Justices puzzled as Supreme Court hears arguments over internet liability shield

The Supreme Court grappled with the scope of a liability shield for internet companies on Tuesday, at times expressing confusion about arguments to narrow the industry’s protections as they probed how it could impact the internet.

Their skepticism came during oral arguments in Gonzalez v. Google, a case brought by the family of U.S. citizen Nohemi Gonzalez, who was killed during an 2015 ISIS attack in Paris, for YouTube’s purported recommendations of pro-ISIS videos.

A number of the justices appeared frustrated at the arguments of Eric Schnapper, the attorney representing the Gonzalez family who argued Google should not be protected by Section 230.

“I guess I’m thoroughly confused,” liberal Justice Ketanji Brown Jackson told Schnapper.

Conservative Justice Clarence Thomas, the only justice to have previously expressed doubts about the breadth of Section 230’s protections publicly, similarly expressed confusion and in the early moments of the argument said Schnapper needed to give the justices a “clearer point.”

“These are not, like, the nine greatest experts on the internet,” liberal Justice Elena Kagan later quipped.

Section 230 is a provision of the 1996 Communications Decency Act that prevents internet companies, including giants like Google and Facebook as well as smaller services, from being held liable for content posted by third parties. But the case before the court focused particularly on if those protections should apply to how companies create and deploy algorithmic recommendation systems. 

Lisa Blatt, who represented Google, said the protections provided under Section 230 “created today’s internet” and have allowed tech companies to innovate.

Blatt argued that algorithmic recommendations are essential for companies to organize massive amounts of third-party content, and she asserted that not protecting recommendations would expose internet companies to constant litigation and run smaller firms into the ground.

Undoing Section 230 could make the internet a “’Truman Show’ vs. a horror show,” with “anodyne, cartoon-like” content or violent hate speech, Blatt said.

“And Congress would not have achieved its purpose,” she added.

When Kagan asked Blatt if Section 230 protections only apply because YouTube’s recommendation algorithm was neutral, Blatt said Section 230 would also protect algorithms developed with more nefarious purposes.

But Jackson repeatedly stressed Congress’ intent in passing Section 230, saying they did so to protect internet companies that take down third-party content in good faith.

“You’re saying the protection extends to internet platforms that are promoting offensive material. So it suggests to me that it is exactly the opposite of what Congress was trying to do in the statute,” Jackson told Blatt.

Justices also questioned whether they are the proper body to make changes to Section 230, appearing wary of the implications of narrowing the protections. 

“I take the point that there are a lot of algorithms that are not going to produce pro-ISIS content and that won’t create a problem under this statute. But maybe they’ll produce defamatory content or maybe they’ll produce content that violates some other law. And your argument can’t be limited to this one statute,” Kagan said. 

Justice Amy Coney Barrett questioned whether the court could instead send the case back to the lower courts depending on the outcome in a case set to be argued on Wednesday. 

That case, Twitter, Inc. v. Taamneh, will interpret the anti-terrorism law that the Gonzalez family believes makes Google liable in the first place. The justices could instead ask the lower court to first consider Google’s underlying liability to see if the Section 230 protections are even needed.

But despite attacks from both sides of the aisle, any changes to Section 230 are likely to happen in the court rather than Congress because Democrats and Republicans are approaching the issue from nearly opposite sides, making it more difficult for legislative change. 

Democrats have said Section 230 provides protections that allow companies to host too much misinformation or hate speech, whereas Republicans have said it protects companies from being able to censor content with an anti-conservative bias as the GOP has broadly alleged. 

Updated 2:55 p.m.