Preparing for the Supreme Court’s Gonzalez v. Google Oral Arguments

Tomorrow, the Supreme Court will hear oral arguments in the Gonzalez v. Google case. I am NOT looking forward to this at all. First, I expect the arguments will go poorly for free speech and the Internet’s status quo. It’ll be a first-hand seat to watch the Internet die. Second, coverage of the oral arguments will be overwhelmed by the misguided and erroneous bloviating by so-called experts (such as the “national security experts”) who are new to Section 230 and don’t understand the law–or care about free speech or freedom–at all. It will also be marred by Section 230 critics who have a different value system than I do and who will gleefully celebrate the Internet’s destruction. Between the n00bs and the haters, it’s going to be a tough day for information credibility. Expect the anti-Big Tech rhetoric and pro-censorship cheering to dominate the coverage, even though the case is really about whether we can talk with each other online.

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To try to inject some credible information into the misinformation miasma, I’m participating in several post-oral argument events:

1) Very shortly after oral arguments are over, I will participate in a press conference to share some media-friendly quotes about the oral argument with reporters covering the case on deadline. Free RSVP.

2) On Wednesday at 10am Pacific, I’ll be on a Bipartisan Policy Center panel. Free RSVP.

3) On Wednesday at 5pm Pacific, Santa Clara Law’s Internet Law Student Organization will have a reaction panel featuring some of SCU’s top Internet Law student-experts. Details.

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If you’re relatively new to Section 230, I strongly encourage you to read my Section 230 primer. It may not help you make sense of the oral arguments because the plaintiffs’ arguments are crazy and atextual, but it will give you the foundation to be more confident that it’s them and not you when it sounds like the plaintiffs and justices have gone off the rails.

If you want to dig a little deeper, you can check out my amicus brief in the case. It explains why the First Amendment will not adequately backfill any holes that the Supreme Court rips open in Section 230’s immunity.

If you want to dig even deeper into Section 230, go nuts with the links on this page.

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To whet your appetite for my comments tomorrow, I did a short interview previewing the oral arguments:

What is the ideal outcome from Gonzalez? 

The best possible outcome is that the Supreme Court preserves the legal status quo and user-generated content survives for a little longer.

What do you think the Petitioners get wrong, and what intervention does your brief make on this issue?

My brief focuses on the interplay between Section 230 and the First Amendment. Substantively, First Amendment doctrines may yield some (but not all) of the same outcomes as Section 230. However, compared to the First Amendment, Section 230 acts as a procedural fast lane to reach those outcomes. My brief explains how Section 230’s procedural benefits are critical to Section 230’s efficacy, and why turning more cases into Constitutional litigation will have numerous negative effects.

What might the court get wrong in this case? How would the web and social media change?

Any change to the Section 230 status quo will shrink the Internet–likely dramatically. Current publishers of user-generated content will take away the power to publish from many or all of their existing user-authors. Some of those publishers will switch to publishing professionally produced content. Collectively, those developments will reduce the opportunities for authors and creators from marginalized communities and lead to paywalls that will deepen digital divides. [for more on this point, see this short piece]

This case has drawn attention because of its potential implications for recommendation algorithms and content moderation on social media platforms.  What other fields and domains might the holdings in this case unexpectedly shape? 

A good example is the online advertising market, which depends heavily on “targeted recommendations” that are currently protected by Section 230. If Section 230 no longer applies to that advertising, it will raise the cost of advertising, reduce the quantity of ads run, and likely substantially reduce the revenue earned by ad-supported publishers. The revenue decreases would mean less content would be freely available to consumers and less content overall would be generated.

Is judicial interpretation the best way to go about resolving these questions, or would you prefer congressional intervention, however unlikely?  What would that congressional intervention look like, and how might it differently tailor the immunities currently provided by 230?

Congress is also excited to undercut the Section 230 status quo. This reinforces how unlikely it is that the Internet will survive these government attacks intact.

Who do you think will win? 

I’m not sure who will win the court decision, but the odds are high that most Internet users will feel like they lost.

Where do you think we will be on these issues ten years from now?

I think Web 2.0 will be a fond but distant memory of Gen Xers and Millennials. In ten years, instead of talking to each other online, we will be paying hundreds or thousands of dollars a year to access paywalled content databases available over the Internet, which to Gen Alpha will be the only form of the Internet they ever knew.