Why Big Tech will lose its Supreme Court case on section 230

I only count two votes to ratify Big Tech's sweeping immunity claims

The Supreme Court's oral argument in Gonzalez v. Google left most observers in a muddle over the likely outcome.  In three hours of questioning, the Justices defied partisan stereotypes and asked excellent questions, but mostly just raised doubts about how they intended to resolve the case. I had the same problem while listening to the argument in for a Cyberlaw Podcast episode (No. 445) that will be mostly devoted to Gonzalez.

But after going back to look at each Justice's questions separately, I conclude that we do in fact have a pretty good idea how the case will turn out: Gonzalez will lose, and so will Google, whose effort to win a broad victory is likely to be killed – and most enthusiastically by the Court's left-leaning Justices.

First, a bit about the case. Gonzalez seeks to hold Google liable because the terror group ISIS was able to post videos on YouTube, and YouTube recommended or at least kept serving those videos to susceptible people. This contributed, the complaint alleges, to a terror attack in Paris that killed Gonzalez's daughter. Google's defense is that section 230 makes it immune from liability as a "publisher" of third-party content, and that organizing, presenting, and even recommending content is the kind of thing publishers do.

I should say up front that I am completely out of sympathy with Google's position. I was around when section 230 was adopted; it was part of the Communications Decency Act, which was designed to protect children from indecent content on the internet. The tech companies, which were far from being Big Tech at the time, hated the decency part of the bill but couldn't beat it. Instead, they tried to turn the decency lemon into lemonade by asking for relief from a recent defamation ruling that online services who excluded certain content were the equivalent of publishers under defamation law and thus liable for any defamatory third-party content they distributed. Services like AOL and Compuserve pointed out the irony that they were being punished for their effort to build family-friendly online communities—the opposite of what Congress wanted. "If you want us to exclude indecent content," they argued to Congress, "you have to immunize us from publisher liability when we do that." That was and is a compelling argument, but only for undoing publisher liability under defamation law. To my mind, that's exactly what Congress did when it said, "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."

But that's not how the courts have read section 230. Seduced by a transformative technology and by aggressive, effective advocacy, the courts read this language to immunize online providers for doing anything that publishers can be said to do. This immunity goes far beyond defamation, as the Gonzalez case shows. There, Google said it should be immune because deciding what content to show or even recommend to users is the kind of thing a publisher does. Of course, carried to its logical extreme, this means that what are now some of the richest companies in the world cannot be held liable even if they deliberately serve how-to-kill-yourself videos to the depressed, body-shaming videos to the anorexic, and ISIS videos to extremists.

So, why not just correct the error, narrow the statutory interpretation to its original purpose, and let Congress actually debate and enact any other protections Big Tech needs? Because, we're told, these companies have built their massively profitable businesses on top of the immunity they sold to the courts. To change now, after twenty-six years of investment, would be disruptive – perhaps even catastrophic. That in a nutshell is the dilemma on whose horns the Court twisted for three hours.

It is generally considered professional folly for appellate lawyers to predict the outcome of a case based on the oral argument. In fact, this is only sometimes true. Judges, and Justices even more so, usually want feedback from counsel on the outcome they're considering. It's hard to get that feedback without telling counsel what they have in mind. That said, some judges believe in hiding the ball, and some just like to ask tough questions. And in complex cases, sometimes the Justices' initial inclinations yield to advocacy in conference or in drafts circulated by other Justices.

That latter fate could be in store for the Gonzalez case. So there's a good chance I'll end up guessing wrong about the outcome.  But considering how muddled the argument seemed, I was surprised how much can be learned by going back through each Justice's questions to see what each of them thinks the case is about. It turns out that most of them were very clear about what rules of decision they were contemplating.

