Supreme Court hears Gonzalez v. Google case against Big Tech

Television lights are set up outside the U.S. Supreme Court on February 21, 2023 in Washington, DC.

Supreme Court justices appeared broadly concerned Tuesday about the potential unintended consequences of allowing websites to be sued for their automatic recommendations of user content, highlighting the challenges facing attorneys that want to hold Google accountable for suggesting YouTube videos created by terrorist groups. 

For nearly three hours, the nine justices peppered attorneys representing Google, the US government and the family of Nohemi Gonzalez, an American student killed in a 2015 ISIS attack in Paris, with questions about how the court could design a ruling that exposes harmful content recommendations to liability while still protecting innocuous ones.

How – or if – the court draws that line could have significant implications for the way websites choose to rank, display and promote content to their users as they seek to avoid a litigation minefield. 

Beatriz Gonzalez and Jose Hernandez, the mother and stepfather of Nohemi Gonzalez, who died in a terrorist attack in Paris in 2015, speak to the media outside the US Supreme Court today following oral arguments in Gonzalez v. Google in Washington, DC.

The attorney for the Gonzalez family argued that narrowing Section 230 of the Communications Decency Act — the federal law protecting websites’ right to moderate their platforms as they see fit — would not lead to sweeping consequences for the internet. But both the court’s liberals and conservatives worried about the impact of such a decision on everything from “pilaf [recipes] from Uzbekistan” to individual users of YouTube, Twitter and other social media platforms. 

Justices are worried about a wave of lawsuits and disruption to the internet: A big concern of the justices seems to be the waves of lawsuits that could happen if the court rules against Google. 

But Eric Schnapper, representing the plaintiffs, argued a ruling for Gonzalez would not have far-reaching effects because even if websites could face new liability as a result of the ruling, most suits would likely be thrown out anyway. 

“The implications are limited,” Schnapper said, “because the kinds of circumstance in which a recommendation would be actionable are limited.” 

Later, Justice Elena Kagan warned that narrowing Section 230 could lead to a wave of lawsuits, even if many of them would eventually be thrown out, in a line of questioning with US Deputy Solicitor General Malcolm Stewart. 

“You are creating a world of lawsuits,” Kagan said. “Really, anytime you have content, you also have these presentational and prioritization choices that can be subject to suit.”  

Chief Justice John Roberts mused that under a narrowed version of Section 230, terrorism-related cases might only be a small share of a much wider range of future lawsuits against websites alleging antitrust violations, discrimination, defamation and infliction of emotional distress, just to name a few.  

Read more takeaways here and watch CNN’s Jessica Schneider break down the case:

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United States Supreme Court Associate Justice Ketanji Brown Jackson poses for an official portrait at the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC. 

Justice Ketanji Brown Jackson questioned Lisa Blatt about Congress’ original intent in passing Section 230, suggesting that the law was never meant to insulate tech platforms from lawsuits linked to algorithmic content recommendations.

“Isn’t it true that the statute had a more narrow scope of immunity than courts have ultimately interpreted it to have, and that it was really just about making sure that your platform and other platforms weren’t disincentivized to block and screen and remove offensive content?” Jackson asked, adding that recommendations were “not something the statute was directed to.”

Blatt, who is representing Google in the case, disputed Jackson’s narrative, saying lawsuits pertaining to recommendations fell within the scope of the authors’ legislative intent to shield websites from a barrage of websites.

“That’s death by a thousand cuts, and the internet would’ve never gotten off the ground if anybody could sue at any time and it were left up to 50 states’ liability regimes,” Blatt said.

The original authors of Section 230, Oregon Democratic Sen. Ron Wyden and former California Republican Rep. Chris Cox, explained their thinking behind the legislation in a filing to the court.

“Congress drafted Section 230 in a technology-neutral manner that would enable the provision to apply to subsequently developed methods of presenting and moderating user-generated content,” Wyden and Cox wrote. “The targeted recommendations at issue in this case are an example of a more contemporary method of content presentation.”

