According to Supreme Court Justice Elena Kagan, the case of Google v. Gonzalez had the potential to end the internet. Predictably, it didn’t. In a unanimous ruling yesterday, the Supreme Court dodged that bullet. The case asked the Court to consider whether a website—YouTube, Facebook, Twitter, etc.—can be sued when it hosts dangerous content. The Supreme Court said it can’t—at least not in this case.
Here, YouTube’s algorithm permitted ISIS recruitment videos to pop up during searches and in its “Up Next” feature. The family of a woman killed during the 2015 Paris terrorist attacks sued, arguing that YouTube’s actions constituted aiding and abetting terrorism.
The case presented the Court with two big questions. First, whether providing a website that does not intentionally help terrorists is technically “aiding and abetting” terrorism. (I know it sounds crazy, but a California-based court said “yes.”) Second, the Court was asked to consider whether, even if YouTube did “aid and abet” terrorism, YouTube is nevertheless insulated from lawsuits under a law known as Section 230.
The second question was the big one. Internet platforms have argued forcefully that they must be insulated from lawsuits if they are to be guardians of free speech. With Section 230 in place, I can sue a person who defames me on Twitter, but I can’t sue Twitter for hosting the defamatory speech. Without Section 230, plaintiffs’ lawyers get to purchase their second private jet, because Big Tech becomes a litigation gold mine.
Unfortunately for all those plaintiffs’ lawyers, the Court only answered the first question. It said, “The point of aiding and abetting is to impose liability on those who consciously and culpably participated in the tort at issue.” That just does not describe Twitter or YouTube’s involvement in terrorist attacks (which is not to say every website is so benign). Because these cases were duds, there was no reason to answer the bigger question about the scope and protections of Section 230.
Now, this outcome may on its surface dismay many conservatives, who seek to bash Big Tech with a hammer for its role in cancel culture. But remember, this lawsuit requested more censorship, not less. As YouTube said in its brief, where websites are pressured to “remove third-party content that might trigger litigation,” they will allow even less “political (including conservative-leaning) speech on hot-button topics.” I don’t love the threat, but it’s grounded in practical reality.
So Section 230 lives to fight another day. But when the time comes to replace it (which was frankly years ago) we should, at a minimum, hope the revamp is done by elected officials well-versed in technology and not the unelected, and largely elderly, Supreme Court. The consequences could be massive.