On February 21 and 22, the U.S. Supreme Court heard oral arguments in Gonzalez v. Google and Twitter v. Taamneh, two cases that could reshape online speech and content moderation.
The two cases could determine whether tech companies can be sued for what is recommended to consumers on their platforms, especially as pertains to terrorist-connected content. Each case revolves around Section 230 of the Communications Decency Act, passed in 1996, which outlines some broad protections for tech platforms.
Section 230 has been hotly debated in recent years, with some critics arguing it grants tech platforms too much power and the ability to censor certain content. Others have claimed the act protects tech platforms from liability for misinformation and hate speech on their platforms, leading them to fail to do enough to prevent harmful speech and violence.
Gonzalez v. Google relates to the discussion on whether tech platforms are liable for allegedly supporting international terrorism by hosting terrorist content. In 2015, Nohemi Gonzalez was killed by ISIS operatives in the Paris attacks.
The plaintiffs, who are relatives of Gonzalez, allege that YouTube’s recommendation of ISIS-related content makes it a co-creator of the content. YouTube is a subsidiary of Google.
Gonzalez v. Google is the first time that Section 230 of the Communications Decency Act has been challenged at the Supreme Court, as reported by CNN. The Communications Decency Act has remained mostly unchanged for nearly thirty years.
On Tuesday, The Supreme Court heard oral arguments for Gonzalez v. Google. During the hearing, some justices commented that they were confused about the argument being made by the Gonzalez family.
“I guess I’m thoroughly confused,” Justice Ketanji Brown Jackson told Eric Schnapper, the attorney representing the Gonzalez family, per The Hill.
Justice Elena Kagan later commented, in reference to the nine Supreme Court justices, “These are not, like, the nine greatest experts on the internet,” The Hill reported.
Justice Brett Kavanaugh voiced concerns that ruling in favor of the Gonzalez family could result in many more lawsuits. Kavanaugh argued potential changes should be evaluated by Congress instead.
“Isn’t it better … to put the burden on Congress to change that, and they can consider the implications and make these predictive judgments?” he asked, addressing Deputy Solicitor General Malcolm L. Stewart, as reported by The Washington Post. Stewart, who sided in part with the plaintiffs, was in court representing the Justice Department.
Twitter v. Taamneh relates to two separate acts, the Anti-Terrorism Act (ATA) and the Justice Against Sponsors of Terrorism Act (JASTA), as reported by Lawfare. The case revolves around whether social media platforms can be sued for aiding and abetting acts of terrorist groups if the platforms have hosted user content that supports the group without reference to the specific terroristic act.
The plaintiffs in the case are family members of Nawras Alassaf, who was killed in 2017 during an ISIS attack on Istanbul. They allege that social media companies, including Twitter, knowingly allowed the group to post terrorist content that violated the terms of use agreement. Twitter argues it did not “knowingly” allow the content and that ISIS’ use of the platform does not confirm this.
The Supreme Court heard oral arguments for Twitter v. Taamneh on Wednesday. During the hearing, some Supreme Court justices seemed skeptical of the argument made by the attorney for Nawras Alassaf’s family.
Justice Kavanaugh suggested that Twitter may not be liable due to the size of the company.
“When there’s a legitimate business that provides services on a widely available basis … it’s not going to be liable under this statute even if it knows bad people use its services for bad things,” said Kavanaugh, per The Washington Post.
Justice Samuel Alito seemed to agree with Kavanaugh’s statement and related it to a telephone company.
He suggested a hypothetical situation, questioning what would happen if a telephone company “knows that a particular person is — has a criminal background and is probably engaging in criminal activity and is using the phone to communicate with other members of that person’s gang. Is that aiding and abetting the crimes that they commit?” he asked, as reported by The Washington Post.
Justice Sonia Sotomayor offered some pushback to Twitter’s lawyer, Seth Waxman. Waxman claimed that in order to meet the anti-terrorism law’s standard for liability, Twitter would have to knowingly provide substantial assistance.
Sotomayor claimed that an argument could be made that Twitter did have knowledge “because willful blindness is something we have said can constitute knowledge,” as reported by CNBC.
The debate about what tech and social media companies can allow on their platform has been growing in recent years. Recently, three high-level Twitter officials answered questions from the U.S. House Committee on Oversight and Accountability regarding the alleged censorship of a story by the New York Post, as previously reported by The Dallas Express.