Algorithmic recommendations, they added, are “direct descendants of the early content curation efforts that Congress had in mind when enacting Section 230. And because Section 230 is agnostic as to the underlying technology used by the online platform, a platform is eligible for immunity under Section 230 for its targeted recommendations to the same extent as any other content presentation or moderation activities.”

So while Jackson is correct that Section 230 has been interpreted expansively by the courts, the intent of Section 230 is more in line with Blatt’s reading than Jackson’s, according to the drafters of the original law.

Lisa Blatt, a well-known Supreme Court advocate who is representing Google in this case, is up for questioning. The hearing has been underway for nearly two hours.

“Section 230 C1’s 26 words created today’s internet,” Blatt said, kicking off her presentation before the Supreme Court justices.

Here is what the text says:

A view of the U.S. Supreme Court today in Washington, DC. Oral arguments are taking place in Gonzalez v. Google, a landmark case about whether technology companies should be liable for harmful content their algorithms promote.

A big concern of justices seems to be what happens if the court rules against Google, namely a wave of lawsuits.

Justice Brett Kavanaugh asked Eric Schnapper, representing the plantiffs, to respond to various friend-of-the-court briefs warning of widespread disruption.

“We have a lot of amicus briefs that we have to take seriously that say this is going to cause” significant disruption, Kavanaugh said.

Schnapper argued that a ruling for Gonzalez would not have far-reaching effects because even if websites could face new liability as a result of the ruling, most suits would likely be thrown out anyway.

“The implications are limited,” Schnapper argued, “because the kinds of circumstance in which a recommendation would be actionable are limited.”

Many of the briefs Kavanaugh referenced had expressed fears of a deluge of litigation that could overwhelm startups and small businesses, whether or not they held any merit.

Later, Justice Elena Kagan warned that narrowing Section 230 could lead to a wave of lawsuits, even if many of them would eventually be thrown out, in a line of questioning with US Deputy Solicitor General Malcolm Stewart.

Even as Stewart suggested many such lawsuits might not ultimately lead to anything, Justices Kavanaugh and Roberts appeared to take issue with the potential rise in lawsuits in the first place.

Chief Justice John Roberts mused that under a narrowed version of Section 230, terrorism-related cases might only be a small share of a much wider range of future lawsuits against websites alleging antitrust violations, discrimination, defamation and infliction of emotional distress, just to name a few.

“I wouldn’t necessarily agree with ‘there would be lots of lawsuits’ simply because there are a lot of things to sue about, but they would not be suits that have much likelihood of prevailing, especially if the court makes clear that even after there’s a recommendation, the website still can’t be treated as the publisher or speaker of the underlying third party,” Stewart said.

Congress, the White House and now the US Supreme Court are all focusing their attention on a federal law that’s long served as a legal shield for online platforms.

The Supreme Court is hearing oral arguments on two pivotal cases this week dealing with online speech and content moderation. Central to the arguments is Section 230, a federal law that’s been roundly criticized by both Republicans and Democrats for different reasons but that tech companies and digital rights groups have defended as vital to a functioning internet. In today’s oral arguments on Gonzalez v. Google, the law has already come up multiple times.

Tech companies involved in the litigation have cited the 27-year-old statute as part of an argument for why they shouldn’t have to face lawsuits alleging they gave knowing, substantial assistance to terrorist acts by hosting or algorithmically recommending terrorist content.

Here are key things to know about the law:

Read more about Section 230 here.

Under questioning by Justice Amy Coney Barrett, attorney Eric Schnapper, representing the plaintiffs in Gonzalez v. Google, confirmed that under the legal theory he is advancing, Section 230 would not protect individual internet users retweeting, sharing or liking other people’s content.

The text of Section 230 explicitly immunizes “users” from liability for the content posted by third parties, not just social media platforms.

Barrett asked Schnapper whether giving a “thumbs-up” to another user’s posts, or whether taking actions including “like, retweet, or say ‘check this out,’” means that she has “created new content” and thus lost Section 230’s protections.

