SCOTUS Seems Unlikely

SCOTUS Seems Unlikely to Roll Back Section 230 Protection: Litigation Trends

At least based on comments in oral arguments yesterday, SCOTUS seems unlikely to roll back Section 230 protection in a case against Google.

As reported in Law & Crime (Justices seem unlikely to roll back Section 230 protection for YouTube in ISIS videos case, as Kagan mocks Supreme Court’s lack of internet know-how, written by Elura Nanos), the US Supreme Court (SCOTUS) heard nearly three hours of oral arguments Tuesday over the hotly-debated question of how much immunity internet companies should have under §230 (or Section 230) of the Communications Decency Act of 1996.

The case is Gonzalez v. Google LLC, which involves a suit against Google, the parent company of YouTube, where the plaintiffs argued that through its recommendation system that tailors content based on user profiles, YouTube led users towards recruitment videos for ISIS, and were partially responsible for a student’s death in Paris in 2015 (previously discussed in more detail by us here).

Even though the Ninth Circuit Court of Appeals and SCOTUS Justice Clarence Thomas seemed open to narrowing the scope of Section 230 previously, comments from the SCOTUS justices indicated that SCOTUS seems unlikely to cut back on YouTube’s immunity in the Gonzalez case, as reported in the article. Examples:

  • At the outset, Justice Thomas and Chief Justice John Roberts tag-teamed attorney and law professor Eric Schnapper, who argued on behalf of the Gonzalez family, to ask whether YouTube’s algorithms that suggest videos with corresponding thumbnail images should be considered outside the scope of Section 230’s protection. Thomas pointed out that if YouTube uses the same algorithms for a cooking enthusiast who might like to see more rice pilaf recipes as it does for an ISIS-sympathizer who wishes to see terrorist content, then the algorithm itself is “basically neutral.”
  • Justice Elena Kagan entered the colloquy to point out the central problem with the Court’s interpretation of Section 230: the law pre-dates the modern internet altogether.
  • Justice Sonia Sotomayor was likewise unwilling to chip away at Section 230’s scope. The justice called Schnapper’s argument “extreme,” and commented, “this has gone further than I thought.”

The article discusses more of the comments from the SCOTUS justices, including this joking observation from Justice Kagan about the wisdom of allowing the Supreme Court to answer complex questions related to the functioning of the internet: “These are not like the nine greatest experts on the internet,” Kagan said, to much laughter from the bench and gallery.

No kidding. Obviously, it “ain’t over till it’s over”, but the comments from SCOTUS justices yesterday seem to imply that SCOTUS seems unlikely to roll back Section 230 protection, at least based on this case. We’ll see what happens.

You can check out the article, with a link to full oral arguments here.


So, what do you think? Do you agree that SCOTUS seems unlikely to roll back Section 230 protection? Do you think they should roll it back? Please share any comments you might have or if you’d like to know more about a particular topic.

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