Next Week, The Supreme Court Could Destroy Everything Good About The Internet

Content Moderation

from the a-toast-to-230 dept

Next week, the Supreme Court will hold the oral arguments in the Gonzalez and Taamneh cases. Gonzalez is the main show (and I’m somewhat surprised they didn’t have the hearings on the same day). There were dozens upon dozens of amicus briefs filed in the case, including one by us. There have been lots of articles this week talking about the case, and most of them are… not great. But I did want to present three very useful summaries — one video, two written — if you’d like to understand just what’s at stake here.

First up, we have Legal Eagle, who always does amazing videos summarizing legal issues (often in a humorous, but legally rigorous, way). He explains how much is at stake in this case, noting how it could fundamentally change the internet:

Notably, he was so concerned that he also signed onto a great amicus brief trying to warn the court of the dangers ahead.

Then there’s famed 1st Amendment lawyer Robert Corn-Revere, who has built much of his career fighting back against attempts to suppress speech, who pulls no punches in explaining why Section 230 is so important, and how the Supreme Court could do real damage with a bad ruling. As Corn-Revere says, both Republicans and Democrats are attacking Section 230, and they’re both wrong. And he notes, as we have in the past, that the attacks on Section 230 from both parties are almost entirely about trying to control the internet for their own benefits:

What they have in common is that both sides want to increase the government’s ability to control perhaps the most influential communications medium that has ever existed—a rare instance of bipartisan agreement. Progressives advocate modifying or repealing Section 230 to incentivize—that is, coerce—privately owned platforms into restricting content progressives believe is wrong or harmful. Conservatives, on the other hand, advocate modifying or repealing Section 230 to make the companies more vulnerable to claims the content that conservatives like is being “unfairly” moderated.

But, he explains, we actually “need Section 230 now more than ever.”

Simple math dictates the outcome: If there is the slightest chance you might shoulder legal accountability for what you let people post on your platform, you are not going to risk it.

Time and technology have not altered this essential calculus—except to make it more compelling. Compared to the millions of postings envisioned by the court that first interpreted Section 230, online platforms must now assess their potential liability risks from untold billions. To take just one example, users upload more than 500 hours of third-party content to YouTube per minute. That works out to 30,000 hours of new content per hour, and 720,000 hours per day.

Sure, these giant platforms use sophisticated algorithms to help screen what gets posted, but that fact does not affect the underlying rationale of Section 230. The larger the platform, the greater the risk of liability—and the greater the need for protection.

And the key point: if the Supreme Court eviscerates Section 230 (as it very well might), it will give politicians (of both parties) much greater ability to control speech online:

The stakes could not be higher. These cases will test the limits of what the Supreme Court meant in Packingham v. North Carolina back in 2017, when it warned that courts must exercise “extreme caution” before ratifying attempts to regulate online speech. They also will test the underlying assumptions that motivated the adoption of Section 230 in the first place: that the internet flourished because it was unfettered by federal or state regulation.

The alternative will be to leave the future of freedom of speech in the hands of politicians. I shudder at the thought.

This is the thing that so many haters of Section 230 don’t understand. They seem to think that getting rid of it will somehow benefit speech. But, it will not. It will benefit government officials attempting to control speech.

Finally, if you want to understand the specific details of exactly what the Supreme Court is actually looking at in this case, Jess Miers has a really useful summary of “what to expect” next week. She breaks down how the petitioners (not Google, but the estate of the woman who was tragically killed in the terrorist attack) are trying to say that YouTube isn’t protected by Section 230 because of its recommendation algorithm. The article breaks down the specific arguments that they’re making, looking more closely at the standard “test” for Section 230 protection, and how they’re arguing that it doesn’t apply here, while then also explaining why that argument is wrong.

Petitioners will assert that their claims do not treat YouTube as a ‘publisher’ because YouTube is not acting as a publisher when it performs algorithmic recommendations. Specifically, Petitioners argue that YouTube’s algorithms go beyond the mere dissemination of third-party content. Rather, it’s the algorithm itself that causes the harm.

This argument is also meritless. The harm does not arise from the code that displays content to the user; rather, the content itself is what causes the harm. In fact, if the Petitioners’ request is granted, the Court would only assess the underlying algorithm in terms of proximate cause, and the Petitioners would have no grounds for a claim.

The full piece is worth reading if you want a deeper understanding of the actual elements of the case, what the arguments are, and what the Supreme Court will be looking at. One thing she highlights, which I hadn’t really even thought about before, is the idea that URLs themselves are somehow harmful. This could lead to some very bizarre results.

The last prong is also highly contentious. But Petitioners’ argument is bizarre. To support that YouTube is responsible for the content at issue, the Petitioners point to YouTube’s URLs. Petitioners claim that the source of the harmful video is a YouTube-created URL (for example: youtube.com/funnycats). Petitioners contrast this with the “third-party” URLs displayed by Google Search.

This argument is nonsensical. Again, the harm derives from the underlying content, not the physical URL.

As Miers notes, the mess that might ensue if the Court buys this argument would not be pleasant for anyone online.

Imagine the consequences if the Court were to accept Petitioner’s URL argument. Any website that offers an internal search function would be ineligible for Section 230. Meanwhile, Plaintiffs could sneak their generic third-party content claims around Section 230 by simply pointing out that the defendant created the URL where the content exists.

According to the Petitioners’ reality, Section 230 should apply to static websites with no internal search capabilities, no hyperlinks to user-created content, and no push notifications. Surely, that was not Congress’ intent.

Either way, the internet may change an awful lot this year, depending on what the Supreme Court decides on this one case. While many of the commentaries about the case are suggesting that a small change to 230 might not do that much damage, that’s simply wrong. It could open the floodgates to a ton of frivolous lawsuits — which, even if the website owners would win in the long run, would create havoc and massive time, resource, and money headaches in the short term.

It is not enough for Google to simply win here. A situation where the Court affirms Section 230 for YouTube but subtracts algorithms from the immunity will result in a flood of frivolous lawsuits — that would fail on First Amendment grounds anyway — claiming “algorithmic harm” as a steady workaround. In fact, there are numerous social media addiction lawsuits waiting in the wings to do just that.

Indeed, the stakes are too high. Anything but wholehearted support for the decades of existing Section 230 precedence carries with it the risk of significant and far-reaching losses for all of us.

Filed Under: gonzales v. google, section 230, supreme court