The Supreme Court is set to hear oral arguments on Tuesday in a case that could upend protections internet companies have had throughout the roughly two-decade rise of social media.
The case, Gonzalez v. Google, centers on allegations that Google subsidiary YouTube provided a platform for and used its algorithm to recommend terrorist content in a way that incited violence and led to the death of U.S. citizen Nohemi Gonzalez during a 2015 terror attack in France. It targets the controversial Section 230 provision of the 1996 Communications Decency Act, which provides a liability shield for internet providers over content posted by third parties.
The tech industry argues that protection is critical, but the rule has been criticized on both sides of the aisle — albeit for different reasons.
As Congress is largely at a stalemate on how to proceed with rules regulating content moderation, all eyes are on how the justices respond in the first Section 230 case to hit the highest court.
“There is a potential, for the first time really, to very significantly change the way that Section 230, which is one of the pillars of internet law, has been interpreted going forward,” said Ashley Johnson, a senior policy analyst at the think tank Information Technology and Innovation Foundation (ITIF).
Here are five things to know heading into Tuesday’s oral argument:
The outcome could impact how platforms recommend content
The case revolves around the core provision of Section 230: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
As interpreted to date, that protection has kept companies from being held legally responsible over content that is posted by third parties.
Rather than focus on the hosting of content, however, the case considers if Google is responsible for its algorithmic recommendations that drives content to users.
The dispute delves into a granular debate over what Congress meant by words like “publisher” and “information.” Google and its supporters argue that its recommendation algorithms are essential to operating the modern internet and that Congress envisioned the protections to apply.
“If anyone on the internet can’t use technical means, like a computer, to sort or to help display content, then how can a company really display millions and millions of new videos that are uploaded every week?” said John Morris, principal of U.S. internet policy and advocacy at the Internet Society, a nonprofit that includes Google as a member and filed an amicus brief in the case.
The tech industry says narrowing Section 230 could disproportionately impact small and mid-size companies
Unlike other issues facing the tech world, like revamping antitrust policy, mid-size firms have joined Google and other tech giants to take a broadly unified stance against gutting Section 230.
Tech companies relatively smaller than Google, such as Yelp and Reddit, filed amicus briefs in the case arguing cuts to the provision would especially harm smaller firms.
Yelp filed an amicus brief suggesting “deceptive reviews would flourish and consumers would be harmed” without the protections.
Reddit’s brief said narrowing Section 230 protections “risks devastating the internet,” and that smaller and startup platforms depend on it to “foster diverse approaches to content moderation and to challenge the dominant industry leaders.”
Google’s brief makes similar arguments as other tech companies. The search giant said weakening the protections to companies would make it more difficult to provide relevant and safe results.
“Gutting Section 230 … would upend the internet and perversely encourage both wide-ranging suppression of speech and the proliferation of more offensive speech,” Google said in a filing in January.
Morris contended that narrowing the protections would stymie innovation in the industry because smaller businesses don’t have the resources to adjust to a narrower protection.
“What’s critical about Section 230 is that it enables a small innovator with a new idea about how people might communicate online to focus on developing their product and not necessarily focus initially on negotiating liability agreements,” Morris said.
This is the first time most justices will weigh in on the controversial provision
Most of the justices have not opined on Section 230 before, and Tuesday’s oral argument may give the first signs into their thinking.
The only exception is Justice Clarence Thomas, who has cast doubt on the breadth of the protections.
On two previous occasions when the court declined to hear Section 230 cases, Thomas wrote accompanying statements about the law that no other justice joined.
“Extending §230 immunity beyond the natural reading of the text can have serious consequences,” Thomas wrote in 2020.
In a case involving Facebook last March, Thomas wrote, “It is hard to see why the protection §230(c)(1) grants publishers against being held strictly liable for third parties’ content should protect Facebook from liability for its own ‘acts and omissions.’”
More cases are likely to follow
While Gonzalez v. Google is the first case centered on Section 230 to be heard before the Supreme Court, it probably won’t be the last.
Steve Schwinn, a University of Illinois Chicago Law School professor and long-time court watcher, said the ruling’s implications for other platforms are “pretty dangerous territory” for the court and could lead to additional litigation.
“It’s just not at all clear to me that anybody has the sort of foresight to be able to see what that’s going to mean for other platforms,” Schwinn said.
As the court mulls Section 230, legal battles also are brewing over other social media laws.
The justices are considering reviewing Texas’s and Florida’s controversial social media laws that seek to ban tech companies from removing content or users based on political ideology, and the court has given multiple signals it is interested in the case.
Two tech industry groups, the Computer and Communications Industry Association and NetChoice, are challenging the laws, arguing that they violate private companies’ First Amendment rights to decide what speech to host.
The Biden administration and Congress are keeping close watch
Section 230 has brought the unique shared criticism from lawmakers across the aisle. Both President Biden and former President Trump called for it to be repealed in some fashion. In Congress, the protection has been slammed from the far-right to the left but with each side raising seemingly opposite concerns.
Democrats say companies need to do a more aggressive job at removing hate speech and dangerous disinformation, and the provision protects them from being held accountable when they don’t. Republicans, however, accuse the companies of removing too much content in a way they allege censors content using an anti-conservative bias, and that the provision protects them from being held accountable.
“The plaintiffs in the case, and even the government in the case and the amicus briefs, everybody seems to be struggling with how to draw a line when a platform adds value to third-party content,” Schwinn said.
Sen. Josh Hawley (Mo.), one of the most outspoken GOP tech critics in Congress, filed a brief arguing the court should not interpret that Section 230 protects Google in this case. Hawley said the provision “allows platforms to escape any real accountability for their decision-making.”
“Congress never intended that result, and the text Congress wrote does not compel it,” he wrote.
Sen. Ron Wyden (D-Ore.) and former Rep. Chris Cox (R-Calif.), original co-authors of Section 230, however, filed a brief arguing the provision should protect Google in the case.
“Section 230 protects targeted recommendations to the same extent that it protects other forms of content curation and presentation. Any other interpretation would subvert Section 230’s purpose of encouraging innovation in content moderation and presentation,” they wrote.
The Department of Justice (DOJ) filed an amicus brief in December warning the Supreme Court against using an “overly broad” interpretation of the provision.
“The Court should give Section 230(c)(1) a fair reading, with no thumb on the scale in favor of either a broad or a narrow construction,” the DOJ said in the brief.