SCOTUS Hears Section 230 Challenge

Happy Wednesday! We warned you last week we’re going to have to keep a close eye on Florida’s upcoming legislative session. If Democratic State Sen. Lauren Book’s proposed bill prohibiting dogs from extending their “head or any other body part outside a motor vehicle window” becomes law, we’re going to have some issues.

Quick Hits: Today’s Top Stories

• In his annual State of the Union speech Tuesday, Russian President Vladimir Putin announced plans to suspend Russia’s participation in the New START nuclear treaty—the last nuclear pact between Russia and the United States—and said Russia would resume nuclear tests if the U.S. does so. Meanwhile, the Russian Foreign Ministry summoned the U.S. Ambassador to Russia, Lynne Tracy, to Moscow over the United States’ “increasing involvement” in Ukraine’s war effort.
• New York Federal Judge George Daniels ruled Tuesday U.S. federal courts cannot seize $3.5 billion in frozen Afghan central bank funds to pay debts to the families of 9/11 victims who successfully sued for damages against the Taliban. The U.S. froze some $7 billion in U.S.-held Afghan central bank assets when the terrorist organization overtook Afghanistan in 2021, but Daniels held U.S. federal courts lack jurisdiction over the bank and its property.
• The Environmental Protection Agency on Tuesday ordered Norfolk Southern railroad to fund and carry out cleanup efforts after one of the company’s trains derailed earlier this month, spilling toxic chemicals in East Palestine, Ohio. If the rail transportation company fails to complete any part of the cleanup, the EPA plans to finish the job and charge the railroad three times the actual cost.
• The National Association of Realtors reported Tuesday the median existing-home sales price in the U.S. was $359,000 in January—down from a record $416,000 in June, but up 1.3 percent from January 2021—while sales of previously-owned homes declined for the 12th consecutive month, down 36.9 percent year-over-year.
• The National Labor Relations Board ruled Tuesday employers cannot condition severance packages on promises not to make disparaging comments about the former employer, declaring such agreements violated the National Labor Relations Act. The determination reverses two Trump-era decisions that did not find the conditional severance agreements to be unlawful.
• The U.S. Securities and Exchange Commission fined the Church of Jesus Christ of Latter-Day Saints and its investment arm $5 million on Tuesday for creating 13 shell companies to obscure its total financial holdings from the public. 
• Vivek Ramaswamy—biotech entrepreneur and author of Woke, Inc.—announced his bid for the Republican presidential nomination Tuesday on Tucker Carlson’s Fox News program. The Ohio native joins former President Donald Trump and former South Carolina Governor and U.N. Ambassador Nikki Haley in the race.
• Republican Reps. Don Bacon of Nebraska and Zach Nunn of Iowa are calling for an investigation after the Air Force released their service records without their consent during the 2022 midterm elections, Politico reported Tuesday. The Air Force informed Bacon in a letter his records had been shared with someone claiming they were doing an employment-related background investigation.
• Democratic Rep. Barbara Lee of California announced Tuesday she is running for Senate in 2024 to succeed Democratic Sen. Dianne Feinstein, who confirmed last week she will retire at the end of her term. Fellow Democratic Reps. Katie Porter and Adam Schiff have already jumped in the race, with former House Speaker Nancy Pelosi endorsing Schiff.
• Democratic Rep. David Cicilline of Rhode Island announced Tuesday he will leave Congress in June—part-way through his seventh term in Congress—to head up the Rhode Island Foundation. His departure won’t change the current partisan makeup of the House, as Virginia Democrat Jennifer McClellan won a special election on Tuesday to replace Rep. Don McEachin—who died in November—as representative for the state’s 4th Congressional District.

SCOTUS Ponders the Algorithms

Anyone else remember YouTube’s 2013 April Fool’s Day prank? The company declared its video sharing platform would shut down and judges would spend the next decade choosing the best video from the millions of hours of footage uploaded over the previous eight years.

We hope they follow up on that this April—they promised the winner an MP3 player!—but YouTube’s content decisions have now gone from the subject of an elaborate joke to an existential question before the Supreme Court. 

Yesterday, the Court heard oral arguments in Gonzalez v. Google, a case weighing whether the Google-owned video platform’s algorithmic recommendations render it legally responsible for the content it boosts to users. Legal analysts have said the case could hollow out Section 230: a foundational statute exempting tech companies from most liability for third-party content on their platforms. But during the arguments, several justices expressed their reluctance to issue a broad ruling, suggesting they may punt any major reinterpretation of “the 26 words that created the internet.”