Justice Gorsuch.  Let's start with Justice Gorsuch. I believe we know what his opinion will say. He laid his theory out for every advocate. He will again indulge his bent for finding the answer in the text of the statute. Briefly, he noted that Congress defined the entities eligible for immunity to include providers of software to "filter, screen, allow or disallow content" and to "pick, choose, analyze, or digest content," Bingo, he seemed to say, there's your textualist solution to the case: Congress told us what publishers do and thus what should be immune. No one, with the possible exception of Justice Kavanaugh, found this particularly compelling, mainly because it's an extraordinarily broad immunity, protecting even platforms that boost content for the worst of motives – to harm competitors, say, or to denigrate particular political candidates or ethnic groups. (The notion has serious technical flaws as well, but I'll pass over them here.)

Justice Kavanaugh. Justice Gorsuch's embrace of broad immunity suggests that he sees this case through a business conservative's eyes: The less liability the state imposes on business, the better. In this, he was joined most clearly by Justice Kavanaugh, who reverted several times to the risk of economic disruption if a narrower reading of section 230 were adopted.

Chief Justice Roberts. If you're looking for a third business conservative on this Court, Chief Justice Roberts is the most likely candidate.  And he clearly resonates to Big Tech's concerns about unleashing torrents of litigation; he's reluctant to impose liability for content selection where the criteria for selection are generally applicable (e.g., the site just gives the user what she asks for). But he also recognizes that it's the platform that has the power to select what the user sees, and he wonders why the platform shouldn't be responsible for how it uses that power.

The Chief Justice's qualms about a sweeping immunity, however, are muted. They are expressed much more directly by the Justices on the left.

Justice Sotomayor. Justice Sotomayor returns time and again to the idea that the power to select and recommend can be abused – by encouraging discrimination on racial or ethnic grounds, for example. Her hypotheticals include "an Internet provider who was in cahoots with ISIS" to encourage terrorism and a dating app "that won't match black people to white people." She's not willing to narrow the immunity back to what Congress probably intended in 1996 (spoiler: none of the Justices is), but she bluntly tells the Solicitor General's lawyer what she wants: "Let's assume we're looking for a line because it's clear from our questions we are, okay?" She wants an immunity for what could be called "good" selection criteria – those that are neutral, unbiased, or general-purpose – but not for "bad" criteria.

Justice Jackson. If anyone supports the idea of returning to the 1996 intent, it's Justice Jackson, who tells Google's lawyer that "you're saying the protection extends to Internet platforms that are promoting offensive material…. exactly the opposite of what Congress was trying  to do in the statute." At another point, she signals clearly that she disagrees with the Google position that any selection criteria it chooses to use are immune from suit. In another colloquy, she downplays the risk of business disruption as just a "parade of horribles." Not all of her questions sound this theme, but there are enough to conclude that she's close to Justice Sotomayor in her skepticism about the sweeping immunity Big Tech wants.

Justice Kagan. Justice Kagan also sees that section 230 doesn't really fit the modern internet. The Court's job, she seems to say, is "to figure out how … this statute which was a pre-algorithm statute applies in a post-algorithm world." She thinks the plaintiff's reading could "send us down the road such that 230 really can't mean anything at all." She's daunted by the difficulty of refashion the statute to avoid over-immunizing Big Tech:

I don't have to accept all Ms. Blatt's "the sky is falling" stuff to accept something about, boy, there is a lot of uncertainty about going  the way you would have us go, in part, just because of the difficulty of drawing lines in  this area and just because of the fact that, once we go with you, all of a sudden we're finding that Google isn't protected. And maybe Congress should want that system, but isn't that something for Congress to do, not the Court?

At the same time, she sees, the immunity Google wants would allow Google to knowingly boost a false and defamatory video and to refuse to take it down. She asks, "Should 230 really be taken to go that far?" I'm guessing that she thinks the answer is "no" and that she, like Justice Sotomayor, is just looking for a line that gets her there.  For purposes of the count, let's put her in the middle with the Chief Justice.

So far, the Justice-by-Justice breakdown for giving Google the sweeping immunity it wants is a 2-2-2 split between the left and right with the Chief Justice and Justice Kagan in the middle. That sounds familiar. But it's about to get weird. That's because the three remaining Justices are at least as much social as business conservatives. And Big Tech has a long track record of contempt for social conservatives.

