The Supreme Court has acknowledged its limited expertise in matters concerning the internet, particularly Section 230, and has suggested that the responsibility of determining the future of the web should be left to Congress. This is evident in the Court’s handling of two cases this week, including Gonzales vs Google.
After nearly three hours of arguments, it was clear that the justices had no idea.
The case before the justices was initially brought by the family of Nohemi Gonzalez, a US student who was killed in a Paris bistro in 2015 after ISIS terrorists opened fire. Now, her family seeks to hold YouTube, a subsidiary of Google, liable for her death because of the site’s alleged promotion – through algorithms – of terrorist videos.
The family sued under a federal law called the Antiterrorism Act of 1990, which authorizes such lawsuits for injuries “by reason of an act of international terrorism.”
Lower courts dismissed the challenge, citing Section 230 of the Communications Decency Act of 1996, the law that has been used for years to provide immunity for websites from what one justice on Tuesday called a “world of lawsuits” that stem from third-party content.
The Gonzalez family argues that Section 230 does not protect Google from liability when it comes to targeted recommendations.
On several occasions, the justices said they were confused by the arguments before them – a sign that they may find a way to dodge weighing in on the merits or send the case back to the lower courts for more deliberations. At the very least they seemed spooked enough to tread carefully.
“I’m afraid I’m completely confused by whatever argument you’re making at the present time,” Justice Samuel Alito said early on. “So, I guess I’m thoroughly confused,” Justice Ketanji Brown Jackson said at another point. “I’m still confused,” Justice Clarence Thomas said halfway through arguments.
Justice Elena Kagan even suggested that Congress step in. “I mean, we’re a court. We really don’t know about these things. “You know, these are not like the nine greatest experts on the internet,” she said to laughter.
US Deputy Solicitor General Malcolm Stewart argued in the hearing that the Supreme Court should direct the lower courts to consider the case further. However, the Supreme Court was not convinced.
“You’re asking us right now to make a very precise predictive judgment that ‘Don’t worry, that it’s really not going to be that bad,'” Justice Kavanaugh replied. “I don’t know that that’s at all the case. And I don’t know how we can assess that in any meaningful way.”