After quibbling briefly with Barrett over the definition of a user, Schnapper acknowledged that the act of liking or retweeting is an act of content creation that should expose the person liking or retweeting to potential liability.

“On your theory, I’m not protected by 230?” Barrett asked.

“That’s content you’ve created,” Schnapper replied.

Malcolm Stewart, the US deputy solicitor general, is now up for arguments.

The Justice Department is arguing that Section 230’s protections for platforms should be read more broadly than what that the plaintiffs are arguing, but that the algorithms that platforms use to make recommendations could potentially open up tech companies for liability.

In this October 2020 photo, Supreme Court nominee Judge Amy Coney Barrett meets with Sen. James Lankford in Washington, DC.

Justice Amy Coney Barrett referenced the exit ramp the Supreme Court has that would allow it to avoid the big legal question over the scope of Section 230, the relevant law the gives internet platforms certain protections from legal liability.

She pointed to the tech case the court will hear Wednesday, in which the justices will consider whether an anti-terrorism law covers internet platforms for their failure to adequate remove terrorism-related conduct. The same law is being used by the plaintiffs to sue Google in Tuesday’s case.

“So if you lose tomorrow, do we even have to reach the section 230 question here? Would you concede that you would lose on that ground here?,” Justice Barrett asked Eric Schnapper, the attorney for those who have sued Google.

United States Supreme Court Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan, Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson pose for their official portrait at the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC.

Justice Elena Kagan hinted that she thought that even if the arguments against Google had merits as a policy matter, Congress — rather than the Supreme Court — should be the one that steps in.

“I could imagine a world where you’re right, that none of this stuff gets protection. And you know — every other industry has to internalize the costs of its conduct. Why is it that the tech industry gets a pass? A little bit unclear,” Kagan said.

Following laughter in the courtroom, Kagan said she didn’t have to accept “the sky is falling” arguments from Google’s lawyers to think this was difficult and uncertain waters for the judicial branch to be wading in.

Maybe Congress wants a system that Google isn’t so broadly protected, she offered: “But isn’t that something for Congress to do? Not the court?”

Those who sued Google do not appear to be getting a lot of sympathy from the justices.

Across ideological lines, the justices seemed to struggle with even the basics of the arguments the plaintiffs are trying make. 

Questioning attorney Eric Schnapper first, Justice Clarence Thomas zeroed in on the fact that the algorithm that the plaintiffs are targeting in their case operates in the same way for ISIS videos as it does for cooking videos. 

“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 said. 

Later on in the argument, Thomas grilled Schnapper on how a neutral algorithm could amount to aiding and abetting under the relevant anti-terrorism law. He equated it to calling information, asking for Abu Dhabi’s phone number, and getting it from them.

“I don’t see how that’s aiding and abetting,” he said.

Liberal justices seemed just as wary of the idea that the algorithm could really make a platform liable for aiding and abetting terrorism. 

Eric Schnapper, the attorney for those who have sued Google, seems to be having difficulty articulating what aspect of YouTube’s business should be exposed to liability.

Across numerous questions, Chief Justice John Roberts and Justices Clarence Thomas and Elena Kagan, among others, have expressed confusion about how they can prevent a Supreme Court ruling from unintentionally harming content recommendations related to innocuous content, such as rice pilaf recipes. Schnapper appears reluctant to acknowledge that a ruling in his favor could have wide-ranging implications for content beyond videos posted by ISIS.

Justice Samuel Alito put it more bluntly: “I admit I’m completely confused by whatever argument you’re making at the present time.”

United States Supreme Court Associate Justice Clarence Thomas poses for an official portrait at the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC.

Justice Clarence Thomas jumps in with the first question of the Gonzalez v. Google hearing, asking Eric Schnapper, the attorney for those who have sued Google, about whether there was something specific about YouTube’s algorithm for the pro-ISIS videos in question that make the platform liable in his clients’ lawsuit.

