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Supreme Court proves reluctant to upend the internet [1]

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Date: 2023-02-22  

A federal district court and the 9th U.S. Circuit Court of Appeals both dismissed the suit, so it ended up at the Supreme Court where, Stern writes, “the case fizzled out almost immediately.” Just one justice seemed inclined to take the opportunity to curtail Section 230: Justice Samuel Alito. He asked Google’s lawyer, Lisa Platt, why YouTube’s recommendations didn’t count as “YouTube’s speech,” and whether Google should be liable “for posting and refusing to take down videos that it knows are defamatory and false.” That’s beyond the scope of this case.

Justice Neil Gorsuch was inclined to go after the 9th Circuit, saying that a factor it used to dismiss the case wasn’t backed up in the statute. That court held, in his words, that an algorithm is a “neutral tool” and he’s not sure that’s a viable holding because such a test “isn’t anywhere in” Section 230. He is inclined to send the case back to down to the circuit court.

The remaining conservatives were skeptical of the case against Google. Justice Clarence Thomas compared ISIS recruitment videos to cooking demonstrations, and wondered how YouTube could be accessed of aiding and abetting terrorism when its algorithms worked the same way to serve up either to people searching for them. Chief Justice John Roberts was concerned about business interests and what a decision limiting Section 230 could mean.

“Billions of responses to inquiries on the internet are made every day,” he said. “Every one of those would be a possibility of a lawsuit” if the user didn’t like what was delivered. They could say, without evidence, that the search results for the algorithm were “defamatory” or included “harmful information.” That would mean, he said, “the internet will be sunk.”

Justice Brett Kavanaugh had the most salient argument and seemed to show the best understanding of the question. Section 230 protects websites as publishers, and inherent to the publication of content is organizing that content, which is just what the algorithms do, so trying to carve out the algorithm argument, when it is core to the publication of content, doesn’t make sense. “It would mean that the very thing that makes the website an interactive computer service also mean that it loses the protection of [Section] 230,” Kavanaugh argued. ”And just as a textual and structural matter, we don’t usually read a statute to, in essence, defeat itself.”

He argued that this needs to be clarified by Congress. “Congress drafted a broad text,” he told the plaintiffs’ lawyer. “That text has been unanimously read by courts of appeals over the years to provide protection in this sort of situation. You want to challenge that consensus,” he said, but that could “crash the digital economy.” Why not let Congress “take a look at this and try to fashion something along the lines of what you’re saying?” Later, he reiterated, "Isn’t it better to keep it the way it is [and] put the burden on Congress to change that?”

Finally, Justice Amy Coney Barrett suggested that the Court didn’t really need to decide this one—it’s hearing a second, similar case in Twitter v. Taamneh Wednesday. That’s another case brought by the family of a terrorist victim, in this case a Jordanian citizen killed in an ISIS attack in Istanbul. That case was filed under the Antiterrorism Act rather than Section 230, and the family is represented by the same attorney. Barrett suggested that the Court could just punt on the Gonzalez case and it could come back to them without them having to decide on Section 230. If that were the case, the attorney agreed, the Gonzalez family would “be entitled to try to amend the complaint … to satisfy whatever standard you establish” in the Twitter case.

As it stands, the Court is not ready to bring down the internet. Not this week, anyway.

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[1] Url: https://www.dailykos.com/stories/2023/2/22/2154394/-Supreme-Court-proves-reluctant-to-upend-the-internet

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