Justices Seem Hesitant to Upend Section 230

their platforms. The case involved a twenty three year old US citizen who was one of one hundred thirty people killed in attacks by the Islamic State group in Paris in November of twenty eighteen. Her family says Google, through its algorithm driven YouTube recommendations, aided the Islamic State in violation of the US Anti Terrorism Act, but Justice Clarence Thomas suggested that companies can't be sued if their recommendation algorithms are neutral about the kind of content they promote.

If it's the same algorithm, I think you have to give us a clear example of what your point is. Exactly the same algorithm to present cooking videos to people who are interested in cooking and ISIS videos the people who are interested in ISIS racing videos the people who are interested in racing. Then I think you're going to have to explain more clearly if it's neutral in that way, how your claim is set Apart from that. Joining me is Harold Crant, a professor at the Chicago Kent College

of Law. Before we talk about the Supreme Court arguments, just explain what the case is about. This case concerns a action under the Terrorist Statutes directed against Google, who operates YouTube, for aiding and abetting terrorism. The argument in this case was that YouTube, by suggesting certain videos, helps radicalize people and helps therefore helps aids ISIS into recruiting

new members. And the legal issue that arises out of this challenge is whether or not a cause of action can be maintained against Google for fostering sharing of these videos, and then, if so, whether a proper cause of action has been pled. The first issue revolves around the Community Decencies Act Section to thirty, immunity for Internet computer services when they simply allow for external videos to be seen

or retrieved from their site. And to thirty was a key instrument in trying to develop the Internet by allowing platforms to allow others to publish videos and other works on sites without then letting the platform be sued in case some of those informations were in this case terrorism, but in other cases involving defamation, or involving trademark infringement

and so forth. So by immunizing the platforms, they really gave rise to the twitters that facebooks, the Googles of the world, which can basically then grab all this material or have all this material be deposit on their site and therefore available for those of us who want to search for things, or want to contact friends or see as in this case videos. Did it strike you that there were some top concerns that the justices had about

the plaintiff's lawsuit. Absolutely, this is one of these few cases where I don't think that the justices were hiding us of beliefs. I think that their inclination to rule on behalf of the defendant was quite clear. But the issue remains about which type of decision they may want to issue. And let me break that down into two parts, because the first part was whether or not Google can be protected by Section two thirty or not, and the second is whether there is a valid cause of action pled.

It's pretty clear to me that the Court is going to say that if you just have an algorithm recommend a video that's not aiding and embedding. So I think that there was no inclination amongst the justices to be sympathetic with plaintiffs in that respect, and on that issue they said, look, I mean, you can say look at this video, or you can say you might want to see this video, or you can say go over there and look at a stack of books. That's simply not

enough to state any kind of tortious behavior. So I think on the ultimate issue of whether a tort was committed, the court may just say, no, we don't need to reach the more difficult and tractable issue of how large

it is community created by section two thirty. But much of the argument was spent on what should we do as a court about the scope of two thirty immunity because the sort of algorithms that are used by Google and Twitter, Facebook in terms of Facebook feeds certainly didn't exist at the time that the community decency at Community

was put into effect. So much of the discussion than we evolved around how do we draw a line between when a platform says this video is available or the platform says you might want them to see this video, or the platform says you may like this video, is dead enough to lose immunity, because then it's as if the platform becomes a publisher by saying you're going to

like this video, and no one knows. Lots of hypotheticals were raised, but it's the kind of case where at the end of the day, as some of Justice has said, if this is so difficult, and this may cause such a risk to the continued development of the Internet, maybe we should let Congress make these difficult lines and we

shouldn't try to ourselves. Did it seem to you as if the justices just didn't even accept the plaintiff's basic argument, Justice Alito said, I admit, I'm completely confused by whatever

argument you're making at the present time. Well, I mean, I think that the difficulty was that the Council for the Plane of backtracked from much that was in their brief and try to make a much more narrow argument that he thought was more defensible, And he basically said that there was no duty on the platform to take down the videos, and that the Google was not couldn't be civilly liable simply for housing the videos, even if