“So we’re clear about what … your claim is: Are you saying that YouTube’s application of its algorithm is particular to, in this case — that they’re using a different algorithm to the one that, say, they’re using for cooking videos? Or are they using the same algorithm across the board?”

Thomas, who at one time had a reputation for rarely speaking at oral arguments, was expected to be highly engaged in this case.

People wait in line outside the US Supreme Court in Washington, DC, today.

The Supreme Court is hearing oral arguments in the first of two cases this week with the potential to reshape how online platforms handle speech and content moderation.

The oral arguments on Tuesday are for a case known as Gonzalez v. Google, which zeroes in on whether the tech giant can be sued because of its subsidiary YouTube’s algorithmic promotion of terrorist videos on its platform.

According to the plaintiffs in the case — the family of Nohemi Gonzalez, who was killed in a 2015 ISIS attack in Paris — YouTube’s targeted recommendations violated a US antiterrorism law by helping to radicalize viewers and promote ISIS’s worldview.

The allegation seeks to carve out content recommendations so that they do not receive protections under Section 230, a federal law that has for decades largely protected websites from lawsuits over user-generated content. If successful, it could expose tech platforms to an array of new lawsuits and may reshape how social media companies run their services.

What tech companies are saying: Google and other tech companies have said that exempting targeted recommendations from Section 230 immunity would increase the legal risks associated with ranking, sorting and curating online content, a basic feature of the modern internet. Google has claimed that in such a scenario, websites would seek to play it safe by either removing far more content than is necessary, or by giving up on content moderation altogether and allowing even more harmful material on their platforms.

As we wait for oral arguments to begin, here’s what we know about how the day will unfold.

Eric Schnapper, an attorney representing the Gonzalez family, will kick things off. Schnapper will have 20 minutes to speak, although realistically the argument could run longer.

Next, Malcolm Stewart will speak on behalf of the US government, which has argued that Section 230 should not protect a website’s targeted recommendations of content. Stewart is budgeted for 15 minutes.

Google’s attorney Lisa Blatt will follow for about 35 minutes, and then Schnapper will have a chance to offer concluding remarks — though, again, everything today could run for much longer than anticipated.

Justice Neil Gorsuch is under the weather and will participate in oral arguments in Gonzalez v. Google remotely, according to the Supreme Court.

The court did not specify the type of illness.

During the Covid-19 pandemic, oral arguments were conducted remotely.

The US Supreme Court is seen in Washington, DC, on January 19.

The Supreme Court is set to hear back-to-back oral arguments Tuesday and Wednesday on two cases that could significantly reshape online speech and content moderation.

The outcome of the oral arguments could determine whether tech platforms and social media companies can be sued for recommending content to their users or for supporting acts of international terrorism by hosting terrorist content. It marks the SCOTUS’ first-ever review of a hot-button federal law that largely protects websites from lawsuits over user-generated content.

First up Tuesday is the Gonzalez v. Google case. At the heart of the legal battle is Section 230 of the Communications Decency Act, a nearly 30-year-old federal law that courts have repeatedly said provide broad protections to tech platforms but has since come under scrutiny alongside growing criticism of Big Tech’s content moderation decisions.

The case involving Google zeroes in on whether it can be sued because of its subsidiary YouTube’s algorithmic promotion of terrorist videos on its platform.

According to the plaintiffs in the case — the family of Nohemi Gonzalez, who was killed in a 2015 ISIS attack in Paris — YouTube’s targeted recommendations violated a US antiterrorism law by helping to radicalize viewers and promote ISIS’s worldview.

The allegation seeks to carve out content recommendations so that they do not receive protections under Section 230, potentially exposing tech platforms to more liability for how they run their services.

Beatrice Gonzalez and Jose Hernandez, the mother and stepfather of Nohemi Gonzalez, who was fatally shot and killed in a 2015 rampage by Islamist militants in Paris, are seen outside the U.S. Supreme Court in Washington, on February 16.

Google and other tech companies have said that interpretation of Section 230 would increase the legal risks associated with ranking, sorting and curating online content, a basic feature of the modern internet. Google has claimed that in such a scenario, websites would seek to play it safe by either removing far more content than is necessary, or by giving up on content moderation altogether and allowing even more harmful material on their platforms.

