The Supreme Court heard oral arguments in the first of two Big Tech-related cases this week that have the potential to upend how online platforms handle content moderation and free speech.
Arguments heard Tuesday were in a case known as Gonzalez v. Google, which focuses on whether the technology company can be sued because of its subsidiary YouTube’s algorithmic video recommendations, an argument that did not appear to sway a majority of the high court.
Plaintiffs in the case, the family of Nohemi Gonzalez, who was killed in a 2015 Islamic State attack in Paris, alleged YouTube’s targeted recommendations violated the U.S. Anti-Terrorism Act by helping radicalize viewers to promote ISIS propaganda.
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When the U.S. Court of Appeals for the 9th Circuit previously dismissed the Gonzalez suit, it relied on Section 230 of the Communications Decency Act of 1996, a federal law that protects internet companies from liability for content posted by their users.
The arguments heard Tuesday marked the first time the justices weighed the scope of the 1996 law that, if upended, could drastically change the standard for what can be posted online and whether platforms and users can be held legally liable for any content published on them.
Much of the discussion focused on whether YouTube should be open to liability when it suggests “thumbnails” of videos and if it should matter whether a “neutral” algorithm was used to highlight content to users.
Justice Clarence Thomas raised the question to the plaintiffs’ attorney, Eric Schnapper, noting that the algorithm his clients are targeting is the same one that recommends cooking videos.
“I don’t understand how a neutral suggestion about something you’ve expressed an interest in is aiding and abetting. I just don’t understand it,” said Thomas, who was later joined by Justice Sonia Sotomayor in expressing similar skepticism.
Sotomayor noted that there needs to be an inherent “intent to aid and abet” within YouTube’s algorithm to bring merit to Schnapper’s claims.
“I guess the question is, how do you get yourself from a neutral algorithm to an aiding and abetting — an intent, knowledge,” Sotomayor added.
Liberal Justice Elena Kagan and conservative Justice Brett Kavanaugh were the most prominent voices on Tuesday, openly questioning whether the high court was the correct venue to address the scope of Section 230.
“These are not the nine greatest experts on the internet,” Kagan said of the Supreme Court’s members, prompting laughter from guests attending the arguments.
“Isn’t it better to keep it the way it is for us and Congress? To put the burden on Congress to change that,” Kavanaugh said of Section 230, adding, “They can consider the implications and make these predictive judgments.”
Kavanaugh later turned their discussion to focus on several friend-of-the-court briefs they received that warned of widespread online disruptions if the court rules for Gonzalez.
“Lawsuits will be nonstop,” Kavanaugh said, pressing on similar concerns Kagan raised.
U.S. Deputy Solicitor General Malcolm Stewart, who argued that Section 230 should not protect a website’s targeted recommendations of content, agreed that “there would be lots of lawsuits” but contended many of them would likely struggle to prevail. Still, Kavanaugh and Chief Justice John Roberts took issue with the premise that there would be an influx of lawsuits if the plaintiffs prevailed.
In the final hour of oral arguments, Google’s attorney Lisa Blatt explained why Section 230 C1 formed the internet as it is today.
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” Blatt said, quoting C1 from Section 230.
Conservative Justice Samuel Alito asked Blatt if Google would “collapse and the internet be destroyed” if there’s any liability for not removing content that an online platform “knows” to be defamatory.
Blatt contended she thinks Google would be able to survive given its size but that she believed “every other” online platform could be susceptible because “they’re not as big as Google.”
Friend-of-the-court filings by Yelp, Microsoft, Craigslist, and other large technology companies suggested that a ruling against Section 230 could also affect anything else on the web that might be construed as making a recommendation to users.
But the response from the justices on Tuesday suggests they might not consider Gonzalez to be an appropriate vessel to address complaints from both the Left and Right about Section 230.
Both President Joe Biden and former President Donald Trump have called on repeals of Section 230, albeit for different reasons. Democrats say Big Tech needs to toughen its stance on hateful content and disinformation, while Republicans argue such companies remove too much content and censor conservative voices.
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The Supreme Court will hear arguments in a case with similar parallels on Wednesday in Twitter v. Taamneh, which focuses on analyzing the scope of online platforms’ responsibilities under the Anti-Terrorism Act and whether Twitter or other social media can be held liable against claims that such platforms assisted with an act of terrorism.
Justices are also expected to release one or more opinions on previously argued cases from this term on Wednesday. Decisions in both Big Tech cases are not expected until the summer.
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