they were an incitement to terrorism. What he argued instead was a more narrow version is that by reorganizing the videos, by prioritizing videos through this algorithm, that then that crossed the line in terms of Google becoming a publisher and therefore no longer subject to the immunity created by Section two thirty. And that's why I think through a lot of the justices off the more narrow version of the

argument that plaintiff was raising. The concern before the oral arguments was that this would open Google and Internet platforms up to all kinds of lawsuits. Was that addressed in the oral arguments? Absolutely? I mean the number of briefs were filed that raised a parade of horribles that Google and Facebook will be subject to defamation cases, subject to privacy cases, trademark cases, if Section too thirty immunity was

tampered with. And I think the reason is that it's so difficult to figure out what it is where the line is between a platform simply saying come look at the videos here. That's what people do to sell things, they publicize them, and when is it okay? Besides and say you may be interested in this article or this video as opposed to when you actually becoming caruts with

the video because you prioritize it in some ways. And the Narrow arguments that the plaint of game was by giving a little thumbnail that YouTube creates in other ways, just a little brief sort of taste of what the video is. That that really crossed the line. And then YouTube became just as if it was creating something. It was creating like a mini advertisement, and that little mini advertisement was enough to give rise to liability and to avoid immunity. And the United States is the meekest was

sympathetic to that view. The United States clearly said there's not enough for itting and a betting liability here. But the United States says, you know, look, once you create any kind of semi advertising platform, be it through a you should look at this first. To come here and

look at this new video. You're responsible for that that product, for that kind of statement yourself, and then you're no longer immune for at least that kind of advertising or promotions prioritization or organization, even if you still remain immune from liability for the video itself. Do you think that the justices can come to a decision here without specifically ruling on section two thirty. So the court has a

couple of different options in front of it. First of all, coag just say, whatever is going on in this case, there's no aiding and abetting liability here, So we reserve the right to questions the scope of two thirty immunity for a different day. That's one option. Another option is they can say, this is a difficult line drawing issue about when does a platform liability not become a publisher through its organizational and prioritization of other work, and they

can try to find a line. A line not surprisingly drawn by Google was that if the harm comes from the prioritization, where the harm comes from the publicizing, then there should be no immunity. But of course that's a convenient test for Google because that googleman's in almost every case, not every case, but almost every case. The other third tech the court could just take was this is a new issue that Congress has not fully fought through when

it passed the Communications Decency Act. It's very difficult. We have a new age of AI and other kinds of algorithms, and we're going to let Congress take the lead if it wants to change the immunity for platforms such as

Twitter and Google. Did anyone mention the original authors of section two thirty Oregon Democratic Senator Ron widen In former California Republican Representative Chris Cox explained they're thinking behind the legislation in a brief to the court, and they said that algorithmic recommendations are direct descendants of the early content curation efforts that Congress had in mind when enacting section to thirty. Does that have any relevance at all? Was

that mentioned at all? So the names of the sponsors of the Community Decency Act were not mentioned in to my recall, but there was some discussion of that kind of legislative history, that the drafters that bill were aware of algorithmic type uses. They didn't dominate at the time, but they were around in their infancy. And so the question is, then, if the drafters were aware of the potential for algorithms, were they trying to protect those as well?

About the use of language in the immunity section. And it was interesting because you know, the community Section can be interpreted different ways. It can be interpreted through the lens of common law deformation actions, it can be interpreted through the brief language that's in the immunity section as well. And so there was some effort not only looking at legislative history, but looking at the plain language as well as common law and the students of this immunity section.

