Supreme Court Holds Option to Sidestep Social Media Shield Issue

A day after the US Supreme Court grappled with a high-stakes clash that could roll back liability protections for internet companies, the justices will hear a related case that may provide a way to sidestep the thorny issue.

The Wednesday argument tests whether social media companies can be sued under a federal anti-terrorism law for not doing enough to remove Islamic State videos. If the answer is no, the justices might not need to resolve broader questions about Section 230, the provision that has given companies sweeping protection from lawsuits since 1996.

The Supreme Court expressed wariness about opening internet companies to lawsuits stemming from harmful user posts during nearly three hours of oral arguments on a separate but related case, Gonzalez v. Google, on Tuesday.

The case that will be heard on Wednesday, Twitter v. Taamneh, stems from a 2017 terrorist shooting in an Istanbul nightclub and centers on whether Twitter and other social media companies violated the Anti-Terrorism Act by hosting and making money from Islamic State videos. If the Supreme Court decides that the social media companies can’t be held responsible for “aiding and abetting” terrorism, the justices could opt not to decide whether Section 230 protects the companies from those claims — the central question in Gonzalez v. Google.

“If the court decides in Twitter v. Taamneh case that there’s no liability, that there’s nothing Twitter did that can violate the Antiterrorism Act, it renders Gonzalez irrelevant,” said Emma Llanso, the director of the Center for Democracy and Technology’s free expression program. Llanso said it could be the “path of least resistance or a more legally conservative path for the court to say, ‘We’ll take the easier set of questions and leave the difficult Section 230 questions for another day.’”

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Justice Amy Coney Barrett raised the prospect that the court could find in favor of Twitter Inc. to avoid answering the questions on the scope of Section 230. Google says a decision favoring Twitter would also let the court dismiss the Gonzalez suit.

“If you lose tomorrow, do we even have to reach the Section 230 question here?” Barrett asked Eric Schnapper, the attorney who represents the families in each of the two cases, during Tuesday’s arguments.

Tech companies and their allies say weakening Section 230 could have disastrous effects, forcing social media platforms, search engines and online marketplaces to radically reconfigure their businesses to avoid costly lawsuits. Critics of the industry call those worries overblown, saying internet companies need to bear more responsibility for the proliferation of dangerous hate speech and disinformation.

Some justices suggested they saw Google as seeking a broader legal shield than Congress intended. Congress enacted the provision during the internet’s early days, long before social media became the ubiquitous presence it is now.

“To the extent that the question today is can we be sued for making recommendations, that’s just not something the statute was directed to,” Justice Ketanji Brown Jackson said.

Cooking Videos

The case before the court on Tuesday involves Nohemi Gonzalez, a 23-year-old US citizen who was one of 130 people killed in attacks by the Islamic State group in Paris in November 2015. Her family says Google, through its algorithm-driven YouTube recommendations, aided the Islamic State in violation of the US Antiterrorism Act.

The family’s lawyer, Eric Schnapper, drew resistance from across the court’s ideological spectrum. Justice Clarence Thomas, who has previously said the court should consider paring back Section 230’s protections, suggested that companies can’t be sued if their recommendation algorithms are “neutral” about the kind of content they promote.

“If it’s the same algorithm to present cooking videos to people who are interested in cooking and ISIS videos to people who are interested in ISIS, racing videos to people who are interested in racing, I think you’re going to have to explain more clearly if it’s neutral in that way how your claim is set apart from that,” Thomas told Schnapper.

Justice Brett Kavanaugh said Schnapper was challenging a consensus among federal appeals courts about the scope of Section 230. He questioned Justice Department lawyer Malcolm Stewart’s assertion that few lawsuits against internet companies would be successful even if the court lifts Section 230.

“Isn’t it better to keep it the way it is, for us, and to put the burden on Congress to change that, and they can consider the implications and make these predictive judgments?” Kavanaugh asked. “You’re asking us right now to make a very precise predictive judgment that, ‘don’t worry about it, it’s really not going to be that bad.’ I don’t know that that’s at all the case.”

Targeted Algorithms

Google’s lawyer, Lisa Blatt, urged the court to issue a sweeping ruling that would shield websites from any suits over recommendations of third-party content.

But Chief Justice John Roberts said the language of Section 230 “doesn’t go that far.” The provision says internet companies aren’t responsible for material posted by “another information content provider.”

Roberts said the recommendations are provided by Google and YouTube themselves, not another content provider.

“The videos just don’t appear out of thin air,” Roberts said. “They appear pursuant to the algorithms that your clients have and those algorithms must be targeted to something.”

The San Francisco-based 9th US Circuit Court of Appeals said Section 230 required dismissal of the suit, characterizing Google’s recommendation algorithms as “neutral tools” that can’t be the basis of a lawsuit.

Justice Neil Gorsuch questioned the 9th Circuit’s reasoning, saying it won’t work in a world involving artificial intelligence.

“I mean, artificial intelligence generates poetry, it generates polemics today,” Gorsuch said. “That would be content that goes beyond picking, choosing, analyzing, or digesting content. And that is not protected.”

The court is scheduled to rule by late June in the cases, Gonzalez v. Google, 21-1333, and Twitter v. Taamneh, 21-1496.

To contact the reporters on this story:
Greg Stohr in Washington at gstohr@bloomberg.net;
Emily Birnbaum in Washington at ebirnbaum3@bloomberg.net;
Hadriana Lowenkron in New York at hlowenkron@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Sara Forden

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