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Supreme Court cautious during arguments on internet liability law

'We’re a court. We don’t know about these things. You know, these are not like the nine greatest experts on the internet,' Justice Elena Kagan said

The Supreme Court building in January.
The Supreme Court building in January. (Anna Moneymaker/Getty Images)

The Supreme Court appeared reluctant during oral arguments Tuesday to get ahead of Congress when it comes to changing the way a 1996 law gives internet companies a sweeping immunity from lawsuits.

Across more than two hours and dozens of hypotheticals about social media business practices, the justices grappled with what Congress intended nearly three decades ago with Section 230 of the Communications Decency Act — a law Congress is actively working to update.

The case, Gonzalez v. Google, is one of two this week concerning when social media companies can face lawsuits for what’s posted on their platforms. The justices are expected to issue opinions in those cases before the conclusion of the term at the end of June.

Justice Elena Kagan and other justices brought up concerns Tuesday from internet companies and other advocates who say a change would harm the digital economy because it would open those companies to an unknown number of lawsuits over how content from users is presented to other users.

“We’re a court. We don’t know about these things,” Kagan said. “You know, these are not like the nine greatest experts on the internet.”

The Biden administration, through Deputy Solicitor General Malcolm L. Stewart, downplayed the potential for lawsuits if the justices interpreted the law in a way that would weaken Section 230 immunity.

But Justice Brett M. Kavanaugh questioned whether the court should balance the consequences of changing the Section 230 status quo.

“Isn’t it better to keep it the way it is, for us, and to put the burden on Congress to change that and they can consider the implications and make these predictive judgments?” Kavanaugh said.

In the case, the family of Nohemi Gonzalez filed a lawsuit that argued that YouTube recommendations, which are generated by algorithms, helped spur the growth of terrorist group ISIS and sparked the deadly 2015 attack that killed her. The U.S. Court of Appeals for the 9th Circuit ruled that Section 230 provided immunity to Google and dismissed the case.

Several times through the argument the justices sought clarity on the Gonzalez family’s position in the case and how to determine when a website’s actions to display or recommend user-generated content could open them up to liability.

About halfway through the arguments, Justice Clarence Thomas said he was “still confused,” and Justice Ketanji Brown Jackson said she was “thoroughly confused.” And Justice Samuel A. Alito Jr. told a lawyer he was “completely confused by whatever argument you’re making at the present time.”

Congressional intent

Eric Schnapper, the attorney for the attack victim’s family, told the justices that internet companies have devised practices that don’t fall under the liability protections of Section 230, such as the algorithms that show thumbnails of other content posted on the site.

“The industry has to go back to Congress and say ‘we need you to broaden the statute because you wrote this to protect chat rooms in 1996, and we want to do something that doesn’t fit within the statutes,’” Schnapper said.

Stewart argued for the justices to find a definition of the law that keeps “the distinction between liability for the content and liability for the platform’s own choices” as it prioritizes or recommends content. “Congress didn’t create anything resembling an all-purpose immunity,” Stewart said.

However, Chief Justice John G. Roberts Jr., pointed out that claims in this case under the Antiterrorism Act would be “just a tiny bit of all the other stuff” that social media companies would face in court under that reading of the law, including antitrust, defamation, discrimination and other claims.

Lisa S. Blatt, an attorney for Google, argued that weakening the liability protections for internet companies would go against what Congress meant when it wrote Section 230. With weaker protections, websites would either never police any of its content, or take almost every objectionable post down, Blatt said.

Blatt called that a “Truman Show versus a horror show” scenario, where the internet would contain “only anodyne, cartoon-like stuff that’s very happy talk and otherwise you just have garbage on the internet.”

Jackson responded that Google’s view of the law “seems to bear no relation in my view to the text of the statute,” and that it seems to be “exactly the opposite of what Congress intended in the statute.”

The justices will hear oral arguments Wednesday in a separate case from Twitter, which seeks to escape legal liability under the Antiterrorism Act, although that case does not explicitly hinge on Section 230.

Congress last addressed Section 230 in 2018 when it passed a law that limited online companies’ immunity from suit when dealing with sex trafficking. Over the past few years, bipartisan groups of lawmakers have sought to rein in companies’ legal immunity under Section 230 but have yet to pass legislation on the issue.

Broad talks have typically broken down on partisan lines, with Republicans focused on alleged political censorship and Democrats concerned over misinformation online.

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