But I think at the end of the day, those arguments are not going to win out. I think the question is really that the court was stumbling on, is okay, theoretically there are some bad algorithms out there. Everybody agreed that if an algorithm tend to do differentiate on the basis of race, for instance, that then the platforms would not escape liability because then the harm would be caused by the algorithm itself. But at what point would a

neutral algorithm? And everybody agreed that this algorithm that was challenge was neutral in the sense that it treated people liking pet cats and the terrorists videos the same in terms of how the algorithm works. That at what point would sort of a neutral algorithm be subject to suit was the question, and how do you draw the line? And that was daunting, I think at over our both to the attorneys representing their parties as well as to

the justices. And so again I think The three choices are the court may just pump and say will await Congress. They can try to draft some kind of wine itself which did not come clearly through a dooral argument, or they can just avoid the whole question by saying, whatever this is, there's no aiding and betting going on here, simply by use of an algorithm, So we don't have to talk about or reach the scope of immunity under

their Community Decency Act. Was it surprising? Justice Amy Coney Barrett asked the plaintiff's attorney to confirm that the legal theory he was advancing would not protect individual Internet users retweeting, sharing, or liking other people's content, and he said that it

would cover people retweeting or liking. Justice Barrett asked about whether retweeting could land someone in jeopardy for retweeting a defamatory statement, and other justices chimed in that that's a difficulty because in terms of if you republish a defamatory statement in the newspaper, the newspaper can also be sued

for defamation. So the council had to wrestle with that because there is a possibility that if the plaintiff's theory of the case were accepted that those who retweeted thoughtlessly might be subject to lawsuits as well, But everybody hastened to add that's not directly at stake in this particular case. Because this case had to do with not republishing, but rather platform organizing or platform prioritization of videos for others to watch. The Court didn't have to take this case

because there wasn't a split in the circuits. Why do you think they took this case and the Twitter case? So I've wondered why the court accepted this case, and I haven't come up with a very convincing response in

my own mind with this caveat. There is such a controversy brewing on the political parties about big tech and if big tech is good or bad for the country, and two thirty immunity was one of the major arguments that has been booted back and forth by the political parties as to whether or not it's a good or bad thing, and whether or not it's letting big tech

get away with too much. So this may have been a first effort for the court, in its own mind, to be responsible and try to wrestle with two thirty. In order to sort of depoliticize to some extent the role of big tech in our country. I don't know if theory has any kind of legs, but if so, I think that big tech is going to look pretty good after this case is over. I know that Justice any Coney Barrett did talk about the case against Twitter. So if you lose tomorrow, do we even have to

reach the section to thirty question here? How much did

the case against Twitter come up? The case against Twitter came up a lot because the kids against Twitter it revolves around the question of the validity of the aiding and abetting argument, and the courts seemed to overwhelmingly oppose the notion the Twitter or any other platforom can aid in a bet merely by offering someone to view a incendury in this case, an incendury video in another case it could be some kind of defamatory tweet or something

else along those lines. That aiding and betting have to be much more according to the court. So I'm not sure what there's going to be for argument for two hours tomorrow because it looks like most of that argument already took place here. But you know, maybe the court will have some twists and turns to cover to make

up for something that they regret not covering. From what you're saying and from what the Justice has said, it's it sort of seems like a very logical conclusion that you know, just by having these algorithms, you're not aiding in a betting terrorism. It does. On the other hand, but for YouTube, but for Facebook, terrorists might not be able to operate so freely and more people now see provisis videos and ever could have before because of Internet

platforms like YouTube and Facebook. And that's that's the danger here. I mean, it is true that in terms of you just looked at common sense responsibility for aiding terrorism, platforms do it, and there's no question about it. But whether there's criminal liability or even whether there's civil liability under the aid terrorist statues, I think that's a that's a more difficult question. Thanks for being on the show. How that's Professor Harold crant Other, Chicago Kent College of Law.

President Biden surpassed one hundred judicial confirmations last week, including Katangi Brown Jackson to the Supreme Court, but most of his circuit and district court appointments have been in Blue states or those represented by Senate Democrats, who narrowly control the chamber. Finding common ground with Republicans will be vital to the Biden administration, since thirty eight of the fifty six trial court vacancies without appending nominee are in Red states.

Joining me is Madison Alder Bloomberg Law reporter. I'd like you first to explain the process is different for nominees for district court as opposed to circuit court. So explain the difference. Right, So, district court still needs support from both of their home state senators through a process known

as the blue slips. Player senators send in its physical flip of paper to signify that they agree with the nominee that was abandoned for a Pellet nominees under Trump, and Democrats have held that same policy under Biden, where the pelt nominees don't need home state senators support, but district nominees still do. There are fifty six trial court vacancies that don't have a nominee, even suggested right, there are.

