Brooke Gladstone From WNYC in New York, this is On the Media. I'm Brooke Gladstone.

 

Micah Loewinger And I'm Micah Loewinger. This week, the high court pondered the fate of Silicon Valley.

 

NBC Back to back oral arguments in landmark cases that...

 

NBC Could change the Internet as we know it.

 

Fox News This seems to be a comeuppance for Twitter, Google, Facebook at the Supreme Court.

 

Bloomberg It's just uncharted territory. I mean, what would happen if you opened up the companies to that kind of liability?

 

CBS The Supreme Court is set to hear a case that could break the Internet.

 

Micah Loewinger The justices heard oral arguments for two cases, both concerning social media and terrorism and the future of speech and business on the Internet. On Wednesday, they heard Twitter v. Taamneh, a case which stems from a 2017 ISIS attack in Turkey.

 

ABC An urgent manhunt this morning for this man caught by surveillance cameras as he fired his way into Istanbul's Reina nightclub.

 

Emily Birnbaum About 39 people were killed in the attack.

 

Micah Loewinger Emily Birnbaum is a reporter with Bloomberg.

 

Emily Birnbaum And the family of one of the victims of the shooting sued Twitter and other social media companies saying that they had turned a blind eye while ISIS took their platforms and radicalized people around the world.

 

Micah Loewinger The court debated whether Twitter had facilitated terrorist violence.

 

Emily Birnbaum You have to prove Twitter has had substantial knowledge that Islamic State material was on their platform. And then you need to draw a line between that material and the actual act of terrorism. The justices wanted to figure out, is a social media platform like giving a gun to a terrorist? Is it like giving a pager to a criminal? How far should this law go?

 

Micah Loewinger But journalists and legal scholars were far more focused on Gonzalez v Google. The case argued on Tuesday a similar premise with much higher stakes. An American college student, Nohemi Gonzales, was killed in the 2015 ISIS terror attacks in Paris.

 

ABC Her parents claim YouTube's algorithms highlighted ICE's produced materials and further radicalized the extremists that killed their daughter.

 

CNN But Google says they aren't responsible, given the broad protections of Section 230 of the Communications Decency Act

 

60 Minutes Written before Facebook or Google were invented. Section 230 says in just 26 words that Internet platforms are not liable for what their users post.

 

Micah Loewinger Ah, Section 230 of the Communications Decency Act. When it was passed in 1996, it was supposed to solve some big problems of the early web. In 1994, a business called Prodigy, which hosted an Internet forum, was sued for $200 million because of a defamatory post written by an anonymous user. The court sided against Prodigy, saying the company, which moderated its forums, failed to take down the post. Other tech companies looked at this decision and basically said, Well, if we stop moderating what our users post or just quit hosting any third party speech, then we can't be held responsible. In other words, the decision incentivized giving up on moderation altogether. Oregon Senator Ron Wyden and one of the coauthors of Section 230 said he wrote it to be both shield and sword.

 

Senator Ron Wyden It offers protection from liability, but it also gives companies the authority and more importantly, the responsibility to foster the sort of Internet Americans want to be proud of.

 

Mark Joseph Stern It is the foundational law that has allowed for free speech on the Internet to flourish.

 

Micah Loewinger Mark Joseph Stern covers the courts for Slate.

 

Mark Joseph Stern And yet, until Tuesday, the Supreme Court had never actually heard a case about Section 230.

 

Micah Loewinger At a moment when both conservative and liberal justices might want to curb the power of big tech. He says there are two big issues in Gonzales view Google holding them back, one factual and one legal. The factual issue is that this lawsuit is just never going to succeed. This is a suit filed by the family of a victim of the 2015 Paris attacks. Her family claims that the attackers were radicalized on YouTube because YouTube had an algorithm that suggested ISIS recruitment videos to them while they were watching something else. There is absolutely no evidence that YouTube was recommending ISIS recruitment videos to the Paris attackers. There is no evidence that any of them saw these videos. And then the legal issue is that by creating the algorithm, YouTube had stepped outside of Section 230, that it had moved beyond immunity because it was sort of creating its own content, creating its own speech. And I think if you think about it for 10 seconds, it makes sense. If you think about it for 30 seconds, it falls apart.

 

Micah Loewinger Because it's algorithms that enable sites and users to navigate the constant content. That's why Yelp. Craigslist and Ziprecruiter submitted amicus briefs to the court, arguing that algorithms are essential to the architecture of the Internet, including content moderation, and that without Section 230 protection for algorithms, the Web would more or less fall apart. Justice Clarence Thomas wrote an opinion two years ago, arguing Section 230 goes too far. But Justice Brett Kavanaugh cautioned against unraveling the law.