Justice Thomas. You'd think that Justice Thomas, who's been grumbling about section 230 for this reason for years, would have been an easy vote against Google. He clearly has doubts about Google's sweeping claim of immunity for any selection criteria. At the same time, his questions show some sympathy for protecting Google's selection criteria, as long as they're generic and neutral. I still think he'll be a vote to limit the immunity, assuming someone finds a dividing line between good selection criteria and bad.

Justice Alito. Justice Alito is the only Justice to show a hint of conservative resentment at the rise of Big Tech censorship in recent years. He notes that Google could label and preferentially distribute what it considers "responsible" news sources and he questions why such curation should be immune from liability: "That's not YouTube's speech?" he asks. "The fact that YouTube put those at the top, so those are the ones I'm most  likely to look at, that's not YouTube's speech?" He also raises the specter of deliberate distribution of bad content: "So suppose the competitor of a restaurant posts a video saying that this rival restaurant suffers from all sorts of health problems, it—it creates a fake video showing rats running around in the kitchen, it says that the chef has some highly communicable disease and so forth, and YouTube knows that this is defamatory, knows it's—it's completely false, and yet refuses to take it down. They could not be civilly liable for that? ,,, You really think that Congress meant to go that far?"

And, in another sign that Big Tech may have overplayed its claim of an imminent internet apocalypse, his last sardonic question is "Would … Google collapse and the Internet be destroyed if YouTube and, therefore, Google were potentially liable for posting and refusing to take down videos that it knows are defamatory and false?"

By my count, that leaves the Court roughly divided 2-2-4 on whether to give Google a sweeping immunity, with two business conservatives all in for Google (Gorsuch, Kavanaugh), two Justices waffling (Roberts, Kagan), and what might be called a "populistish" grouping of Sotomayor, Jackson, Alito, and (probably) Thomas,

Justice Barrett.  Is Justice Barrett a fifth vote for that unlikely left-right alignment? Most likely.  Like several of the other Justices, she was puzzled and put off by some of the idiosyncratic arguments made by the lawyer for Gonzalez. She also showed considerable interest that I don't understand in making sure section 230 protects ordinary users for their likes and retweets. But when Google's lawyer rose to speak, Justice Barrett rolled out a barrage of objections like those we heard from the other four immunity skeptics: Do you really, she asked, expect us to immunize a platform that deliberately boosts defamation, terrorism, or racism?

So there it is, by my seat-of-the-pants count—somewhere between five and seven votes to cut back the broad immunity that a generation of Big Tech lawyers built in the lower courts.

And what about the folly of predicting outcomes from argument?  Well, it's hard to deny that I'm running a pretty high risk of ending up with egg on my face.

There is a real possibility that the Court will dump the case without ruling on Google's immunity. The lawyer for Gonzalez did himself no favors by shifting positions on his way to oral argument. He ended up claiming that thumbnail extracts of videos were really Google's content, not third-party content, and that simply serving users more videos like the last one they watched was a "recommendation" and thus Google's own speech. The Justice's struggled just to understand his argument, and they may be tempted to dump the case for that reason, ruling that immunity is unnecessary because Google faces no underlying liability for aiding and abetting ISIS (the question presented in a companion case argued the day after Gonzalez).

But dumping the case without a decision is not a neutral act. It leaves in place a raft of immunity-maximizing cases from the lower courts—precedents that at least seven Justices find troubling. That law won't go away on its own, so I'm guessing they'll feel dutybound to offer some corrective guidance on the scope of 230.

If they do, I bet that six or seven Justices will decisively reject the maximalist immunity sought by Google. They may have trouble tying that rejection to the text of the law (as do the immunity maximalists), and whatever limits they impose on section 230 (e.g., immunity only for "reasonable" or "neutral" content selection) could turn out to be unpersuasive or unstable. But that just means that Big Tech, which won its current legal protection by nuking liability from orbit will have to win some of its protection back by engaging in house-to-house legal combat.

If so, the popcorn's on me.