Friend-of-the-court filings by Craigslist, Microsoft, Yelp and others have suggested the stakes are not limited to algorithms and could also end up affecting virtually anything on the web that might be construed as making a recommendation. That might mean even average internet users who volunteer as moderators on various sites could face legal risks, according to a filing by Reddit and several volunteer Reddit moderators. Oregon Democratic Sen. Ron Wyden and former California Republican Rep. Chris Cox — the original co-authors of Section 230 — argued to the court that Congress’ intent in passing the law was to give websites broad discretion to moderate content as they saw fit.

The Biden administration has also weighed in on the case. In a brief filed in December, it argued Section 230 does protect Google and YouTube from lawsuits “for failing to remove third-party content, including the content it has recommended.” But, the government’s brief argued, those protections do not extend to Google’s algorithms because they represent the company’s own speech, not that of others.

The Supreme Court will hear oral arguments Wednesday on the second case, Twitter v. Taamneh, which will decide whether social media companies can be sued for aiding and abetting a specific act of international terrorism when the platforms have hosted user content that expresses general support for the group behind the violence without referring to the specific terrorist act in question.

Rulings in the cases are expected by the end of June.

The deadlock over Section 230 has thrown much of the momentum for changing the law to the courts — most notably, the US Supreme Court, which now has an opportunity this term to dictate how far the law extends.

Tech critics have called for added legal exposure and accountability.

For the tech giants, and even for many of Big Tech’s fiercest competitors, it would be a bad thing, because it would undermine what has allowed the internet to flourish. It would potentially put many websites and users into unwitting and abrupt legal jeopardy, they say, and it would dramatically change how some websites operate in order to avoid liability.

The social media platform Reddit argued in a Supreme Court brief that if Section 230 is narrowed so its protections do not cover a site’s recommendations of content a user might enjoy, that would “dramatically expand Internet users’ potential to be sued for their online interactions.”

People would stop using Reddit, and moderators would stop volunteering, the brief argued, under a legal regime that “carries a serious risk of being sued for ‘recommending’ a defamatory or otherwise tortious post that was created by someone else.”

While this week’s oral arguments won’t be the end of the debate over Section 230, the outcome of the cases could lead to hugely significant changes the internet has never before seen — for better or for worse.

Much of the criticism of Section 230 has come from conservatives who say that the law lets social media platforms suppress right-leaning views for political reasons.

By safeguarding platforms’ freedom to moderate content as they see fit, Section 230 does shield websites from lawsuits that might arise from that type of viewpoint-based content moderation, though social media companies have said they do not make content decisions based on ideology, but rather on violations of their policies.

The Trump administration tried to turn some of those criticisms into concrete policy that would have had significant consequences, if it had succeeded. For example, in 2020, the Justice Department released a legislative proposal for changes to Section 230 that would create an eligibility test for websites seeking the law’s protections. That same year, the White House issued an executive order calling on the Federal Communications Commission to interpret Section 230 in a more narrow way.

The executive order faced a number of legal and procedural problems, not least of which was the fact that the FCC is not part of the judicial branch, it does not regulate social media or content moderation decisions and it is an independent agency that, by law, does not take direction from the White House.

Even though the Trump-era efforts to curtail Section 230 never bore fruit, conservatives are still looking for opportunities to do so. And they aren’t alone. Since 2016, when social media platforms’ role in spreading Russian election disinformation broke open a national dialogue about the companies’ handling of toxic content, Democrats have increasingly railed against Section 230.

By safeguarding platforms’ freedom to moderate content as they see fit, Democrats have said, Section 230 has allowed websites to escape accountability for hosting hate speech and misinformation that others have recognized as objectionable but that social media companies can’t or won’t remove themselves.

The result is a bipartisan hatred for Section 230, even if the two parties cannot agree on why Section 230 is flawed or what policies might appropriately take its place.