WASHINGTON — As the U.S. Supreme Court returns for a highly-anticipated term, it has been widely reported that a case dealing with Section 230 of the Communications Decency Act of 1996 has been taken up by the high court for review and final ruling. Such a ruling could significantly impact the benchmark internet free speech law that is heralded by advocates as the “First Amendment of the internet.”
Gonzalez v. Google challenges the legal shield that internet companies rely on when dealing with potential liability arising from content posted by third-party users. Brought by the family of Nohemi Gonzalez, a US citizen who was shot and killed with 130 other victims during the Paris attacks carried out by the Islamic State terror organization. Gonzalez’s family sued Google for reportedly promoting pro-Islamic State content which directly and indirectly spread the group’s radical message of a global caliphate and recruiting new members. Google’s YouTube video platform and its various algorithms are in question.
YouTube, the world’s largest video-sharing website, according to the plaintiffs gave material assistance and aided and abetted the group because the site allowed ISIS recruiters and supporters to use the platform as a recruitment funnel. Section 230 is implicated in the case because the Gonzalez family says that YouTube facilitated the spread of this material through its algorithms for video recommendations, raising the question of whether Google’s algorithms and their functions are protected by the Section 230 third-party liability shield.
Algorithms are essential on the internet and in digital marketing. YouTube and other platforms, like Twitter and Meta’s Facebook or Instagram, use preprogrammed algorithms to recommend content and information to their users. This is something that virtually every platform does, including streaming sites like Netflix, Hulu, and adult video tube sites like xHamster, XVideos, XNXX, and Pornhub.
These platforms rely on ad revenue and user engagement tied to user input and experience tied to the algorithms that the Gonzalez family claim aided and abetted in the death of their daughter at the hands of radical terrorists tied to the Islamic State. Eric Goldman, a professor of law at the Santa Clara University School of Law, told POLITICO that the court’s review of the law this term “may very well dictate whether or not we recognize the internet in the future.” Gonzalez’s family alleges that Section 230 only covers what they view as a traditional editorial and moderating function — the simple removal and posting of content that is illegal, obscene, and violates platform terms.
“I think that anything that’s considered to be algorithmic recommendations is and always has been part of traditional editorial function — there is no distinction. I think that Section 230 applies to them equally,” Goldman added. A federal appeals court has already ruled that Google is immunized from liability related to algorithms described in Gonzalez per Section 230 protections.
Passed in 1996 and retained after the rest of the pro-censorship Communications Decency Act was ruled unconstitutional by the Supreme Court, Section 230 grants interactive web platforms safe harbor from third-party liability. This means that platforms can’t be held liable for the actions of the users of the platform.
A review of Section 230 has been advocated staunchly by conservative Associate Justice Clarence Thomas. In a statement attached to the justice’s decision not to review the case Malwarebytes v. Enigma Software Group USA in 2020, Thomas said that the court should review the law to consider “whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by internet platforms.” The court will do just that by taking up the case of Gonzalez v. Google. Such a review also comes as other federal appeals courts have handed down conflicting rulings in cases dealing with social media moderation regulation laws in states like Texas and Florida.
Evan Greer, director of Fight for the Future had the following reaction concerning Thomas:
https://twitter.com/evan_greer/status/1576973340534657031?s=20&t=e9LvDqjJUXNPweYFQyorcQ
Other prominent Twitter users offered their reactions, as well:
There’s a reason regime Republicans and Democrats want to destroy Section 230: It protects the freedom of speech. Dismantling Section 230 will lead to more censorship of speech that challenges their authority—giving those in power more influence and control over public discourse.
— Justin Amash (@justinamash) October 3, 2022
The Supreme Court has announced it will hear a major challenge to Section 230 this term. Overturning the law would lead an end of the open internet, and likely usher in a new era of super moderation as companies become legally liable for user posts. https://t.co/OTqpZuRo9e
— Mike Stabile (@mikestabile) October 3, 2022
The internet should be free, uncensored and available to all.
— Woodhull Freedom Foundation (@WoodhullFreedom) October 3, 2022