There are quite a few district court vacancies. Now Biden has has prioritized circuit vacancies and Billy nominated a lot of folks for the open beats. So now there are are quite a few district vacancies, and the majority of those are in states with a Republican senator because home state support is still needed on those. It'll be interesting to see how the White House goes about negotiations with senators in those states and what those nominees end up

looking like. There are still a lot of vacancies in blue states. Why aren't they sort of up to date? Well, there's you know, there's there's still a few nominees in our vacancies. Excuse me. In blue states, there's quite a few nominees pending. So after the beginning of the new Congress, the White House renominated a whole batch of nominees that

were pending in the last Congress. Any nominee who wasn't confirmed at the end of the last Congress, just as kind of a matter of practice, needs to be renominated at the beginning of a new Congress. And all of those nominees are either on the floor or had their hearings, So the Senate still needs to get through those. They still have work to do, and a lot of those are nominees in Blue states as well. But there are

handful of seats they're still open. So um, you know, there there's only a finite number of days that um, you know, the Sunate Judiciary Committee can have hearings and

you know, then have floor votes on no nominees. So you know, last Congress, I think the White House obviously prioritize nominees, but they still left it if you handful of seats in blue states, just because there's kind of the constraints of that process and the limited number of days on the calendar to actually get nominees through in a red state, is it normally if there is you know, an usual process, does the Biden administration suggest a nominee

or does the home state senator suggest a nominee? So I spoke to Page her Wig, a senior White House Council who who works on jeration nominations, and she said, the administration is looking for people in these conversations that makes sense for a Democratic president to nominate, but who will get the necessary backing from home state senators. And you know they believe it that there are plenty of

candidates out there who will fit that bill. Those conversations can look anything like the White House bringing names the home state senators bringing names. I think it really differs from state to state, depending on you know, what the area looks like to for those conversations. Now, Biden has had success in finding mutually agreeable nominees in red states of Iowa, Idaho, and Indiana. Is there a reason why those states have been, you know, easier to find nominees for?

Is it the senators there? Well, I mean I think it could be. It could be the senators. Um, you know, I spoke to Senator Mike Braun who is the Republican in Indiana, and talk to him a little bit about how how this nomination in his state came to be and and he said it was an easy checkoff for him, the nomination of Matthew Brookman, who's currently a magistrate judge to a district courd in his state. Not every nominee is going to be as easy as the checkoff, depending

on their backgrounds. So, you know, it'll probably depend on what nominees or what candidates arise in those conversations. It can also depend on you know, who the lawmakers are and in what the area looks like. So some states might be easier than others to have these kinds of conversations with and Republican Senator John Cornin of Texas complaint get a Judiciary committee, meaning that the White House hadn't reached out to him even and there are a lot

of vacancies in his state. So John Cornyn um of Texas represents the state with six vacancies, which is the second most vacancies of any of the states out there that don't of these seats that don't offending nominees and district courts. And he was not pleased with how the

White House had been communicating on this. He felt that, um, he had communicated with the White House and the White House hadn't gotten back to him quickly enough on their end, And UM, you know that could that could mean you know that if there's six seats in the state, that that's that's not great for those conversations. I mean, it could potentially leave six seats on the table. But I

guess we'll see how that that shakes out. Um. I think he definitely expressed disappointment, and um, you know, Lindsey Grahams, who is now the ranking member of the ranking Republican on the Senate of Judiciary Committee kind of echoed his his concerns at a recent hearing as well and said, you know, there has to be a willingness to consult,

that it's got to be a two way straight. Of course, all of these conversations are coming as there's a lot of progressive pressure to eliminate the blue slip entirely at the district court level. I think that's definitely is context for all of these negotiations right now, is that there's

quite a lot of pressure. It's increased, I think in this new Congress to just get get rid of the blue slips so Biden could move nominees forward in district courts without having to associate with Republican senators and progressive sphere. That this will take a long time, and you know, the nominees might end up being more of a compromised

pick between Republicans and the White House. But the chair of the Judiciary Committee, Senator Dick Durbin, to me, it seems like he's been reluctant to make any changes even with you know, having more nominee. He's eddy cheering, right. So Senator durban has has really maintained the same practices here that Republicans had during the Trump administration, and that means keeping the blue slip for district courts in place.

