A group autopsy of the Supreme Court’s oral argument on section 230
As promised, the Cyberlaw Podcast devoted half of this episode to an autopsy of Gonzalez v Google LLC , the Supreme Court’s first opportunity in a quarter century to construe section 230 of the Communications Decency Act. And an autopsy is what our panel – Adam Candeub, Gus Hurwitz, Michael Ellis and Mark MacCarthy – came to perform. I had already laid out my analysis and predictions in a separate article for the Volokh Conspiracy, contending that both Gonzalez and Google would lose.
All our panelists agreed that Gonzalez was unlikely to prevail, but no one followed me in predicting that Google’s broad immunity claim would fall, at least not in this case. The general view was that Gonzalez’s lawyer had hurt his case with shifting and opaque theories of liability, that Google’s arguments raised concerns among the Justices but not enough to induce them to write an opinion in such a muddled case.
Evaluating the Justices’ performance, Justice Neil Gorsuch’s search for a textual answer drew little praise and some derision while Justice Ketanji Jackson won admiration even from the more conservative panelists.
More broadly, there was a consensus that, whatever the fate of this particular case, the Court will find a way to push the lower courts away from a sweeping immunity for platforms and toward more nuanced protection. But because returning to the original intent of section 230 is not likely after 25 years of investment based on a lack of liability, this more nuanced protection will not have much grounding in the actual statutory language. Call it a return to the Rule of Reason.
In other news, Michael summed up recent developments in cyber war between Russia and Ukraine, including imaginative attacks on Russia’s communications system. I ask whether these attacks – which are sexy b
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