff’s lawyer Eric Schnapper laid out his case for why YouTube’s algorithms led to the recruitment of ISIS soldiers. But the Justices responded with a slew of skepticism on a variety of grounds.
Both Justice Clarence Thomas and Justice Sonia Sotomayor voiced confusion about how a “neutral algorithm” could amount to aiding and abetting terrorists. Sotomayor questioned whether Schnapper would be able to prove that YouTube led users to certain videos with the intent of convincing them to join an extremist group.
“I guess the question is how you get yourself from a neutral algorithm to an aiding and abetting – an intent, knowledge,” she said. “There has to be some intent to aid and abet. You have to acknowledge that you’re doing this.”
Justice Samuel Alito responded more harshly to Schnapper’s line of reasoning. “I admit I’m completely confused by whatever argument you’re making at the present time,” he said.
Daniel Lyons, a professor at Boston College Law School, says that it was a particularly bad sign for the plaintiffs that Thomas cast doubt upon Schnapper’s claims. Of all of the Supreme Court Justices, Thomas has voiced the most criticism of Section 230, arguing that it gives social media companies too much power over controlling speech on their platforms.
“Thomas has seemed to suggest that he’s really interested in finding the right case to get the Supreme Court to speak on the meaning of section 230 once and for all,” Lyons says. “But it sure seemed like this was not the right case for what he was looking to do, partly because the petitioners keep shifting their theory of liability.”
Many other legal experts voiced confusion with Schnapper’s approach.
Justices, meanwhile, expressed concern about a wave of unintended consequences. Justices Elena Kagan and Brett Kavanaugh raised the idea that changing the rule would lead to an onslaught of frivolous lawsuits, with small businesses and startups getting sued constantly for content that appeared on their sites. “You are creating a world of lawsuits,” Kagan said.
And several justices questioned whether they were the right governing body to make this decision. “Isn’t that something for Congress to do? Not the court?” Kagan asked.
U.S. lawmakers have proposed dozens of bills that aim to narrow Section 230 protections. But almost none of them have gained significant traction in the House or Senate.
Read More: Washington Wants to Regulate Facebook’s Algorithm. That Might Be Unconstitutional
The Supreme Court will hear a similar lawsuit, Twitter v Taamneh, on Wednesday. That case does not focus on Section 230, but on whether social media platforms can be held liable for not removing terrorist content quickly enough. During the hearings on Tuesday, Justice Amy Coney Barrett noted that a pro-Twitter ruling on Wednesday could render Gonzalez’s case moot. In that scenario, the Court could dismiss the Gonzalez case without even having to issue a definitive legal ruling on the scope of Section 230.
Lyons, the Boston College lawyer, says that “today’s oral argument suggests that outcome is more likely now than it was before, because the Justices who seemed to be most in favor of finding in favor Gonzalez were struggling to find a way to do so,” he says. “It seems they may moot this and leave the interpretation of 230 to another day.”
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