Supreme Court torn over challenge to Section 230 internet legal shield

Supreme Court justices on Tuesday expressed uncertainty over whether to narrow a legal shield protecting internet companies from a wide array of lawsuits in a major case involving YouTube and the family of an American student fatally shot in a 2015 rampage by Islamist militants in Paris.

The justices asked questions that reflected their concerns about the potential consequences of limiting immunity for internet companies – or figuring out where to draw that line – while also revealing skepticism that these businesses should be shielded for certain types of harmful or defamatory content.

“These are not the nine greatest experts on the internet,” liberal Justice Elena Kagan said of the members of the court, eliciting laughter in the courtroom.

Justices heard arguments in an appeal by the family of Nohemi Gonzalez, a 23-year-old student at California State University, Long Beach who was studying in France, of a lower court’s dismissal of a lawsuit against Google-owned YouTube. Google and YouTube are part of Alphabet.

This case marks the first time the Supreme Court is examining the scope of  Section 230 of the Communications Decency Act of 1996, which protects internet companies from liability for content posted by their users.

The family claimed that YouTube, through its computer algorithms, unlawfully recommended thumbnails of videos by the Islamic State militant group, which claimed responsibility for the Paris attacks that killed 130 people, to certain users. The recommendations helped spread Islamic State’s message and recruit jihadist fighters, the lawsuit said. 

“Our contention is the use of thumbnails is the same thing under the statute as sending someone an email and saying, ‘You might like to look at this new video now,’” argued Eric Schnapper, the attorney representing the slain student’s parents, Beatriz Gonzalez and Jose Hernandez. 

Kagan replied: “Your position has gone further than I thought.”

Justice Clarence Thomas also was befuddled by Schnapper’s contention.

“I’m trying to get you to explain to us how something that is standard on YouTube for virtually anything that you have an interest in suddenly amounts to aiding and abetting because you’re in the ISIS category,” Thomas told Schnapper.

Justices also grilled Google’s attorney Lisa Blatt about whether Section 230 protects tech companies from content that is defamatory – even if it is created by a third party.

Blatt told the justices that harmful content should be blamed on the creator, not on the company that hosts it.

Justice Samuel Alito asked Blatt: “Would Google collapse and the internet be destroyed if YouTube and therefore Google were potentially liable for hosting and refusing to take down videos that it knows are defamatory and false?”

Blatt responded, “Well, I don’t think Google would. I think probably every other website might be because they’re not as big as Google.”

Conservative Chief Justice John Roberts questioned whether Section 230 should apply given that recommendations are provided by YouTube itself. “The videos don’t just appear out of thin air, they appear pursuant to the algorithms,” he said.

Justice Brett Kavanaugh hinted that the court may well punt on the issue and leave altering Section 230 to Congress.

“Isn’t it better…to keep it the way it is, for us…to put the burden on Congress to change that and they can consider the implications and make these predictive judgments?” Kavanaugh asked US Deputy Solicitor General Malcolm Stewart, who is arguing on the side of the Gonzalez family.

There is bipartisan support in Congress for making changes to Section 230.

The high court is expected to render its decision by the end of June.