Justices seem likely to move cautiously in Google case
Court weighs litigation that could transform internet
Supreme Court justices suggested Tuesday that they might move cautiously in their first examination of the federal law that protects internet companies from lawsuits concerning the platforms’ posting of content from third parties.
The justices heard more than 2½ hours of arguments regarding the claim by the family of an exchange students killed in an Islamic State attack that Google’s YouTube should be liable for promoting content from the group.
But justices across the ideological spectrum said they were confused by the arguments offered by the family’s lawyer and worried that the court could undermine an effort by Congress to provide immunity for the platforms decades ago, when lawmakers wanted to encourage the development of the internet.
Supreme Court Justice Elena Kagan said one could question why Congress provided such protections when passing Section 230 of the Communications Decency Act of 1996, which has been interpreted by courts to provide wide immunity from lawsuits when the sites post content from outside parties.
Justices Kagan and Brett Kavanaugh suggested a ruling on behalf of the Gonzalez family could unleash a wave of lawsuits. Justice Kavanaugh did not seem persuaded when Deputy Solicitor General Malcolm Stewart, representing the Justice Department and siding in part with the plaintiffs, said few lawsuits “would have much likelihood of prevailing.”
“Isn’t it better … to keep it the way it is,” Justice Kavanaugh replied. “For us … to put the burden on Congress to change that and they can consider the implications and make these predictive judgments?”
Courts in the past have found the Section 230 law shields tech companies from culpability over the posts, photos and videos that people share on their services.
Google argues that the law protects it from legal responsibility for the videos that its recommendation algorithms surface, and that such immunity is essential to tech companies’ ability to provide useful and safe content to their users.
The Gonzalez family’s lawyers say that applying Section 230 to algorithmic recommendations incentivizes promoting harmful content and denies victims an opportunity to seek redress when they can show those recommendations caused injuries or even death.
Justice Clarence Thomas, who has been a critic of big tech companies and the protections they received, said Tuesday that he was unsure how YouTube could be said to be aiding and abetting terrorism when its “neutral” algorithms worked the same way whether a viewer was seeking information on IS or how to make rice pilaf.
Justices Sonia Sotomayor and Kagan told Eric Schnapper, a lawyer for the Gonzalez family, that his argument about algorithmic recommendations was very broad. Because algorithms are used to respond to virtually every search, Justice Kagan said, Mr. Schnapper’s position might mean Section 230 really provides no protection at all.
Justice Ketanji Brown Jackson aggressively questioned lawyer Lisa Blatt, representing Google. Justice Jackson suggested the original intent of Section 230 was to protect tech companies from liability but also to encourage them to take down offensive content.
But Ms. Blatt refused to make concessions. She held fast to her argument that Section 230 is broad, strong and crystal-clear — platforms are not liable when dealing with any kind of third-party content, regardless of how they do or don’t promote it to their users.