It’s hard to believe the court will hand down a decision in Gonzalez v. Google that dramatically shifts the current interpretation of Section 230 of the Communications Decency Act of 1996, a law at the center of the debate over moderating speech on the internet, legal experts told the Daily Caller News Foundation.
The family of an American student killed in a 2015 ISIS attack filed the case, which the Supreme Court heard oral arguments for on Tuesday, alleging that YouTube “aided and abetted” the attack by allowing targeted recommendations of ISIS videos used to recruit members. Though the case deals with terrorism, the possibility of a court ruling on Section 230has led many to warn of the impact it could have on the internet if the court sides with the plaintiff.
Justices’ questions indicated that most had reservations about both sides’ arguments and the court’s role in navigating the issue, legal experts told the DCNF.
Jake Denton, a research associate in The Heritage Foundation’s Tech Policy Center, told the DCNF “it is still uncertain” how the court will rule, though it is probably not going to be a “landmark verdict.” Oral arguments demonstrated there is still a lot of confusion related to tech issues in the court, he said.
During oral arguments, Justice Kagan said the justices were “not the nine greatest experts on the internet.”
“We’re probably not going to see as much of a landmark verdict here [as] we might have thought we would have,” Denton said, adding that it would likely necessitate that Congress clarify content moderation policies “from the legislative angle.”
Ideally, Denton would want the Supreme Court’s decision to “rein in” broad lower court interpretations of Section 230. The Heritage Foundation’s amicus brief, filed in partnership with America First Legal on behalf of 17 members of Congress in support of neither party, makes this case, arguing that the lower courts have “strayed far” from the original text of Section 230.
“These misguided decisions have conferred near-absolute immunity on Big Tech companies to alter and push harmful content, while simultaneously censoring conservative viewpoints on important political and social matters,” the brief says.
The brief argues that Section 230 only “preclude[s] courts from treating internet service providers as the speaker or publisher of third-party content on their websites,” but does not grant broad immunity.
Thomas Berry, research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor‐in‐chief of the Cato Supreme Court Review, told the DCNF that it’s “much more likely that the Supreme Court will rule for Google.”
“While it’s never possible to be sure from oral argument, I think it’s much more likely that the Supreme Court will rule for Google than for the group of plaintiffs who are challenging Google’s Section 230 protections. Most of the justices seemed skeptical of the theories offered by both the counsel for the plaintiffs and for the United States, with particularly sharp questioning as to whether their theories would undermine the system of protection that Section 230 was intended to create,” Berry told the DCNF. “Indeed, only Justice Ketanji Brown Jackson appeared more likely to vote against Google based on the argument.”
Section 230, Berry said, will likely continue to provide websites the same immunity they have “relied on for decades.”
“I think the most likely outcome is that the Court will either affirm the lower court’s decision finding immunity for Google or dismiss the case as improvidently granted without a written opinion,” he said. “In either case, Section 230 would continue to provide websites with the same immunity they have relied on for decades, which would be a major relief to both large and small internet companies.”
CATO Institute also filed an amicus brief, except theirs was in support of Google. The brief argues that the loss of protection for algorithmic recommendations would limit speech on the internet, particularly harming smaller companies.
“If YouTube could not rely on Section 230 to shield it from suits over its recommendation of allegedly illegal, tortious, or harmful videos, it would have to either engage in continual litigation or ensure that such videos were not recommended by its algorithms,” the brief says. “Even if YouTube could bear the cost of defending these suits, smaller competitors like Rumble would not be able to.”
“Crucially, controversial but lawful speech about religion, politics, and health would likely face the most exclusion,” the brief continues. “To eliminate extremist religious speech, platforms would exclude esoteric or merely misunderstood theological discussion.”
Denton believes that concerns that reining in Section 230 would create less speech on the internet are likely “misguided.”
“We’re already seeing a great deal of content moderation, specifically targeted at the conservative perspective,” he told the DCNF. “While it could open the door, it’s hard to see how there would really be any meaningful change.”
Daniel Suhr, managing attorney of the Liberty Justice Center, who filed a brief on behalf of Gonzalez, also hopes the court will narrow protections, saying it is “long past time” for the court to return to the original meaning of Section 230.
“From my perspective, we filed an amicus brief because we believe it’s long past time that the Supreme Court returns us to the original meaning and goals of Section 230,” he said. “Congress meant Section 230 to empower Internet users to control their own content, not to give big tech companies unlimited protection from accountability.”
As for how the court might rule, Suhr said he would “let the law professors prognosticate.”
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