Supreme Court Today: Gonzalez v. Google
[guest post by Dana]
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
Hello.
Dana (1225fc) — 2/21/2023 @ 11:46 amNowhere in the post or in the linked story is there any mention of the incident that drives this lawsuit.
Nohemi Gonzalez was one of over a hundred people killed in the 2015 Paris terror attack, an attack incited by terroristic videos amplified by warped YouTube algorithms. There should be some accountability for trafficking and making a profit off such content.
But as we’ve already seen, incitement of violence only seems be a concern when it’s directed at elected officials.
JF (e6556b) — 2/21/2023 @ 12:27 pm“Most of the lawsuits will fail” is a disingenuous argument.
Just the threat of a lawsuit will cause people to give in to shakedown artists.
More people suing each other is not the cure for what ails America.
norcal (7345e5) — 2/21/2023 @ 1:16 pm“I admit I’m completely confused by whatever argument you’re making at the present time,” Justice Samuel Alito said.
Confused? ‘The Shadow’ knew; ‘The Leaker’ knows…
“Confused? Damn-it, un confuse ’em!”- Walter Short [Jason Robards] ‘Tora! Tora! Tora!’ 1970
DCSCA (7c12ab) — 2/21/2023 @ 1:26 pmThe existential part of Section 230 is whether it was ever intended to address topics outside the subject matter of the Communications Decency Act. Certainly it allows websites to purge pornographic material, but there is really nothing that clearly says they can purge political speech as nothing in the Act talked about that.
I think that this is going to be strictly ignored, as too much has build built on this edifice, but Congress really needs to revisit this at some time they can do it without playing to the crowd.
Kevin M (1ea396) — 2/21/2023 @ 1:34 pmPrediction: Vote 8-1 for the web giants. Maybe DIG.
Kevin M (1ea396) — 2/21/2023 @ 1:37 pmYou can bet a lot of political websites (right and left ) could be sued out of existence for defamation based on their posted comments.
Rip Murdock (d2a2a8) — 2/21/2023 @ 1:39 pmLOL! Congress always plays to the crowd.
Rip Murdock (d2a2a8) — 2/21/2023 @ 1:40 pmThe crowd with the largest campaign contributions, that is.
Rip Murdock (d2a2a8) — 2/21/2023 @ 1:40 pmFrom the CNN article linked by Dana:
There goes Twitter.
Rip Murdock (d2a2a8) — 2/21/2023 @ 1:53 pmSecond paragraph:
It may not include all the particulars, but it made it clear that the case was related to her death in an ISIS attack.
Rip Murdock (d2a2a8) — 2/21/2023 @ 1:57 pmGonzalez has not alleged that the terrorists ever viewed YouTube. From Google’s brief (page 13):
Rip Murdock (d2a2a8) — 2/21/2023 @ 2:23 pm“Lawsuits will be nonstop,” Justice Brett Kavanaugh said at one point.
Ever in character: just like a 24/7 beer tap, eh Brett.
DCSCA (fc15e5) — 2/21/2023 @ 2:30 pmHere’s a live-blog of the oral arguments by Kate Klonick, Mary Anne Franks, Mike Godwin, James Grimmelmann, Gus Hurwitz, Jeff Kosseff, Emma Llanso, Alan Rozenshtein, Eugene Volokh, Ben Wittes and Jonathan Zittrain. As with most live blogs, the top of the page is the end, so scroll to the bottom to read chronologically.
lurker (cd7cd4) — 2/21/2023 @ 3:17 pmpeople only need to know what mr. jeff bezo and mr. keith rupert murdock want them to know and everything else is just conspicuous consumption
nk (5daf94) — 2/21/2023 @ 6:27 pmIANAL, so I am curious how you can sue someone for something that you don’t allege that they took any actions to do.
Nic (896fdf) — 2/22/2023 @ 10:37 pmThey are alleging that Google et al failed to take actions that they should have taken — negligence. After hijackings, people would sue airlines for lax security.
Kevin M (1ea396) — 2/22/2023 @ 10:50 pmI look forward to their proof of causation.
lurker (cd7cd4) — 2/23/2023 @ 2:35 amThere’s a federal statute that creates a private cause of action for providing assistance to terrorists.
Even if the ambulance chasers get past Section 230, they will still have to get past the First Amendment “clear and present danger” test.
nk (e70658) — 2/23/2023 @ 4:21 amObama was able to lock up the Benghazi video-maker only because he was on parole and not allowed to post on the internet at all, and by lying a lot.
nk (e70658) — 2/23/2023 @ 4:44 amLet’s suppose that Twitter and the others hosted accounts by a prominent politician who used those accounts to assert that the upcoming election was going to be stolen and that they should prepare to contest the election’s validity by arming themselves.
Later, after the election, a sizable body of the politician’s supporters attacked the US Congress while it was in session after listening to an exhortation by the same politician.
Question: Is Twitter liable? Do they get credit for blocking the politician’s use of Twitter after the first part above, but before the second? Can they avoid a “deep pockets” assessment after the politician turns up bankrupt again?
Kevin M (1ea396) — 2/23/2023 @ 9:35 amIANAL, but I think that unless there is a specific statute like the Anti-Terrorism Act or 18 U.S. Code § 2333 (both of which do not apply to “domestic terrorism”) that provides a cause of action, then Twitter would not be liable.
Rip Murdock (d2a2a8) — 2/23/2023 @ 9:53 amOK, limit the plaintiff to a Congressional staffer who was injured.
Kevin M (1ea396) — 2/23/2023 @ 9:56 amSame answer. Twitter would not be liable, but the tweeter could be sued. See also here.
Rip Murdock (d2a2a8) — 2/23/2023 @ 10:04 amTwitter (and Facebook, Instagram, Patterico’s Pontifications, Free Republic, etc.) still have Section 230 immunity from lawsuits over what their users post.
Rip Murdock (d2a2a8) — 2/23/2023 @ 10:08 am@22. It’s unlikely anyone would be liable. The incitement exception to the First Amendment applies only to speech that’s intended and likely to produce imminent lawless action. At the very least, your hypothetical fails the imminence test.
lurker (cd7cd4) — 2/23/2023 @ 1:26 pmRip Murdock (d2a2a8) — 2/23/2023 @ 10:08 am
Well, the issue is directing people to specific posts. But the court, if it upheld the suit, is unlikely to be able to give sites abright line on what to avoid.
I think, at a minimum, it has to be something that is predictable in advance would likely lead to a crime.
Sammy Finkelman (1d215a) — 2/23/2023 @ 2:16 pm