Why Big Tech will lose its Supreme Court case on section 230
The Supreme Court’s oral argument in Gonzalez v. Google left most observers in a muddle over the likely outcome. In three hours of questioning, the Justices defied partisan stereotypes and asked excellent questions, but mostly just raised doubts about how they intended to resolve the case. I had the same problem while listening to the argument in for a Cyberlaw Podcast episode (No. 445) that will be mostly devoted to Gonzalez.
But after going back to look at each Justice’s questions separately, I conclude that we do in fact have a pretty good idea how the case will turn out: Gonzalez will lose, and so will Google, whose effort to win a broad victory is likely to be killed – and most enthusiastically by the Court’s left-leaning Justices.
First, a bit about the case. Gonzalez seeks to hold Google liable because the terror group ISIS was able to post videos on YouTube, and YouTube recommended or at least kept serving those videos to susceptible people. This contributed, the complaint alleges, to a terror attack in Paris that killed Gonzalez’s daughter. Google’s defense is that section 230 makes it immune from liability as a “publisher” of third-party content, and that organizing, presenting, and even recommending content is the kind of thing publishers do.
I should say up front that I am completely out of sympathy with Google’s position. I was around when section 230 was adopted; it was part of the Communications Decency Act, which was designed to protect children from indecent content on the internet. The tech companies, which were far from being Big Tech at the time, hated the decency part of the bill but couldn’t beat it. Instead, they tried to turn the decency lemon into lemonade by asking for relief from a recent defamation ruling that online services who excluded certain content were the equivalent of publishers under defamation law and thus liable for any defamatory third-party content they distributed. Services like AOL and Compuserve pointed out the irony that they were being punished for their effort to build family-friendly online communities—the opposite of what Congress wanted. “If you want us to exclude indecent content,” they argued to Congress, “you have to immunize us from publisher liability when we do that.” That was and is a compelling argument, but only for undoing publisher liability under defamation law. To my mind, that’s exactly what Congress did when it said, “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.”
But that’s not how the courts have read section 230. Seduced by a transformative technology and by aggressive, effective advocacy, the courts read this language to immunize online providers for doing anything that publishers can be said to do. This immunity goes far beyond defamation, as the Gonzalez case shows. There, Google said it should be immune because deciding what content to show or even recommend to users is the kind of thing a publisher does. Of course, carried to its logical extreme, this means that what are now some of the richest companies in the world cannot be held liable even if they deliberately serve how-to-kill-yourself videos to the depressed, body-shaming videos to the anorexic, and ISIS videos to extremists.
So, why not just correct the error, narrow the statutory interpretation to its original purpose, and let Congress actually debate and enact any other protections Big Tech needs? Because, we’re told, these companies have built their massively profitable businesses on top of the immunity they sold to the courts. To change now, after twenty-six years of investment, would be disruptive – perhaps even catastrophic. That in a nutshell is the dilemma on whose horns the Court twisted for three hours.
It is generally considered professional folly for appellate lawyers to predict the outcome of a case based on the oral argument. In fact, this is only some
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