Justices look for a narrow ruling in Google case

Section 230, which protects website content, at issue

WASHINGTON – The Supreme Court seemed hesitant Tuesday to hand down a sweeping ruling that could change the way search engines and other websites recommend content to users but the justices struggled with how to address whether Big Tech can ever be held liable when those recommendations cause harm.

At issue in the case, Gonzalez v. Google, is a controversial law known as Section 230, which has been widely interpreted as shielding websites from lawsuits for user-generated content. The question for the court is whether recommendations – such as a suggestion for the next video to watch on YouTube – are covered under that law.

The family of a 23-year-old American killed in a 2015 terrorist attack in Paris sued Google, which owns YouTube, for promoting videos dealing with the Islamic State group. But several of the justices from both ends of the ideological spectrum seemed concerned about potentially holding companies liable for all such recommendations.

“These are not, like, the nine greatest experts on the internet,” Associate Justice Elena Kagan quipped about her colleagues to the family’s attorney during nearly three hours of oral argument, underscoring a broader point that such questions might be better left to Congress. “There’s a lot of uncertainty about going the way you would have us go, in part, just because of the difficulty of drawing lines in this area.“

Even Associate Justice Clarence Thomas, who has been one of the most outspoken critics of how broadly lower courts have interpreted Section 230, seemed concerned about the potential implications of holding Big Tech liable for recommendations. If the algorithms are neutral, he said – if they’re not attempting to promote radical videos – then how could they be aiding and abetting terrorism?

“If you’re interested in cooking, you don’t want thumbnails on light jazz. It’s neutral in that sense,” Thomas said. “I don’t understand how a neutral suggestion about something that you’ve expressed interest in is aiding and abetting.”

If the case blurs the 6-3 conservative-liberal divide on the Supreme Court there may be a good reason for it: The underlying issue has shuffled traditional partisan politics. Section 230 has drawn intense criticism from former President Donald Trump over accusations that social media companies throttled conservative views. But Many Democrats agree, for different reasons, that the nearly 30-yearold law needs an update.

Associate Justice Neil Gorsuch repeatedly zeroed in on one element of the decision in favor of Google by the San Francisco-based U.S. Court of Appeals for the 9th Circuit: The idea that a “neutral” algorithm was likely to be within the law’s liability shield. Gorsuch argued that the test was unworkable and wasn’t based on the statute’s text and suggested the case could be sent back to the appeals court for further review.

That’s one potential offramp the Supreme Court could take to avoid the larger questions about Section 230. Another deals with a related case the court is scheduled to hear Wednesday: Whether Big Tech can be held liable under the Anti-Terrorism Act for “aiding and abetting” terrorism by promoting the videos at all – putting aside Section 230.

If the court decides online platforms cannot be held liable under that law, it would potentially put off for another case questions about whether and when Section 230 applies to recommendations.

A decision in the Google case is expected by June.