10 Key Moments From Google and Twitter's Historic Week at the Supreme Court

Anyone looking for the court’s nine justices to come out the gates firing at tech companies and express profound regrets for the day Section 230 was ever written were in for a disappointment. Nearly every justice emphasized the importance of the carve out for helping tech companies grow, particularly during the early days of the internet.

Though some justices like Elena Kagan noted the difficulties of translating the more than 20-year-old liability protection to a new algorithm-driven world, justices simultaneously noted the difficulty of differentiating between systems that recommend harmful or benign content. Others, like Chief Justice John Roberts, likened recommendation algorithms to other sorting decisions made by publishers of the past.

“It’s really just a 21st century version of what has taken place for a long time in many contexts,” Roberts said. “Which, when you ask a question, people are putting together a group of things, not necessarily precisely answering your question.”

Eric Schnapper, the lawyer representing the families suing Google and Twitter, decided to hang much of his Section 230 argument Tuesday on an odd choice: YouTube thumbnails.

Schnapper claimed tech companies like Google lose their 230 immunity when thumbnails are made because the company created the image used and a URL associated with the video. That involvement, Schnapper claimed, shifts YouTube’s videos out of the realm of “third party” content traditionally understood to be covered by 230 and into something else entirely.

“Our contention is [that] the use of thumbnails is the same thing under the statute as sending someone an email and saying, ‘You might like to look at this new video now,’” Schnapper said.

Justices weren’t exactly convinced by that point though with several saying they were left “thoroughly confused” by Schnapper’s reasoning.

From the very onset of debates over Section 230, tech firms and supporters of the liability shield have warned reducing its scope could open internet companies to debilitating waves of lawsuits. Justice parroted many of those arguments on Tuesday, with justice Brett Kavanaugh going as far as to say lawsuits would be “nonstop.”

“You are creating a world of lawsuits,” Kagan said when questioning Deputy Solicitor General Malcolm Stewart, “Really anytime you have content, you also have these presentational and prioritization choices that can be subject to suit.”

Advocates pressuring the court to maintain the status quo claim that the impending threat of legal action would force platforms to self-censor and avoid hosting even remotely controversial topics.

“If the plaintiffs in these cases convince the Court to narrow the legal interpretation of Section 230 and increase platforms’ legal exposure for generally knowing harmful material is present on their services, the significant protections that Congress envisioned in enacting this law would be drastically eroded,” Electronic Frontier Foundation Media Relations Director Josh Richman recently wrote. “Many online intermediaries would intensively filter and censor user speech, others may simply not host user content at all, and new online forums may not even get off the ground.”

One of the funniest, most telling moments of the two day arguments came when Kagan essentially roasted herself and the entire court by admitting the justices really don’t understand how social media works.

“We’re a court,” Kagan said. “We really don’t know about these sorts of things. These are not like the nine greatest experts on the internet.”

The justices went on to prove their ignorance throughout the hearing, with multiple justices saying they were confused by the arguments the plaintiff’s attorney tried to muster. Some justices, like Kavanaugh, questioned whether or not it was their place to make a decision on 230 and floated the idea of handing any decision off to Congress instead. As past hearings have shown though, many of those lawmakers aren’t exactly technology savants either.

“Those are serious concerns,” Kavanaugh said. “Concerns Congress, if it were to take a look at this and try to fashion something along the lines of what you’re saying, could account for.”

“We are not equipped to account for that,” he added.

The justices aren’t the only ones apprehensive about the judiciary making a call on Section 230. Advocates in favor of wide protections, such as the Center for Democracy and Technology, have previously said it’s crucial for justices to acquire deep knowledge of internet firms’ underlying technologies before they make a major decision. The justices basically admitted they aren’t up to that task this week.

“The Court needs to understand how the technology underlying online speech actually works, in order to reach a thoughtful ruling that protects users’ rights,” Alexandra Reeve Givens, president and CEO of the Center for Democracy and Technology, said in a statement.

Though most debates concerning Section 230 usually pertain to the risks posed to tech companies, Justice Amy Coney Barrett highlighted ways weakened protections could also impact everyday users.

