Supreme Court Frustrated and Wary Over Legal Shield for Tech Companies
WASHINGTON — In a case with the potential to alter the very structure of the internet, the Supreme Court on Tuesday explored the limits of a federal law that shields social media platforms from legal responsibility for what users post on their sites.
The justices seemed to view the positions taken by the two sides as too extreme and expressed doubts about their own competence to find a middle ground. “These are not the nine greatest experts on the internet,” Justice Elena Kagan said of the Supreme Court.
Others had practical concerns. Justice Brett M. Kavanaugh said the court should not “crash the digital economy.”
The case was brought by the family of Nohemi Gonzalez, a 23-year-old college student who was killed in a restaurant in Paris during the terrorist attacks in November 2015, which also targeted the Bataclan concert hall. Eric Schnapper, a lawyer for the family, argued that YouTube, a subsidiary of Google, bore responsibility because it had used algorithms to push Islamic State videos to interested viewers, using information that the company had collected about them.
“We are focusing on the recommendation function,” Mr. Schnapper said.
But Justice Clarence Thomas said that recommendations were vital to making internet platforms useful. “If you’re interested in cooking,” he said, “you don’t want thumbnails on light jazz.” He later added, “I see these as suggestions and not really recommendations.”
Understand the U.S. Supreme Court’s Term
A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returned to the bench in October — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the term:
Affirmative action. The marquee cases of the term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedent at risk.
Voting rights. The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited the law’s reach in other contexts.
Discrimination against gay couples. The justices heard an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.
Company protection from social media comments. The court will hear a case challenging a law that protects Google, Facebook and others from lawsuits over what their users post online. The case could have potentially seismic ramifications for the social media platforms that have become conduits of communication, commerce and culture for billions of people.
What constitutes online threats. The court will soon have a chance to determine when creepy Facebook messages cross a constitutional line. The justices will hear arguments in April on a case involving a man who sent repeated disturbing messages to a singer-songwriter. The court has not been especially clear about what constitutes a threat under the First Amendment.
Mr. Schnapper said YouTube should be liable for its algorithm, which he said systematically recommended videos inciting violence and supporting terrorism. The algorithm, he said, was YouTube’s speech and distinct from what users of the platform had posted.
Justice Kagan pressed Mr. Schnapper on the limits of his argument. Did he also take issue with the algorithms Facebook and Twitter use to generate people’s feeds? Or with search engines?
Mr. Schnapper said all of those could lose protection under some circumstances, a response that seemed to surprise Justice Kagan.
Justice Amy Coney Barrett asked about whether Twitter users could be sued for retweeting ISIS videos. Mr. Schnapper said the law at issue in the case might allow such a suit. “That’s content you created,” he said.
The law, Section 230 of the Communications Decency Act, was enacted in 1996, in the infancy of the internet. It was a reaction to a decision holding an online message board liable for what a user had posted because the service had engaged in some content moderation.
The provision said, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The provision helped enable the rise of social networks like Facebook and Twitter by ensuring that the sites did not assume legal liability for every post.
Malcolm L. Stewart, a lawyer for the Biden administration, argued in support of the family in the case, Gonzalez v. Google, No. 21-1333. He said that successful lawsuits based on recommendations would be rare but that the immunity provided by Section 230 was generally unavailable.
More on the U.S. Supreme Court
- Ethics Code: As calls for the Supreme Court to adopt an ethics code mount, the justices continue to wrestle with whether to adopt a policy similar to one that applies to all other federal judges.
- Road to a Clerkship: A study found that the chances of obtaining a coveted Supreme Court clerkship are considerably higher for people with undergraduate degrees from Harvard, Yale or Princeton.
- Bathroom Bans: After a ruling created a split among federal appeals courts on whether schools can forbid transgender students to use restrooms matching their gender identities, the issue might now be headed to the Supreme Court.
- Leaked Draft Opinion: The court announced that an internal inquiry failed to identify who leaked a draft of the opinion that overturned Roe. The investigation included interviews with all nine justices.
Lisa S. Blatt, a lawyer for Google, said the provision gave the company complete protection from suits like the one brought by Ms. Gonzalez’s family. YouTube’s algorithms are a form of editorial curation like search engine results or Twitter feeds, she said. Without the ability to provide content of interest to users, she said, the internet would be a useless jumble.
“All publishing requires organization,” she said.
A ruling against Google, she said, would either force sites to take down any content that was remotely problematic or to allow all content no matter how vile. “You’d have ‘The Truman Show’ versus a horror show,” she said.
Justice Kagan asked Ms. Blatt if Section 230 would protect “a pro-ISIS” algorithm or one that promoted defamatory speech. Ms. Blatt said yes.
Section 230 has faced criticism across the political spectrum. Many liberals say it has shielded tech platforms from responsibility for disinformation, hate speech and violent content. Some conservatives say the provision has allowed the platforms to grow so powerful that they can effectively exclude voices on the right from the national conversation.
The justices will hear arguments in a related case on Wednesday, also arising from a terrorist attack. That case, Twitter v. Taamneh, No. 21-1496, was brought by the family of Nawras Alassaf, who was killed in a terrorist attack in Istanbul in 2017.
The question in that case is whether Twitter, Facebook and Google may be sued under the Antiterrorism Act of 1990, on the theory that they abetted terrorism by permitting the Islamic State to use their platforms. If the justices were to say no, the case against Google argued on Tuesday could be moot.
Whatever happens in the cases argued this week, both involving the interpretation of statutes, the court is very likely to agree to consider a looming First Amendment question arising from laws enacted in Florida and Texas: May states prevent large social media companies from removing posts based on the views they express?
