Overview
On October 3, 2022, the Supreme Court granted cert in Gonzalez v. Google, marking the first time that the Court will consider the scope of Section 230. As discussed previously on this blog, Section 230 has increasingly taken center stage in debates about censorship and content moderation. Yet, for the most part, courts have continued to interpret it expansively. The Court faces a delicate balancing act in considering the scope of immunity granted by Section 230.
The instant case arises from the 2015 terrorist attacks in Paris. Reynaldo Gonzalez’s daughter, Nohemi Gonzalez, was murdered in the terror attacks by ISIS terrorists. Her family members brought an action against Google, alleging that Google had aided and abetted ISIS by hosting their videos. Although simply hosting a video would normally be protected by Section 230, the plaintiffs additionally alleged that YouTube had affirmatively recommended ISIS videos, which helped ISIS recruit new terrorists. The district court, though, disagreed and dismissed the claim.
The district court’s decision was consistent with existing precedent. However, after the appeal had been briefed, Judge Katzmann in the Second Circuit wrote a dissent in Force v. Facebook, 934 F.3d 53 (2d Cir. 2019), arguing that recommendation of content should not be protected by Section 230. The Ninth Circuit subsequently ruled in Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093 (9th Cir. 2019) that recommending content does not remove Section 230 protection. The panel hearing the Gonzalez appeal therefore found itself in an unusual situation. Dyroff was Ninth Circuit precedent that governed the decision, which led the panel to uphold the dismissal. Two judges, though, were troubled by this outcome. One, Judge Berzon, concurred in the opinion but wrote separately to state that she would have held otherwise if not for Dyroff. The other, Judge Gould, dissented and argued that Judge Katzmann in the Second Circuit had been correct. After a petition for en banc rehearing was denied, Gonzalez sought cert on the specific issue of whether Section 230(c)(1) immunizes Internet companies for making targeted recommendations provided by other parties or if the liability is limited to only traditional editorial functions.
Despite there being no circuit split or even intra-circuit split, as every court to have considered the issue has agreed that targeted recommendations are protected by Section 230, the Supreme Court granted cert.
The Court also granted cert in Twitter v. Taamneh, a companion case to Gonzalez that was resolved on a different issue despite having similar facts. In Taamneh, the plaintiffs allege that Twitter, Google, and Meta played a role in the 2017 terrorist shooting in an Istanbul nightclub by failing to identify and remove ISIS materials. In a single opinion, the Ninth Circuit dismissed the Gonzalez claims under Section 230 but declined to reach Section 230 for the Taamneh claims because the district court had not done so. Twitter’s petition for cert argued that the Ninth Circuit improperly expanded the scope of the Anti-Terrorism Act, but it also requested that the Court deny cert in Gonzalez, stating that the denial of cert in Gonzalez would resolve Taamneh as well. Instead, the Court granted cert in both cases.
Implications
A Supreme Court ruling in Gonzalez could have significant implications for what has been a foundational pillar of internet law over the past two decades. If the Supreme Court were to issue an opinion upholding the Ninth Circuit’s opinion, it would resolve some questions about the scope of Section 230 and affirm 25 years of precedent on its broad immunity. A broad ruling, the other way, though, could scuttle what had been viewed as settled precedent and invite a flurry of cases challenging every content moderation decision made by internet platforms both large and small. For instance, although Section 230 is often viewed as protecting large Internet companies, it also protects smaller Internet platforms, such as blogs or the online comment sections of local newspapers. A court ruling limiting the protections of Section 230 could lead those platforms to shut down comments due to the expense and uncertainty of monitoring user submissions.
Even a narrow ruling could pose substantial administrative questions. If an Internet platform cannot recommend content algorithmically, how can it recommend content at all without risking losing Section 230 immunity? For instance, presenting videos or articles alphabetically, by date, or by number of views are all “recommendations” which could potentially expose Internet platforms to liability. This line of reasoning would invite line drawing about how involved an Internet platform needs to be in the recommendation for them to lose immunity, which will likely result in a wide range of outcomes through the courts.
Given Justice Thomas’s past statements on Section 230, a broad ruling that would upend Section 230 precedent is possible. Justice Thomas has been critical of the expansive interpretation given by the courts over the past 25 years and indicated agreement with Judge Katzmann’s Force dissent in his own statement denying cert in Malwarebytes v. Enigma Software Group, 592 U.S. ___ (2020).
