Google Asks SCOTUS to Dismiss Section 230 Lawsuit

Communications Decency Act Section 230 protects YouTube from liability for sharing terror-related content, and if those protections are eliminated, the internet could become a “litigation minefield,” Google argued before the Supreme Court Thursday in Gonzalez v. Google (docket 21-1333) (see 2212290055).

The 9th U.S. Circuit Court of Appeals dismissed a lawsuit against YouTube in June 2021 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 from liability under the Anti-Terrorism Act. The 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. The case is scheduled for oral argument Feb. 21. The Supreme Court received a filing Wednesday in Twitter v. Taamneh (docket 21-1496), a similar case concerning liability for third-party content (see 2301120061).

The Supreme Court should affirm the 9th Circuit’s decision, said Google. The Gonzalez estate has made “significant shifts” in its arguments from the petition, including in the questions presented, the filing said. The petitioners now agree that publishing includes sending users third-party material selected by the platform and that Section 230 bars claims of injury arising from harmful content shared in this way, said Google. Section 230 bars the petitioners’ claim of injury from people watching those videos.

Google dismissed U.S. government arguments saying platforms can be potentially liable for recommending third-party content (see 2212080067). The U.S. suggested YouTube’s recommendations could constitute the website’s own implicit message, meaning the platform is more than just a curator of information. The government’s theory ignores “that the complaint does not allege that YouTube distributed its own independently tortious message,” said Google. “Rather, the gravamen of the claim is that YouTube made ISIS’s speech more visible.”

Google also dismissed arguments from amici suggesting Section 230 “forecloses only defamation-like claims that have publication or speech as a formal element.” Such a reading would “flout the statutory text, render superfluous Section 230’s textual exceptions, and, given the ease of repleading torts, eviscerate Section 230.” Gutting Section 230, as the amici suggested, would encourage wide-ranging speech suppression and simultaneously the proliferation of more offensive speech, said Google. Platforms with the resources to moderate content could become “beholden to heckler’s vetoes” and be forced to remove any content even remotely objectionable, the filing said: On the other hand, sites might take a “see-no-evil” approach, resulting in no content moderation whatsoever.

The court can resolve Gonzalez by reversing Taamneh, Google said, noting its claims in Gonzalez are “materially identical” to those from the respondents in Taamneh. If no cause of action exists in Taamneh, “no cause of action exists for Section 230 to insulate, and the court need not reach the question of Section 230’s scope,” said Google. The company suggested no aiding and abetting liability exists in Taamneh because Twitter, the defendant, was disconnected from the acts of terror that injured the plaintiffs: If that’s the case, the direct-liability claims in Gonzalez also fail.