During her questioning , Coney Barrett asked Schnapper, the plaintiff’s attorney, if the pullback on 230 Projections he proposes would potentially result in users’ retweets and likes being eligible for legal liability. After some back and forth, Schnapper admitted that was a possibility, since those actions are both technically examples of users generating new content.

“That’s content you’ve created,” Schnapper said.

Under that chaotic reality, users could be one errant retweet away from a costly lawsuit.

Some top legal experts monitoring the arguments were utterly unimpressed by Schnapper’s disjointed, at times incoherent arguments. In a series of tweets, Columbia Law Professor and former special assistant in the Biden administration Tim Wu said he thought the 230 cases brought before the court would fail, thanks in part to Schnapper’s repeated own-goals.

“I don’t know if I’ve ever seen lawyers do so much damage to their own case,” Wu said. “Schnapper for petitioner was way out of his league and threw away every lifeline threw to him. Painful to watch such a nationally important issue be so badly argued.”

Though Schnapper fared worse, Wu sent a dose of criticism towards Google’s lawyer as well, who he says walked into lengthy arguments that could have been avoided.

“Google’s Lisa Blatt had a much easier case—but got into an unwise and often patronizing battle with Justice Jackson that she could have easily dodged or softened,” Wu added. “Google’s Lisa Blatt had a much easier case—but got into an unwise and often patronizing battle with Justice Jackson that she could have easily dodged or softened.”

It’s easy for tech policy issues to quickly start sounding amorphous and inhuman. Google’s lawyer appeared to recognize that and forcefully described to justices the way the internet could change if 230 protections were weakened. Blatt, the attorney, said some platforms, eager to avoid litigation, could remove recommendations or be compelled to remove posts about terrorism or really any other remotely controversial issue, leaving users with an incomplete version of reality. Other platforms, on the other hand, could go the other route and opt for any anything goes model where they refuse to moderate even the most egregious content.

Users, Blatt said, would be left to choose between “The Truman Show versus the horror show.”

If Tuesday’s arguments were defined by their dramatically wide scope, the Wednesday arguments concerning Twitter v. Taamneh were almost completely the opposite. That case focuses on a 2017 lawsuit filed by the relatives of Nawras Alassaf who died following an ISIS attack that left 39 people dead. Lawyers representing Alassaf’s relatives tried to convince the justices that social media companies’ failure to remove suspected ISIS content qualifies as aiding and abetting terrorists and runs afoul of the Anti-Terrorism Act.

Whether or not that winds up ringing true will rely largely on incredibly tedious, nuanced textual interpretations of laws from lawyers on all sides of the argument. A lawyer representing Twitter spent much of the day Wednesday debating with justices over particular phrasings in past legal decisions and tried to draw distinction between Twitter actively aiding terrorists and potentially aiding them by failing to remove all of their content.

Arguments in the Twitter case largely involved parsing through specific elements of text which meant justices and lawyers on both sides relied heavily on metaphors and hypotheticals to make their point. Osama bin Laden, possibly the world’s most famous terrorist, was invoked multiple times.

First, Kagan asked U.S. Solicitor General Edwin Kneedle if he thought a bank could be held liable for aiding terrorist activity if they agreed to provide financial services to bin Laden. The answer, according to Kneedle, was probably, leading Kagan to suggest that the same connection could apply to Twitter.

Later, Kavanaugh asked Schnapper if he thought CNN could be held legally liable after it agreed to air an interview with the Al Qaeda leader where he declared war against the United States.

Even though justices appeared somewhat sympathetic to elements of Twitter’s legal argument Wednesday, many weren’t thrilled with the company’s decision to allow content from known or suspected terrorists on its platform

“If you know ISIS is using it, you know ISIS is going to be doing bad things, you know ISIS is going to be committing acts of terrorism,” Amy Coney Barrett said Justice Elena Kagan reiterated that statement in her questioning, telling the Twitter lawyer the company is “helping [ISIS] by providing your service to those people, with the explicit knowledge that those people are using it to advance terrorism.”