Section 230 packs a powerful punch for one medium-length sentence: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Enacted in 1996 after a court found a website liable for hosting defamatory user content, the rule largely shields tech companies from liability for third-party content posted on their platforms—with exceptions for sex trafficking, stolen intellectual property, and violations of federal criminal law. It allows companies to leave content up—or take it down—without legally becoming a “publisher” and opening themselves to a flood of litigation. 

Decades later, many lawmakers on both sides of the aisle say it’s time to reform Section 230, though they tend to disagree about why and how. Republicans typically want to hold tech companies accountable for what they see as censorship of conservative speech, while Democrats generally advocate for stricter crackdowns on what they view as misinformation and/or harassment. The partisan divide has produced plenty of reform proposals, but no changes to the law—leaving courts to interpret the statute as it stands.

Enter Gonzalez v. Google. Relatives of Nohemi Gonzalez, a victim in a 2015 ISIS attack in Paris, allege Google is liable for her death because YouTube’s algorithmic video recommendations make it a co-content creator alongside the video makers behind radicalizing content, exempting the tech company from Section 230’s liability shield for third-party content. Deputy Solicitor General Malcom Stewart, representing the Biden administration, backed the plaintiff’s case. “The situation we’re concerned with is: What if a platform is able, through its algorithms, to identify users who are likely to be especially receptive to ISIS’s message?” Stewart asked. “What if it systematically attempts to radicalize them by sending more and more and more and more extreme ISIS videos?” This, he argued, would put Google outside Section 230’s shield.

But some legal scholars argue recommending content is essential publisher behavior—and Section 230 protects tech companies from being considered publishers of users’ posts, with attendant liability for what they publish. “The problem for the plaintiffs is that publishers are quintessentially recommending material to you, because they decide what material they want to publish,” said Anupam Chander, a professor at Georgetown University Law Center. “As one of the justices noted, putting it on page A-1 is something that a publisher does.” How is that different from showing a column of video recommendations or trending topics? Stewart argued the distinction is the targeting of individual users—a print newspaper shows every reader the same articles in the same order, unlike a personalized newsfeed. 

If you’re a bit lost, you’re not alone: “I’m afraid I’m completely confused by whatever argument you’re making at the present time,” Justice Samuel Alito told Gonzalez’s lawyer at one point. 

Google, meanwhile, argued the plaintiff’s interpretation of Section 230 would gut the rule’s intended protections. Without a liability shield, attorney Lisa Blatt reasoned, companies would be encouraged to either over-police content or touch nothing to avoid liability for difficult moderation decisions. Instead, Blatt argued, Section 230 protects platforms even if their algorithms recommend defamatory content uploaded by users—a defamation case originally triggered Section 230’s creation—because the content still isn’t the platform’s creation. A brief submitted by Section 230’s original authors—Oregon Sen. Ron Wyden and former congressman Christopher Cox—backed Google’s argument that the statute protects targeted recommendations.

Justice Clarence Thomas has previously urged his colleagues to take up a Section 230 case, arguing lower courts’ broad interpretations of its protections aren’t clearly supported in the statute. Yet even he appeared receptive to the U.S. Court of Appeals for the 9th Circuit’s  majority opinion in favor of Google, which concluded that Section 230 protects recommendations when they’re the result of neutral treatment. If the same algorithm ensures one user interested in cooking videos will see more cooking videos while one interested in ISIS propaganda will see more of that, Thomas reasoned, how can YouTube be responsible for what users are seeking out? 

But Justice Neil Gorsuch, ever the textualist, was less open to the idea of labeling an algorithm “neutral” and thereby not a form of content production. “The language isn’t anywhere in the statute, number one,” he said. “Number two, you can use algorithms as well as persons to generate content. So just because it’s an algorithm doesn’t mean it can’t generate content, it seems to me. And third, I’m not even sure any algorithm really is neutral. … Most algorithms are designed these days to maximize profits.”

Justices were upfront about their own limitations, expressing concern about unintended consequences throughout the morning. Would narrowing Section 230’s interpretation unleash a torrent of litigation crushing upstart companies without the legal resources of tech giants? Destroy companies’ business models built on the existing understanding of Section 230? Render search engines—and their algorithmically ranked results—entirely unusable? 

