The Supreme Court Doesn’t Seem to Buy the Argument That Section 230 Should Be Reinterpreted

Lawyers for the potentially landmark Gonzalez v. Google case gave oral arguments in front of the Supreme Court today.

Supreme Court Justices Amy Coney Barrett and Ketanji Brown Jackson stand side by side.
Supreme Court Justice Ketanji Brown Jackson (right) said she was “thoroughly confused” by the plaintiff’s argument. CQ-Roll Call, Inc via Getty Imag

Lawyers argued a potentially landmark case that could change the how Big Tech platforms are protected by U.S. law in front of the Supreme Court today (Feb. 21). The Justices seemed reluctant to accept the plaintiff’s argument, which seeks to reinterpret a decades-old law. They spent a portion of time trying to understand the plaintiff’s case.

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“I’m thoroughly confused,” Justice Ketanji Brown Jackson told the plaintiff’s lawyer, Eric Schnapper, 65 minutes into his 70-minute argument. Justices Clarence Thomas and Samuel A. Alito Jr. expressed similar confusion.

Gonzalez v. Google (GOOGL) addresses Section 230 of the Communications Decency Act, which says platforms cannot be held liable for the third party content they host. Social media platforms like YouTube, Facebook and Twitter have historically relied on this law to defend hosting objectionable content. Schnapper argued Google should be held liable for recommending videos from terrorists on YouTube, which Google owns. YouTube videos created by ISIS led to the death of the plaintiff’s daughter, Nohemi Gonzalez, during the 2015 terrorist attack in Paris, the plaintiff argued.

Schnapper said YouTube aided and abetted terrorist organizations by failing to take action against the terrorists spreading posts on its platform. But he struggled to explain where the line should be drawn—after the first recommended video or the second, at what point the algorithm shifts from “neutral” to “aiding and abetting” and to what extent users sharing content should be held accountable. This is in part because there aren’t many cases that set precedents, Schnapper pointed out. But it led to confusion and disagreement from the Justices.

Justice Thomas, who has previously spoken critically of Section 230, said he didn’t see how YouTube was “recommending” rather than “suggesting” content, and he didn’t think it amounted to “aiding and abetting” terrorism. Others agreed. Justice Elena Kagan suggested Congress might be better suited to address the law, rather than the court.

A companion case addressing the scope of U.S. anti-terrorism laws, Twitter v. Mehier Taamneh, will be heard in the Supreme Court on Feb. 22.

Lawmakers passed Section 230 in 1996, when algorithms were not yet widely adopted and Congress couldn’t fathom what the internet would become, Schnapper said in the oral arguments. This could be cause for a reinterpretation, but it could also contribute to a slew of lawsuits against Big Tech companies that could stifle innovation. The internet would not be what it is today had this protection not been granted, Google’s lawyer Lisa Blatt said in oral arguments.

The Supreme Court Doesn’t Seem to Buy the Argument That Section 230 Should Be Reinterpreted