Quick Debrief on the Gonzalez v. Google Oral Arguments

I’m going to crank this blog post out before I get swamped with press requests. My takeaways:

• I did not hear 5 votes in favor of the plaintiffs’ position. Indeed, the justices didn’t really engage with the plaintiffs’ core arguments much after their initial dismantling, which I take as a sign of their lack of persuasiveness. For that reason, I have a little optimism that Google will win the votes–much more so than yesterday.
• I remain unclear why the court granted cert in this case. The plaintiffs’ arguments were so weak that the justices really didn’t know what to do with them. A tipoff came with Justice Thomas’ very first question, asking if the ISIS recommendations were the product of a “neutral” algorithm. This is a Google-favorable question. Justice Thomas had begged plaintiffs to bring him 230 cases, and now that he has one, apparently he’s like “WTF?” I imagine the other justices who voted for cert felt similar qualms.
• The justices really struggled with parsing the statutory wording. This is a good example of how 230 could lose even if Google wins. The court’s exact reasoning will make a huge difference, and there are many ways it could go sideways. Some areas of potential concern:
  • Google’s lawyer Blatt endorsed the Henderson test. That would be a disastrous ruling if adopted by SCOTUS.
  • Blatt seemed to say that if a service pays authors for the content, 230 doesn’t apply. That would also be disastrous for the content ecosystem.
  • Blatt conceded that “endorsements” aren’t covered by 230. That may be true, but it all depends on how “endorsement” is defined. SCOTUS could define it in very unfavorable ways.
  • Some of the justices offered some crazy interpretations. Justice Gorsuch said that everything turns on the definition in (f)(4) of “access software provider,” an interpretation that would clearly collapse when pressed. Justice Jackson suggested that 230(c)(1) only eliminates strict liability claims, not claims based on scienter, which is obviously wrong.
  • There was some discussion about how 230 applies to AI-generated outputs. Anything the opinion says about AI will be disastrous. It’s not necessary to resolve the case, and it involves too much speculation.
• The justices frequently crossed over to discuss the ATA prima facie case, the subject of tomorrow’s hearing in Taamneh v. Twitter. That could lead to some “horse-trading” between the two cases. For example, this case could be remanded for further proceedings if Taamneh goes Twitter’s way on the ATA question.
• The discussion involved many core questions trying to define what “publishing” means.
  • To me, prioritization and removal are two sides of the same coin. If a service removes content, it prioritizes the rest. I’m not sure the justices internalized this, but it seems so completely obvious to me.
  • There was a lot of discussion about “neutral” tools (and occasionally “neutral rules”) and “neutral” algorithms, as well as algorithms that don’t “discriminate.” All of this is misguided. Algorithms are never neutral and always discriminate. And tool “neutrality” elides many questions about who made the tools and their normative agenda. No publisher ever wants to use “neutral” tools because the mere act of publication is, by definition, not a neutral act.
• There was some concern about the adjudicatory implications of taking 230 away and relying purely on prima facie elements to grant motions to dismiss.
• The justices struggled with several critical factual questions they could not answer. Two that jump out at me:
  • How often will plaintiffs bring lawsuits if 230 is lifted?
  • How would lower courts interpret “aiding & abetting” liability if 230 is lifted?
• As illustrated by those unanswerable questions, I heard some support for the recognition that the Supreme Court is not the right place to do the kind of policy balancing and tradeoffs that come from modifying 230, so that should be the province of Congress. Congress remains steadfastly hostile to 230, but overall, they are in a better position than the court to consider the whole picture.

I am slightly relieved about the tenor of the justices’ questions. However, I remain nervous that the court’s opinion will still change the status quo, potentially significantly, by opening up new doors for plaintiffs to explore.

UPDATE: I was not impressed with the plaintiff lawyer’s advocacy, but it’s worth reminding everyone that all of the lawsuits against social media services for providing material support to terrorists have been misguided from the beginning. Terrorist attack victims filed a couple dozen of those lawsuits throughout the country using the same basic arguments, and those cases all failed without exception (and for a variety of legal deficiencies, not just one)–until the Ninth Circuit cracked open doors in the Gonzalez and Taamneh cases that many other judges had firmly shut. I’m sympathetic to the victims of terrorist attacks, but they made the unfortunate choice of suing the wrong defendants, and even the best advocate in the world couldn’t fix that at oral arguments.