Justice Brett Kavanaugh suggested the Court might punt the issue to the legislative branch. “Isn’t it better to keep it the way it is, for us?” he asked. “To put the burden on Congress to change that and they can consider the implications and make these predictive judgments?” Justice Elena Kagan concurred, noting how much platforms have evolved since Congress wrote the statute. “Every time anyone looks at anything on the internet, there is an algorithm involved,” Kagan said. “This was a pre-algorithm statute, and everyone is trying their best to figure out how this statute applies [today].”

She didn’t seem to consider herself or her colleagues particularly well-equipped to do so. “You know, these are not like the nine greatest experts on the internet,” she said, eliciting some chuckles.

The caution makes sense—narrowing Section 230 could prove tricky, and a legislature could make more precise revisions than a SCOTUS ruling. “If the Court says that Section 230 is only for neutral tools, it’s easy to show that the algorithm is not neutral in a particular way that allows you to go to trial,” Chander said. “And if the Court says it doesn’t cover distributors, then it’s hard to know what is left of 230, because internet platforms are always in the business of distributing information.”

The very fact that the Court chose to take up this case suggests at least some justices besides Thomas are interested in revisiting Section 230’s interpretation. Justice Ketanji Brown Jackson seemed most willing to push back on Google’s vision of Section 230 during oral arguments, challenging whether the statute’s original focus on allowing platforms to take down harmful content applies to algorithmic recommendations.

But SCOTUS could also use a parallel case due to be argued today as a cop out—a possibility raised by Justice Amy Coney Barrett. In Taamneh v. Twitter, relatives of Nawras Alassaf, victim of a 2017 ISIS attack in Istanbul, allege that by allowing distribution of ISIS material, Twitter is liable for aiding and abetting terrorism. Twitter argues it would have had to know about specific accounts aiding with a particular attack—which the plaintiffs haven’t alleged it did.

The Gonzalez plaintiffs intend to pursue similar terrorism claims against Google, so ruling the claims of Taamneh invalid could clear the way for the Supreme Court to dispose of both cases without touching Section 230. “What they may choose to do is rule in favor of Google and Twitter, but on the grounds that, even if Section 230 doesn’t apply, they’re just not liable under the terrorism statutes,” said Alan Rozenshtein, an associate professor at the University of Minnesota Law School. “And that would allow them to avoid the 230 issue altogether.”

The justices’ caution on Tuesday seemed to indicate they were leaning toward this outcome. But either way, Rozenshtein said he doesn’t expect a sweeping ruling to gut Section 230. “You could really tell that the justices understood this case was really important, and it was really hard, and there were no obvious ideological lines,” Rozenshtein said. “It is, I think, almost certain that the Court is not going to go in guns blazing to limit Section 230.”

Worth Your Time

• As the one year anniversary of Russia’s invasion nears, the West has taken a historic, yet incremental, approach to arming Ukrainians against their aggressor. Debates over whether to send HIMARS, tanks, and F-16s have taken up most of the oxygen, but Matthew Kaminski believes they obscure the most important question facing Europe and the United States. “What outcome does the West want for Ukraine and, for that matter, Russia?” he asks in a piece for Politico Magazine. “These are hard decisions. The EU would be looking at many billions of euros in commitments to Ukraine. NATO would be looking to extend a formal security guarantee, possibly creating another Korea-style DMZ along Ukraine’s eastern frontier with Russia. Russia, and let’s not forget China, would be deterred from aggression elsewhere. Until the ‘Ukrainian question’ of this century is answered, presumably with an unambiguous statement of ultimate objectives followed by determined action, it’s hard to imagine enduring peace in Europe. This path carries grave risks for Europe and its American patron, but the alternative may be more unappealing. ” 

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Toeing the Company Line

• In the newsletters: Haley discusses Rep. Marjorie Taylor Greene’s call for a national divorce and Nick concedes he won’t agree with plenty Ron DeSantis says and does in the coming months. “If you’re a Republican defense hawk who believes Ron DeSantis is the last best hope to end Trump’s political career,” he writes in his latest Boiling Frogs (🔒), “prepare to spend many hours over the next 16 months convincing yourself that he’ll grow in office.”
• On the podcasts: Chris commandeers The Remnant to chat with CNN data reporter Harry Enten about the upcoming GOP primary.
• On the site: Alec looks at Microsoft’s role in developing China’s AI industry and Frederick Hess weighs in on debates surrounding AP African American Studies.

Let Us Know

Who should decide the fate of Section 230: the Court or Congress? Why?