High Court Expected to Side With Tech, Create New Precedent

The Supreme Court appeared to side with Google and Twitter in two days of oral argument last week, but the justices will likely set new precedent for Communications Decency Act Section 230 and social media liability when rulings come down, legal experts said in interviews. The high court heard oral argument in Gonzalez v. Google (docket 21-1333) (see 2302210062) and Twitter v. Taamneh (docket 21-1496) (see 2302220065). Rulings are expected in June.

“If they were to rule tomorrow, the smart money would be that they will not hold Twitter or Google liable” and the cases will be returned to the lower courts for reexamination, said Bipartisan Policy Center Technology Project Director Tom Romanoff. BPC filed a brief in favor of Google in the Gonzalez case. In the final round of amicus briefs in January, not a single filer wrote in support of Gonzalez. All January filings in the Twitter case were written in favor of Taamneh, including filings from Sen. Chuck Grassley, R-Iowa; Anti-Terrorism Act (ATA) scholars; and several hundred terror attack victims.

It looks like the court is leaning more toward issuing a ruling that’s favorable to Google, said Public Knowledge Legal Director John Bergmayer. And if Twitter prevails, the Google case is moot, allowing the high court to avoid making any impactful decisions there, he said. Based on the facts in the Twitter case, it seems it would be “ridiculous” to say the platform was aiding and abetting terrorism based on the ATA, he said. PK filed in favor of Google in Gonzalez. Sometimes justices ask questions to play devil’s advocate, so it’s difficult to formulate accurate predictions based on the arguments, but the justices in these cases did show “some skepticism, not just friendly probing,” Bergmayer said.

Arguments against the platforms involve a “chain of assumptions” between the recommended content and the terror attacks, said Electronic Frontier Foundation Senior Staff Attorney Sophia Cope: “As far as I understand it, there really isn’t a lot of evidence to show” the attackers watched specific videos or content and then committed the attacks or were inspired to join ISIS. The court could let the platforms off under these circumstances, but justices can draw lines that would have major implications for ATA liability and Section 230 immunity in future cases, she said: “That’s what makes a lot of lawyers nervous. It’s not about whether Google and Twitter win. It’s about how the court gets there.”

“Everyone agrees” social media platforms “aren't automatically liable” just because their services are “incidentally used by terrorists,” said Santa Clara University School of Law professor Eric Goldman. But supporting terrorists knowing they're using the platform to advance their terror objectives would violate the ATA, he said: “Everything in-between those endpoints is uncertain, which can lead to many years of litigation and inconsistent judicial results.”

Carving back Communications Decency Act Section 230 would open the door for common law interpretations about tech liability, said Goldman. But platform liability differs from the liability of banks and gun dealers, for example, because the platforms are speech venues, subjecting them to First Amendment issues, he said.

Free speech claims against tech platforms will “continue to fail even if Section 230 is repealed,” said The Committee for Justice President Curt Levey in a Washington Examiner opinion piece Friday. The First Amendment prohibits only government censorship, and it’s a high bar proving a private tech company has taken action as a “state actor,” he said.

Bergmayer noted the discussion from Justices Sonia Sotomayor and Elena Kagan about product design and the potential for holding platforms liable for discriminatory algorithms. Those sorts of arguments have lost in lower courts, but the justices bringing it up could revive such claims, said Bergmayer: “There might be litigation around that.”

Both Bergmayer and Romanoff were surprised, they said, by questioning from Justices Clarence Thomas and Samuel Alito, who have been most vocal about prospects for rolling back Section 230. Some of the most skeptical questions about culpability seemed to come from them, said Bergmayer: There seems to be an awareness that perhaps these cases aren’t the best vehicles for rolling back Section 230, he said. Thomas, in particular, didn’t seem very sympathetic to arguments from the Gonzalez attorney, he said.

Regardless of how the court rules, there will be state and congressional pushes to reexamine questions about social media algorithms and culpability, said Romanoff. Congress has mechanisms to target recommendation algorithms, said Bergmayer: The justices’ questions showed it’s “really hard” to draw the line between elements like search results and recommendations.