What’s Speech Got to Do With It? Supreme Court Justices Say Little About Users’ Free Speech in Internet Speech Cases Gonzalez and Taamneh
The dust has settled on the Supreme Court’s oral arguments in Gonzalez v. Google and Twitter v. Taamneh, two cases with the potential to reshape the legal liability regime for online intermediaries — and, with it, the free expression rights of internet users. In addition to revealing the justices’ possible YouTube search histories (light jazz, rice pilaf, and cat videos were all mentioned at one point), the oral arguments shed light on what the Court thinks about Section 230 and whether and when online intermediaries should be liable for their users’ speech. Here are three key takeaways from the arguments to help understand where the Court may be headed while we wait for its ultimate decision.
A disturbing lack of focus on users’ speech and free expression. Both Gonzalez and Taamneh raise significant issues for Internet users’ freedom of speech. If the Court materially limits Section 230’s liability shield or interprets the Anti-Terrorism Act (ATA) to allow for liability of intermediaries that fail to remove all terrorist content, the consequences for people’s online speech could be devastating, as CDT explained in its amicus briefs in Gonzalez and Taamneh. Fearing liability, many companies would restrict the topics users could discuss or aggressively remove user content, including constitutionally protected and valuable speech like news reporting or other documentation of terrorist acts, statements condemning terrorism, or anti-radicalization materials. Some companies may decide not to host user speech at all, decreasing the forums available for user speech and cementing the dominance of big tech platforms.
Despite the potential for dire consequences for user speech, this issue barely registered at the oral arguments. During the Gonzalez argument, some justices asked questions about the potential economic impact of the Court’s decision, and whether changing the longstanding interpretation of Section 230 could “crash the digital economy,” as Justice Kavanaugh put it. And other justices raised fears about a flood of litigation against tech companies. But no justice asked questions directly about how its decision could alter online free expression or impact users’ speech. (The only question explicitly considering the impact on users at all came from Justice Barrett, who asked whether a user who retweets an ISIS video could be potentially liable for aiding and abetting a terrorist organization under the ATA.)
During Taamneh, the justices aimed many questions at the issues of when banks and pharmaceutical companies could be liable under the ATA, seemingly without recognizing a crucial distinction between those companies and online intermediaries: that the core function of online intermediaries is to facilitate user speech. Justice Kavanaugh asked the lone question driving at free expression concerns, when he asked plaintiffs whether CNN could be held liable under the ATA for aiding and abetting the 9/11 attacks because it aired an interview with Osama bin Laden in 1997. Plaintiffs conceded that the First Amendment would bar liability in that instance, without acknowledging that the First Amendment has a critical role to play in the Court’s interpretation of the ATA in Taamneh as well, as CDT and a coalition of free expression groups argued in our amicus brief.
Searching, without success, for a line to draw. Over and over during the Gonzalez oral argument, the justices asked plaintiffs to help them draw a line between what should be immunized by Section 230 and what shouldn’t be. How is an algorithm that recommends pilaf videos to users based on their interests different from one that recommends ISIS videos to users based on their interests? Does it matter if the algorithm is “neutral” and operates the same across subject matters? How can search results be immunized under plaintiffs’ interpretation of Section 230 if the results are prioritized in any way? Most of the justices posed variations on this line drawing question, and the plaintiffs’ answers – and those of the United States – left them confused.
This search for a line to draw shows that the Court was grappling with the fact that any decision it makes in this case could have broad impacts, since recommendations are “endemic” to the internet, as Justice Kagan said. The justices wanted plaintiffs and the U.S. government to tell them how it could narrow Section 230 in a way that it would not apply to YouTube in this case, while ensuring that it did not upend the liability shield for vast swaths of the internet, and they seemed to come away dissatisfied with the plaintiffs’ and government’s suggestions.
Still, the Court may attempt to narrow Section 230 and draw its own line delineating when Section 230 applies to “recommendation” and when it does not. This result could have dangerous implications for online free expression, as plaintiffs will seize on the inevitable lack of clarity to argue that their cases are on the side of the line to which Section 230 does not apply, potentially opening the floodgates to litigation that will chill intermediaries’ willingness to host users’ speech.
Some of the justices were particularly focused on the idea of an algorithm that discriminates among users, asking both plaintiffs and Google about a hypothetical dating app that has an algorithm that discriminates against users based on their race, and whether that should be immunized. This hypothetical — which is not entirely hypothetical and has arisen in other contexts, such as housing ads — is not directly at issue in Gonzalez, but indicates a potential area that the Court may want to explore in future cases, or, more troublingly, in dicta in its decision here.
No obvious partisan divides among the justices. Going into the arguments, little was known about most of the justices’ positions on Section 230. The big exception was Justice Thomas, who has written repeatedly about how he believes Section 230 has been interpreted too broadly by lower courts. Some wondered whether the justices would mirror congressional debates about Section 230 and approach the statute through a partisan lens, with right-leaning justices focused on concerns about over-removals of conservative voices online and left-leaning justices focused on concerns about under-removals of undesirable content like disinformation or hate speech.
The justices did not, however, bring an overtly partisan perspective to the Gonzalez oral arguments. Even Justice Thomas began the argument with a question that belied skepticism about the plaintiffs’ interpretation of the law.
Interestingly, Justice Jackson’s questions revealed that, as Justice Thomas has indicated in his past writings, she may be interested in significantly altering Section 230’s long-standing interpretation. Justice Jackson questioned Google’s counsel about whether Congress’s intent in passing Section 230 was simply to “protect those Internet platforms that were in good faith blocking and screening offensive material.” She suggested that Section 230 provides a narrow immunity that does not speak to recommendations at all, with Section 230(c)(1) ensuring that intermediaries are not “automatically” liable for hosting content on their services and Section 230(c)(2) protecting them when they remove content. This interpretation of Section 230, if adopted by the Court, would entirely upend decades of lower court precedent and could make online intermediaries both more reluctant to host users’ speech and to engage in content moderation, and it was surprising to hear Justice Jackson advance an option that could lead to this outcome.
It could be that the justices are saving their most partisan and biting questions about online speech for two other cases pending before the Court, NetChoice v. Paxton and NetChoice v. Moody. Those cases, which involve the extremely political Texas and Florida social media laws, may give the justices another bite at the apple when it comes to opining broadly about whether and how the government should be involved in regulating online free expression. Most recently, the Court asked the Solicitor General to weigh in on the cert petition in Moody, which means the Court likely will not decide whether to grant cert in either case until next term.
Ultimately, it is impossible to predict how the Court will rule in Gonzalez and Taamneh based on oral arguments. As the justices write their opinions, however, it is essential that they center the free expression rights of individual internet users in their analyses. It’s promising that the Court didn’t wallow in partisan debates about Section 230 and asked questions that revealed a level of technical sophistication and understanding. But without an appreciation of the stakes of these cases for users’ speech, the Court risks undermining the legal regimes that have made the internet an essential forum for free expression.
