For over three years, Justice Clarence Thomas has campaigned for the Supreme Court to hear a case interpreting Section 230, the famous “twenty-six words that created the internet” (to quote Jeff Kosseff). That day finally came on Tuesday, when the Court heard oral argument in Gonzalez v. Google. But if the oral argument is any indication, those hoping the justices would use this case to rein in Big Tech are likely to be disappointed. The Gonzalez petitioners did not have a good day at court, and it’s hard to see a path to a real victory based on the tenor of the discussion.

As I have discussed in greater detail elsewhere, the Gonzalez petitioners seek to hold Google liable for algorithmic amplification of ISIS recruitment videos. Nohemi Gonzalez was one of the many victims of the 2015 ISIS attacks in Paris. The suit alleges that YouTube violated the Anti-Terrorism Act by hosting ISIS videos seeking to incite violence worldwide and recommending those videos to users Google knew were likely to respond positively to this content. Google claimed immunity for ISIS’s speech under Section 230, but petitioners argue that Section 230 should not apply to YouTube’s recommendation of this problematic content.

Petitioners seemed to be at a disadvantage going into the oral argument. Many Supreme Court oral argument specialists were conflicted out of the case, so Gonzalez was represented by Eric Schnapper, an NAACP employment discrimination lawyer with 22 prior Supreme Court cases, but who is not an expert in tech policy. This inexperience in tech policy seemed to show, as Schnapper struggled to explain what precisely his argument was. (Multiple justices echoed Justice Samuel Alito’s lament: “I’m completely confused by whatever argument you’re making.”) In a sense, this is unsurprising, as Gonzalez’s argument has shifted several times over the course of litigation. Schnapper seemed to whiff on several softball questions the justices threw his way.

The justices seemed stymied by Schnapper’s inability to identify where to draw the line between user speech and the platform’s own speech. Justice Elena Kagan noted that it seems correct that at some point, a platform’s decision to recommend particular content is the platform’s own speech. But she and other justices found it hard to identify a demarcation point that was consistent with the statute and minimized unintended consequences. The petitioners did not really answer that question.

The government, arguing in support of petitioners, suggested that Section 230 should never apply to a platform’s recommendation. As the justices noted, this answer would eviscerate the statute’s text, which immunizes liability for publishing third-party content, and would lead to a significant increase in litigation. The government seemed unconcerned, arguing that most claims for recommendation-based liability are likely to fail on merit anyway. But this ignores Section 230’s value as a limitation on litigation costs and a deterrent to strategic, bad-faith claims designed to induce settlement. It’s a fair point that many of the worst-case scenarios seem far-fetched as theories of liability. But one should never underestimate the creativity of trial lawyers, especially when chasing deep pockets such as Google.

Perhaps the biggest surprise was how hostile Justice Thomas seemed toward Gonzalez’s arguments. Since 2019, he has been the loudest voice on the Court for taking a Section 230 case to narrow the scope of the statute. But he seemed unable to accept the Gonzalez petitioners’ arguments. On the other hand, Justice Ketanji Brown Jackson (who has not previously written on Section 230) seemed the most likely to find for Gonzalez and interpret Section 230 far more narrowly than lower courts have done.

Of course, it’s a mistake to make predictions based on oral arguments alone. But Tuesday’s performance suggests it’s increasingly likely that the Court will find for Twitter in Wednesday’s companion case (Taamneh v. Twitter, which will decide whether allowing ISIS members to use the social media platform’s services violates the Anti-Terrorism Act), and then will dismiss Gonzalez as moot. Justice Amy Coney Barrett suggested this as a path forward.

There is certainly a bloc of justices, including Justice Thomas, interested in reining in the lower courts’ expansive interpretation of Section 230. But Gonzalez seems to be an imperfect vehicle through which to do so. I suspect this bloc would rather join an opinion mooting this appeal and save their ammunition for another case in which the question is more cleanly presented. That said, a victory for either Gonzalez or Google can serve as a vehicle for significant change to existing law, depending on how the decision is written. Today’s argument is just the beginning of potentially seismic changes to the legal landscape governing the internet ecosystem.

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