Some Initial Thoughts On The Supreme Court Oral Arguments In Gonzalez: Non-Experts Might Still Make A Mess Of Things, But Without Understanding Why

Legal Issues

from the initial-thoughts dept

Despite the Supreme Court hearing what could be the most consequential case regarding the future of the internet in decades, I decided to log off for most of Tuesday and go do something fun, far away from any internet connection. I didn’t listen live to the oral arguments, but rather chose to listen (at 3x speed) to the arguments Tuesday evening, while simultaneously reading the transcript. My colleague Cathy Gellis didn’t just listen to the oral arguments, but attended live at the Supreme Court (and is doing the same today with the associated Taamneh case), so I expect that she’ll have a more thorough analysis from her later.

Instead, here are a few quick thoughts:

• I say this all the time, but never get too worked up in either direction based on oral arguments. All too often the final opinion has little to do with what was stated at oral arguments. However, oral arguments can still be a useful way of testing to see which way certain justices are thinking even if that doesn’t necessarily show which way they’re leaning.

• Given that, it seems pretty damn clear that Reynaldo Gonzalez is not going to get what he wants. There was so much skepticism regarding Gonzalez’s argument that 230 doesn’t apply to recommendation algorithms, and Gonzalez’s lawyer, the well-respected and quite esteemed Eric Schnapper, did himself no favors. He did not seem particularly well prepared for the questions the justices asked of him, and even when they threw him a few life lines, he rejected them. Schnapper has a long history before the court, often extremely successful. This was not one of his better appearances.

• It’s long been assumed that Justices Thomas and Alito were already pre-determined to use this case to further their (publicly stated) goals of ripping apart Section 230, so it was surprising to see both of them actually asking pretty challenging questions to Schnapper, and suggesting that his argument made no sense. Thomas leapt in with the first question, and basically undermined Schnapper’s entire legal argument, pointing out that most algorithms are actually kinda useful. And throughout, he kept asking mostly decent questions suggesting that he knew this case was nonsense and that a recommendation algorithm is in no way responsible for the content it recommends.

• Schnapper then tanked his entire argument, by going off on a weird tangent about thumbnail images somehow not being protected by 230 (what?!?) and just making a huge mess of things. The stupid thumbnails kept coming back up, despite having nothing to do with anything (also, the thumbnails are still, in fact, third party content).

• Alito also picked apart Schnapper’s arguments, pointing out that organizing and presenting information is a core part of publishing, meaning that it would be actions protected under 230, undermining the claim that a recommendation algorithm is not a publishing activity outside the scope of 230.

• I was confused and surprised when the Supreme Court took this case, because it’s so obviously a stupid case. Yes, it’s unfortunate that people died in terrorist attacks, but blaming YouTube for the death makes no sense. The lawsuit didn’t even try to connect the attackers to YouTube. They just said YouTube recommended ISIS videos, this was an ISIS attack, therefore we can sue YouTube. That’s just ridiculous on its face, and the fact that all of the Justices seemed to recognize that was interesting. I had assumed the case was taken solely for the purpose of trying to rip apart 230, but they picked a case with such a bizarre fact pattern it actually helped to show why 230 is so useful: to get rid of silly, stupid, misguided cases like these. So, now I’m back to being surprised and confused they granted cert in the first place. It almost makes me wonder if Thomas/Alito really wanted it because it was about 230, but once they finally read the details they realized what a stupid case this was?

• All that said, I still very much fear the outcome of this case. It seems very, very unlikely that Gonzalez wins overall. But there was still an awful lot of nonsense spouted by the Justices, some of which might make it into a final ruling, where even some minor misunderstanding could have massive impact on the future of the internet.

• Justice Kagan, at one point, correctly noted (to laughter) that “We really don’t know about these things. You know, these are not like the nine greatest experts on the Internet.” And, uh, yeah. It showed. There were lots of weird comments about “neutral” algorithms, which is nonsense, because every recommendation algorithm is designed not to be “neutral” but to serve up responses that are believed to believed to be the best ones. Also all the talk about thumbnails and other slightly off-topic stuff.

• There at least seemed to be a recognition, especially from Kavanaugh, that the petitioners were basically trying to get the court to rewrite 230, and that’s not the Court’s job. It’s Congress’s, if it decides that 230 really needs to change. I hope that means the eventual opinion will be extremely careful, but I fear it won’t be.

• But the fact that even as the Justices all pushed back on Schnapper, they did so in weird, confusing, and sometimes incomprehensible ways, worries me a lot. It means there’s an unfortunately high likelihood that something really dumb makes it into the ruling, which the Justices will not understand, and which will open the floodgates for nonsense.

• I had meant to write something about the US government weighing in on this case with a brief from the Solicitor General, but never got around to it. All I will say is that the government’s argument (basically trying to split the baby, without realizing that splitting the baby means the baby dies) was incredibly bad and disconnected from reality. And, frankly, the government’s nonsensical position showed at oral arguments as the Justices again picked it apart and made me wonder why the White House thought it needed to step in for this case in particular. The amazing thing that I got out of the US government’s arguments in the case is that it seems to want the law to say that “retweets are endorsements, and therefore you’re liable for them.” Which is… really, really stupid.

• For Google’s part, I think its lawyer Lisa Blatt mostly did a good job, but I was surprised that she openly endorsed the recent 4th Circuit decision that really cut away at Section 230. It’s a terrible ruling and nothing that Google should ever be endorsing. Indeed, I fear this is the kind of thing that could lead to shenanigans in the final opinion.

On the whole… well, it could have been much worse. If I had to pick someone I hope writes the eventual opinion, it would actually be Justice Kavanaugh, who seemed to have more deeply understood the issues here.

Either way, I’m sure we’ll have much more on this, though we’ll have to wait until the opinion comes out, likely in June, to figure out what this all really means.

Filed Under: eric schnapper, gonzalez v. google, intermediary liability, isis, lisa blatt, recommendation algorithms, section 230, supreme court, terrorism
Companies: google, youtube