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Supreme Court case could rewrite Internet liability rules

By Sarah May on
 February 21, 2023

With oral arguments taking place this week at the U.S. Supreme Court in the case of Gonzales v. Google, the justices will have an unprecedented opportunity to reshape – and potentially upend – the vast liability protections Big Tech firms have enjoyed for years, as The Hill reports.

The high court is poised to consider specifically the extent to which Section 230 of the Communications Decency Act should continue to protect tech firms' decisions regarding the display, organization, and recommendation of content to its users, and the case has drawn intense interest from across the political spectrum.

Gonzales v. Google

In the case at issue, it is alleged that YouTube – a subsidiary of Google – provided a platform and deployed its proprietary algorithm to aggregate and recommend to its users terrorism-oriented content that had the effect of leading to the death of American citizen Nohemi Gonzalez in a terror attack that took place in France back in 2015, as The Hill notes.

The family of Gonzalez accuses YouTube of pointing viewers to content designed to recruit new Islamic State supporter and incite violence of the sort that claimed their loved one's life.

Google, for its part, contends that Section 230's protections against liability must extend not just to content itself, but also to the algorithms used by tech platforms to get certain types of content to users, stating in a brief filed in the case that a contrary ruling from the court would leave the Internet “with a forced choice between overly curated mainstream sites or fringe sites flooded with objectionable content.”

The tech giant further argues that altering the current, expansive application of Section 230 would “impede access to information, limit free expression, hurt the economy, and leave consumers more vulnerable to harmful content online.”

Conflicting arguments for reform

Despite continued calls for legislative action to address concerns about Section 230, Congress has yet take any concrete steps, and while support for changes has been voiced on both sides of the aisle, the rationales offered by each differ in significant ways.

Democrats, on one hand, have asserted that Big Tech firms ought face more stringent liability when they fail to moderate and block what is deemed to be problematic user content.

Republicans, on the other hand, argue that greater liability should come into play due to the propensity of tech platforms to remove and censor content – particularly that which is conservative in nature – with undue regularity.

President Joe Biden, has also weighed in, writing in a recent Wall Street Journal op-ed that bipartisan action in Congress is critical in order for meaningful reforms to be enacted,” saying, “[w]e've heard a lot of talk about creating committees," and adding, "[i]t's time to walk the walk and get something done."

Battle lines drawn

Though Google maintains that Section 230 provides protections from virtually any liability and that limiting “Section 230...would upend the internet and perversely encourage both wide-ranging suppression of speech and the proliferation of more offensive speech,” not everyone is convinced.

Late last year, Sen. Josh Hawley (R-MO) filed an amicus brief in the Gonzalez case, claiming that courts – including the lower courts in the matter at issue – have consistently misread the text of Section 230 and that Google should be subject to liability for content recommendations it makes.

“Google knows it has illegal content on its platforms, but they constantly point to Section 230 as their get-out-of-jail-free card. Enough,” Hawley said at the time his brief was filed.

Urging the nine justices to remedy this history of errors, Hawley added, “In no way should Big Tech have this kind of immunity from the harm being inflicted by their platforms. With this case, the Supreme Court has a critical opportunity to restore the law's original meaning and correct years of bad precedent. The Court should hold tech companies accountable for pushing illegal material to their users.”

Doubting Thomas

While Tuesday's oral arguments in Gonzalez may yield the first insights into the thinking of most of the justices on this highly contentious issue, Justice Clarence Thomas has already opined on the topic more than once, and it seems clear that he is more than amendable to reigning in Section 230 protections to a considerable degree.

As The Hill notes, on two prior occasions when the high court rejected cases pertaining to this controversy, Thomas penned written statements accompanying those orders that were his and his alone.

In 2020, Thomas explained, “Extending Section 230 immunity beyond the natural reading of the text can have serious consequences,” and just last year, he declared “It is hard to see why the protection Section 230(c)(1) grants publishers against being held strictly liable for third parties' content should protect Facebook from liability for its own 'acts and omissions.'”

The Biden Justice Department, for its part, filed an amicus brief of its own back in December, cautioning the Court against an “overly broad” interpretation of the provision at issue. Exactly which reading of the statute will ultimately win the day – and what sorts of ripple effects the outcome may have on the online landscape writ large – only time will tell.