Freedom of Speech on Social Media Being Challenged in the Supreme Court

TaraPatta /
TaraPatta /

Despite the best efforts from the family of Nohemi Gonzalez, the Supreme Court doesn’t seem too likely to allow the family to go after tech giant Google for the death of her daughter in a terrorist attack in Paris.

Justices signaled that the 1996 law, Section 230 of the Communications Decency Act, which Google’s lawyers have used as a shield in this trial, doesn’t mean what they think it means. While they share this protection with companies like Twitter and Facebook, it only prevents them from being sued over targeted suggestions of videos, documents, and other content. Given that it was written over 20 years ago, many argue that it requires updating as the way social media interacts with people is different than it was in 1996.

“We really don’t know about these things. You know, these are not like the nine greatest experts on the internet,” Justice Elena Kagan said, referencing herself and the other justices on the Supreme Court, with several smirking at the description. She continued to say that law changes need to be passed by congress and not the court when they were originally written in the early ages of the internet.

Justice Brett Kavanaugh is one of six conservatives currently sitting on the Supreme Court. In his eyes, this is the smartest decision. “Isn’t it better,” Kavanaugh asked, keeping things running as they have been, so they can then “put the burden on Congress to change that?”

The 2015 terrorist attack in Paris is at the center of this case. Gonzalez’s family members were present to learn about their case to sue Google-owned YouTube for their role in the spreading of the Islamic State’s message across the globe and attracting new members. While lover courts sided with Google, the family was contending that it was a violation of the Anti-Terrorism act.

Various examples of what the algorithm YouTube uses looks like, how it operates, and how it might differentiate between terrorist producers and cat videos. Chief Justice John Roberts gave the suggestion that YouTube’s actions aren’t pitching something in particular to the person who’s made the request” but rather a “21st-century version” of something that has happened for a long time, putting together a group of things people might want to look at.

In a notation from Kagan, “every time anybody looks at anything on the internet, there is an algorithm involved,” no matter if you are using Google, YouTube, or Twitter. She asked the Gonzalez family’s lawyer, Eric Schnapper if agreeing with him could ultimately end up making Section 230 meaningless.

Previous lower court rulings on 230 have held up the ruling that companies are immune from lawsuits over the actions of their members on their platform. Critics on the other hand have argued that companies aren’t actively blocking enough harmful content, or even policing it up. In turn, they have contested that the law should not block lawsuits over recommendations that keep users on their platform longer by pumping out material of interest to them over and over again.

Justice Roberts was not alone in his questions about the legality of giving YouTube the same protections for hosting their videos. “They appear pursuant to the algorithms that your clients have. And those algorithms must be targeted to something. And that targeting, I think, is fairly called a recommendation, and that is Google’s. That’s not the provider of the underlying information.”

Justice Neil Gorsuch pointed out another factor that many seemed to have overlooked, with emphasis on the fact that “most algorithms are designed these days to maximize profits.” He then suggested that perhaps this be referred back to the lower courts, but shied away from discussing the protections Google had from the courts.

Rulings like these are difficult at best. While the First Amendment is crucial, there is something to be said about pumping someone full of dangerous information consistently. There is, even more, to be said about doing that and turning a profit off of it. As a nation, this is a polarizing issue, and this is certainly not the last case we’ll hear about.