A big concern of justices seems to be what happens if the court rules against Google, namely a wave of lawsuits.
Justice Brett Kavanaugh asked Eric Schnapper, representing the plantiffs, to respond to various friend-of-the-court briefs warning of widespread disruption.
“We have a lot of amicus briefs that we have to take seriously that say this is going to cause” significant disruption, Kavanaugh said.
Schnapper argued that a ruling for Gonzalez would not have far-reaching effects because even if websites could face new liability as a result of the ruling, most suits would likely be thrown out anyway.
“The implications are limited,” Schnapper argued, “because the kinds of circumstance in which a recommendation would be actionable are limited.”
Many of the briefs Kavanaugh referenced had expressed fears of a deluge of litigation that could overwhelm startups and small businesses, whether or not they held any merit.
Later, Justice Elena Kagan warned that narrowing Section 230 could lead to a wave of lawsuits, even if many of them would eventually be thrown out, in a line of questioning with US Deputy Solicitor General Malcolm Stewart.
“You are creating a world of lawsuits,” Kagan said. “Really, anytime you have content, you also have these presentational and prioritization choices that can be subject to suit.”
Even as Stewart suggested many such lawsuits might not ultimately lead to anything, Justices Kavanaugh and Roberts appeared to take issue with the potential rise in lawsuits in the first place.
“Lawsuits will be nonstop,” Kavanaugh said.
Chief Justice John Roberts mused that under a narrowed version of Section 230, terrorism-related cases might only be a small share of a much wider range of future lawsuits against websites alleging antitrust violations, discrimination, defamation and infliction of emotional distress, just to name a few.
“I wouldn’t necessarily agree with ‘there would be lots of lawsuits’ simply because there are a lot of things to sue about, but they would not be suits that have much likelihood of prevailing, especially if the court makes clear that even after there’s a recommendation, the website still can’t be treated as the publisher or speaker of the underlying third party,” Stewart said.