Texas AG Asks SCOTUS to Narrow Scope of Section 230

The Supreme Court should “narrow the scope” of Communications Decency Act Section 230 and reverse the 9th Circuit’s decision shielding YouTube from liability in Gonzalez v. Google (docket 21-1333), Texas Attorney General Ken Paxton (R) wrote in a merits-stage amicus brief announced Thursday (see 2212070026).

The 9th U.S. Circuit Court of Appeals in June 2021 dismissed a lawsuit against YouTube for hosting and recommending ISIS proselytizing and recruitment videos. The 9th Circuit affirmed a decision from the U.S. District Court for the Northern District of California shielding YouTube and its algorithms from liability. Plaintiff in the litigation and SCOTUS petitioner is the estate of Nohemi Gonzalez, an American student who was killed in Paris in 2015 during an ISIS attack. The petitioner asked SCOTUS to revisit the 9th Circuit's decision. Google didn’t comment. The case is scheduled for oral argument Feb. 21 (see 2212190042).

Though Section 230 was designed in 1996 to give online publishers narrow protections from defamation liability, courts have “misinterpreted the law and allowed it to become a nearly all-encompassing blanket protection for certain companies, specifically internet and Big Tech companies,” Paxton said. These limitless legal protections prevent states from holding Big Tech accountable for law violations, even when infractions are unrelated to content publishing, said Paxton.

Courts infringe state sovereignty when they incorrectly hold that Section 230 “prevents” states from enforcing their laws, Paxton wrote in his brief: “Second, a court harms a State’s citizens whenever it misapplies Section 230 and improperly prevents those citizens from obtaining redress for wrongs committed online. This Court should stem the tide of those harms by faithfully interpreting Section 230.”

Sen. Josh Hawley, R-Mo., 26 states and a group of Israeli generals argued in previous briefs that Section 230 has been interpreted too broadly. California Attorney General Rob Bonta (D) told the high court that platforms like Google are exploiting user content for profit: "I urge the Supreme Court to adopt a more reasonable view of ‘publisher immunity’ under the Communications Decency Act that is in line with Congress’s intent.” The group included AGs from Virginia, Tennessee, Colorado, California, New York, South Dakota and Washington, D.C.

Google’s own algorithmic recommendations “aided and abetted” acts of terror described in the case, argued Paxton. This qualifies as affirmative actions that give rise to liability. Google faces liability if the petitioners can demonstrate that the algorithmic recommendations amount to “aiding and abetting,” he said. Google treats its content differently by using these algorithms, and Section 230 doesn’t shield platforms when they go beyond “merely hosting content” and “promote” certain videos over others, argued Paxton.