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Lawyer warns of “horror show” if Supreme Court upends Internet liability protections

 February 22, 2023

The Supreme Court on Tuesday heard oral arguments in a case involving Section 230 of the Communications Decency Act, which provides internet companies and social media platforms with a measure of immunity from liability for content posted by third-party users.

An attorney representing Google in this case warned the justices that ending Section 230's protections could result in some parts of the internet becoming an absolute "horror show" with no moderation of violent or hateful content, according to Deadline.

Conversely, the lawyer also warned that ending Section 230 could transform other parts of the internet to resemble the "Truman Show" movie in which everything in life is moderated to the extent that it becomes boring and unimaginative.

Are there limits to Section 230's liability immunity?

The Supreme Court heard arguments Tuesday in the case of Gonzalez v. Google LLC, in which the central question is whether Section 230 provides immunity for internet companies and social media platforms that "make targeted recommendations of information provided by another information content provider," or if the protection from liability only extends to "traditional editorial functions,” such as deciding what can and can't be displayed.

The case was brought by the family of Nohemi Gonzalez, a U.S. citizen who was killed in an Islamic State group terror attack in Paris, France in 2015, and who argued that Google violated the Antiterrorism Act because YouTube and its algorithms recommended ISIS videos that helped radicalize and recruit would-be terrorists.

Google, of course, insists that it is not liable due to the immunity provided by Section 230, which has been in effect for roughly three decades and has survived numerous court challenges.

The "Truman Show" or a "horror show"

According to The Hill, nearly all of the nine justices expressed confusion and skepticism toward the arguments made by the attorney representing the family, Eric Schnapper, who sought to convince them that Section 230's immunity from liability shouldn't apply to YouTube's algorithms.

Representing Google was attorney Lisa Blatt, who argued that Section 230's protections "created today’s internet" and allowed tech companies to be innovative in how information is compiled and presented to users – including the algorithms that are used to help organize information and present users with exactly what they want to see.

Without the benefits of Section 230, Blatt cautioned, the internet could become a "'Truman Show' vs. a horror show" situation, where everything is either moderated to feature only inoffensive "anodyne, cartoon-like" content or have no moderation whatsoever and allow for anything and everything to be posted and found.

And, in that case, "Congress would not have achieved its purpose" with the Section 230 law, she added.

Congress should handle this, not the courts

Deadline reported that along with the expressed confusion of most of the justices with regard to the technical specifics of this case, was also a clear hesitance for the court to wade into the matter of delineating the applicability of Section 230's immunity.

In fact, Justice Elena Kagen said at one point, "We are a court. We really don’t know about these things. We are not the nine biggest experts on the internet. Isn’t this a case for Congress, not the court?"

At another point, according to The Hill, Kagen said, "I take the point that there are a lot of algorithms that are not going to produce pro-ISIS content and that won’t create a problem under this statute. But maybe they’ll produce defamatory content or maybe they’ll produce content that violates some other law. And your argument can’t be limited to this one statute."

Court could dodge the issue for now

Interestingly enough, the justices may have a ready-made escape route to avoid having to make any rulings about Section 230, at least not right now, as Justice Amy Coney Barrett pointed out that another case the court was set to hear oral arguments on could render the entire discussion in this particular case moot.

According to SCOTUSblog, that separate case set to be heard on Wednesday is Twitter v. Taamneh, in which attorney Schnapper is representing the family of a Jordanian citizen killed in an ISIS terror attack on a club in Istanbul, Turkey.

That case doesn't involve Section 230 of the Communications Decency Act but does address provisions of the Antiterrorism Act and whether tech companies that provide "generic, widely available services" to users can be held liable for "aiding and abetting" acts of terrorism if such acts can be linked to content posted on the service.

Barrett suggested that the court wouldn't need to decide on the Section 230 question right now if the Taamneh case was remanded back down to the district court for further arguments, which could lead to a determination that Twitter and Google are liable under the antiterrorism law regardless of Section 230's immunity.