This week, the Supreme Court heard oral arguments for Gonzalez v. Google, a case with the potential to fundamentally change how the internet works. Many pundits had anticipated that the Court would use the case to re-evaluate the liability shield for most websites hosting user-generated content that was established by Section 230 of the Communications Act in 1996. However, upon hearing Gonzalez’s arguments for curtailing Section 230 through judicial review, several justices expressed their confusion and reservations.
Gonzalez’s counsel Eric Schnapper argued that the Court should hold Google liable for terrorist recruitment videos recommended by YouTube’s algorithm despite Section 230’s protections. At issue is whether the algorithm is protected by the liability shield or is instead a traditional editorial function for which YouTube and Google would be responsible. Section 230 was written before modern social media algorithms, and Congress has not passed specific legislation addressing algorithms since the 1996 law.
This argument drew bewildered reactions from liberal and conservative justices alike. Justices Thomas, Alito, and Jackson each took a moment to tell Schnapper that they were “confused” by his argument. Indeed, the justices voiced their bemusement so much that the words “confused” and “confusion” appear five different times in the index of oral argument. The justices only expressed such puzzlement in relation to the arguments articulated by Schnapper and the Government’s attorney, Malcolm Stewart. For so many esteemed legal minds with diverse interpretative philosophies to agree about the confounding nature of a legal argument demonstrates the flawed logic of using the courts to reform congressional legislation.
Nor did it end there. In a moment that inspired laughter throughout the chamber, Justice Kagan quipped “You know, these are not like the nine greatest experts on the Internet.” Additionally, in a moment that generated awkward laughter in the court, Mr. Schnapper attempted to duck a well-stated analogy that Chief Justice Roberts posed comparing YouTube to a bookseller by asking the Chief Justice to explain his reason for the comparison before answering his question. Normally, justices are not expected to convince attorneys that their analogies are worthwhile before they get an answer. Instead, the attorneys typically understand their own argument’s implications thoroughly enough to develop responses for potential analogies posed by the court about the case. The skepticism from Gonzalez’s attorneys in this case displays a potential lack of preparedness, or more likely, clear evidence of the argument’s insufficient legal basis.
Additionally, Justice Gorsuch appeared to accept an interpretation proposed in the amicus brief jointly filed by the Cato Institute, Americans for Tax Reform, and the R-Street Institute by asking both parties to look at the definition of an access software provider within Section 230, which is encompassed by the definition of an interactive computer service. Interactive computer services are protected under Section 230 for the publication of content provided by another information content provider. Google’s attorney, Lisa Blatt, particularly noted during the oral arguments that some amici, presumably including the aforementioned brief, accurately pinpoint the distinction between interactive computer services and information content providers as whichever party is responsible for the creation or development of content.
While the specific text of the opinions themselves may still have potentially damaging consequences for the future of the internet, the justices appeared hesitant to overstep their constitutional boundaries by legislating Section 230, rather than adjudicating it. This widespread skepticism of judicial overreach, however, is a positive development for both the preservation of the internet and separation of powers.