The Supreme Court's oral argument in Gonzalez v. Google left most observers in a muddle over the likely outcome. In three hours of questioning, the Justices defied partisan stereotypes and asked excellent questions, but mostly just raised doubts about how they intended to resolve the case. I had the same problem while listening to the argument in for a Cyberlaw Podcast episode (No. 445) that will be mostly devoted to Gonzalez.
But after going back to look at each Justice's questions separately, I conclude that we do in fact have a pretty good idea how the case will turn out: Gonzalez will lose, and so will Google, whose effort to win a broad victory is likely to be killed – and most enthusiastically by the Court's left-leaning Justices.
First, a bit about the case. Gonzalez seeks to hold Google liable because the terror group ISIS was able to post videos on YouTube, and YouTube recommended or at least kept serving those videos to susceptible people. This contributed, the complaint alleges, to a terror attack in Paris that killed Gonzalez's daughter. Google's defense is that section 230 makes it immune from liability as a "publisher" of third-party content, and that organizing, presenting, and even recommending content is the kind of thing publishers do.
