[guest post by Dana]

Takeaways from today:

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 who want to hold Google accountable for suggesting YouTube videos created by terrorist groups…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….A big concern of the justices seems to be the waves of lawsuits that could happen if the court rules against Google.

“Lawsuits will be nonstop,” Justice Brett Kavanaugh said at one point.

But Eric Schnapper, representing the plaintiffs, 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 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.

Meta, Twitter, Microsoft and others urge Supreme Court not to allow lawsuits against tech algorithms
“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.

“I wouldn’t necessarily agree with ‘there would be lots of lawsuits’ simply because there are a lot of things to sue about,” Stewart said, “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.”

This:

Constricting Section 230’s liability protections is also likely to backfire. Section 230 does not protect only large platforms; it protects all platforms. Upstart social-media sites like Gab, Parler, and Rumble enjoy the same protections as Facebook and Twitter.

If Section 230 no longer protects automated recommendation systems, upstarts will likely suffer the most. Even setting aside the plain text of Section 230, then, its protections for automated recommendation systems should be preserved as a matter of sound policy. Such protections nurture today’s startups, benefit our economy, and help generate jobs.

–Dana