He said that, you know, he's reserved the right to potentially move forward with the nominee in the future if he feels a Republican senator or a senator is objecting to a nominee outside of their merits, so because of race, sexual orientation, gender. When I spoke to him about this, he said, in that kind of a case, he'd know it when when he sees it. So we really haven't

come across a situation like that yet. There was a nominee not in the last Congress who didn't have both of his own state senators returned blue slips on his nomination, William Pokon in Wisconsin. His nomination he was not renominated this Congress by the White House, so he We've already seen one nominee who the blue slips role prevented their nomination from moving forward and kind of it ended up

ending their nomination. So, um, you know, this Congress I think will be even more of a test with the number of the volume of vacancies and states of Republican senators and a nominee in Kentucky also fell through right, Chad Meritith nomination, Well, he wasn't really a nominee yet, he was a candidate, or should be clear about that. But this was a nominee that the Senator Rand Paul didn't feel like he was consulted enough on this by

by Senator McConnell. Um, you know, an apparent kind of agreement or nominees at the White House and McConnell had had talked about. But Ran Paul was actually you know what ended up preventing the nomination from moving forward because

he didn't feel like he was part of that conversation. Um. So the nomination was scrapped, and that nomination or candidacy angered progresses because Ted Meredith had defended abortion restrictions and progressives were really not pleased with the ideas that the White House was considering a nominee like that, especially, you know, so close to the dob's decision the less and a lot of times Committee was deadlock ten to ten on nomination. So there was a you know, a process to go forward.

Is it easier now with the Democrats gaining that seat, Yes, Democrats are going to have a much easier time Committee. Democrats getting these nominees out of committee into the floors. As you mentioned, there were there were deadlocks on nominees lost Congress. There were actually a couple of de banning of this Congress because the committee didn't have its new

membership yet, so those were a little unexpected. But now that it has this you know, additional vote with the Senator Peter Welsh, they are able to actually get some of these nominees out of committee and have been able to get nominees out of committee who did deadlock Congress, so those nominations are finally moving forward. One of those nominees is Dale Hoe, who's nominated to the Southern Districts of New York. He's an ACLU voting rights attorney, and

his nomination had deadlocks. But now he is now on the floor, so it's it's already paying dividends. So now I wanted to talk about this nominee from New Hampshire that both progressives and Republicans were pushing back on. All right, So one of Biden's nominees to the First Circuit, Michael Delaney, he had his confirmation hearing last week and got some some pushback from progressive you know, sexual violence awareness groups and Republicans for his involvement in litigation with a student

who was a victim of sexual harassment. He was the lawyer for the school in this litigation. And um, the critics really focused on an emotion that Sally Knew filed during proceedings for the then teenage victim to shed her anonymity and um, you know, come forward with her name on the record. Yeah, And so the victim wrote to the committee urging the centators to vote no. And um, the National Alliance to End Sexual Violence express concerns. So

where does that nomination stand? So, you know, I spoke to some Democrats on the committee about this before they got out of town, and they they're reviewing his record. H That's really the most um common answer that I heard was that they were reviewing his his background. But he still has support from the White House. Um, he still has support from at least one of his home

state senators. You know. And when I supposed to Durban about this, you know, Jared Durban mentioned that he kind of had a difficult situation explaining this, and he pointed to the amount of support Delimi had and and said he hoped that his state wouldn't be decided by this controversial issue. This is so interesting too, because the last time there was a nomny that progressives were really opposing, Republicans supported that, not many, like tenfold. It was the

unanimous side of committee. I think they might have even voice voted her on the floor, So this was kind of the first time you see Republicans and progressives on the same side, at least that I can think of. Thanks so much, Madison. That's Bloomberg Law reporter Madison Alder, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on

our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune in to The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso, and you're listening to Bloomberg