 

Justice Brett Kavanaugh To pull back now from the interpretation that's been in place would create a lot of economic dislocation, would really crash the digital economy with all sorts of effects on workers and consumers, retirement plans and what have you.

 

Mark Joseph Stern He is heeding the warnings of the business lobby, the Chamber of Commerce, the very well-paid lobbyists and lawyers at Google and Meta and Twitter and believes them when they say this could potentially destroy the Internet.

 

Micah Loewinger Bloomberg's Emily Birnbaum says Google hired a very familiar face to make its case...

 

Emily Birnbaum Lisa Blatt. She has argued more cases before the Supreme Court than any other woman in history.

 

Micah Loewinger Blatt painted a catastrophic picture of what would happen to the Web without Section 230, where sites would either give up on content moderation.

 

Lisa Blatt And you basically have the Internet of filth, violence, hate speech and everything else that's not attractive.

 

Micah Loewinger Or overly sanitized.

 

Lisa Blatt Everything website's taking everything down, anything that anyone might object to. You have The Truman Show versus a horror show. You have only anodyne cartoon like stuff, and otherwise you just have garbage on the internet.

 

Micah Loewinger Representing the Gonzalez family is Eric Schnapper. You turn on your puter.

 

Eric Schnapper And the and the computers at YouTube send you stuff you didn't ask them for. They just send you stuff.

 

Emily Birnbaum He is a really talented and storied lawyer who has done a lot of work on civil rights, but it's been a long time since Eric Schnapper argued in front of the Supreme Court and he is not an expert on tech issues in any way.

 

Micah Loewinger There's only a small pool of people who have the skills and expertise to argue in front of the Supreme Court, and that pool gets even smaller when it comes to lawyers who have tech expertise and no conflicts of interest. That scarcity, by the way, is by design.

 

Emily Birnbaum The biggest tech companies have a lot of money, and they often will hire firms even if they don't use them just to conflict them out. Basically, we're going to say that you work for us just so that you can't work for our rivals.

 

Micah Loewinger It remains to be seen whether Schnapper swayed anyone. Meanwhile, Justice Neil Gorsuch wondered whether AI chat bots like Chat GPT should be liable.

 

Justice Neil Gorsuch Artificial intelligence can generate some forms of content, poetry, polemics, content that goes beyond picking, choosing, analyzing or digesting content, and that is not protected.

 

Micah Loewinger So if a chat bot tries to say, recruit you to ISIS or says something defamatory, is its programmer responsible? Are the justices out of their depth?

 

Justice Elena Kagan I mean, we're at a court.

 

Micah Loewinger Justice Elena Kagan.

 

Justice Elena Kagan We really don't know about these things. You know, these are not the nine greatest experts on the Internet.

 

Micah Loewinger The Supreme Court is supposed to hand down its decision by this summer. The justices may very well punt this case and the questions it raises to Congress or lower courts.

 

Emma Llanso But I think if it's not in this case, there will be future cases.

 

Micah Loewinger Emma Llanso is the director of the Free Expression Project at the Center for Democracy and Technology.

 

Emma Llanso And so I would say it's less that the court has decided they're doing nothing on tech and much more. The court has set its appetite and is now figuring out what it wants to choose next on the menu.

 

Micah Loewinger Section 230 has provided a shield for tech companies up to this point. But while lawmakers and court justices try to draw lines, lines between publishing and hosting content lines between discriminatory and neutral algorithms, Lonzo says there's a constitutional right that may ultimately shield big tech.

 

Emma Llanso Online services are in many ways like editors of the content that are on their services and have the right to say, I don't want to host racist speech or I don't want to have COVID-19 disinformation circulating on my service, or I want to run a blog that's just about cats. They can make any number of decisions that affect their users lawful, constitutionally protected speech. And that's not something that they get just from Section 230. Section 230 helps really operationalize that, right, and make it very easy to vindicate in court proceedings quickly. But if you took away Section 230, we would still have the First Amendment that puts strong limits on what Congress can do as far as restricting speech.

 

Micah Loewinger Free speech is one of the nation's most distinctive traditions. So is the freedom of corporations over the rest of this hour. We'll be looking at the idea of the free market and how it came to hold such a tight grip on the American imagination.

 

Brooke Gladstone Coming up, the most blockbuster PR campaign in American history

 

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