Solicitor General, Lawmakers Push SCOTUS on Gonzalez v. Google

The U.S. Office of the Solicitor General thinks Gonzalez v. Google should be remanded to the lower courts to consider whether YouTube’s recommendations make its owner Google liable under the Antiterrorism Act, it said in an amicus brief filed with the Supreme Court Wednesday (docket 21-1333).

Briefs from several U.S. states and other amici were filed Tuesday. Google isn’t protected from liability for its recommendations under Section 230 of the Communications Decency Act, the U.S said. Amicus briefs from members of Congress, Texas Attorney General Ken Paxton (R), Free Press and others also focused on Google’s liability for recommendations from its algorithm.

Section 230 “does not grant carte blanche for social media companies to invoke immunity for removing content that any eggshell-psyche user might possibly deem offensive,” said a joint amicus filing from 17 members of Congress including Sens. Ted Cruz, R-Texas; Lindsey Graham, R-S.C.; and Rep. Mike Johnson, R-Louisiana.

The protections against liability for information posted by others from Section 230 do bar claims against Google “premised on YouTube’s alleged failure to block or remove ISIS videos from its site” but “the statute does not bar claims based on YouTube’s alleged targeted recommendations of ISIS content,” said the solicitor general’s filing. “Encouraging a user to watch a selected video is conduct distinct from the video’s publication.” Gonzalez v. Google stems from the 2015 murder of Nohemi Gonzalez during the ISIS-planned terrorist attacks in Paris. Gonzalez's family argued Google is liable for the attacks because it owns YouTube, which hosted videos used by ISIS for recruitment.

The 9th Circuit U.S. Court of Appeals needs to determine if Google is liable under the ATA for recommendations of ISIS videos “without regard to the fact that the recommended videos appeared on YouTube’s own platform,” said the filing. “Because the court of appeals did not consider whether plaintiffs have adequately pleaded the elements of ATA liability on that theory, the case should be remanded so that the court may do so.”

The narrow scope of immunity Congress intended in Section 230 “has been largely eviscerated,” said the joint amicus filing from Cruz and other lawmakers. As written, the law provides immunity from liability only where platforms “remove or restrict access to third-party content that is ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable’” in “good faith” said the lawmakers. “Confident in their ability to dodge liability, platforms have not been shy about restricting access and removing content based on the politics of the speaker.” SCOTUS should return Section 230 to “its textual scope,” and remand the case to the lower courts, said the filing. “Even if Google is deemed not to be the speaker or publisher of the challenged content, that does not mean Google necessarily receives immunity,” the lawmakers said.

Google “went beyond passively hosting content,” said an amicus filing from Paxton, who's involved in other challenges to Section 230 and asked SCOTUS to reverse the 9th Circuit. “It actively promoted certain videos over others. Section 230 does not shield it from liability for doing so.” Concerns that adjustments to how Section 230 is interpreted would create huge changes in the internet are “hyperbolic,” said the filing. “Allowing petitioners’ claims here to proceed would not make Google liable for the content of every video it recommends,” said the filing. “Rather, Google faces potential liability only if petitioners can demonstrate that recommendations themselves amount to ‘aiding and abetting’ terrorism,” wrote Paxton.

The Institute for Free Speech and Michigan State University College of Law professor Adam Candeub -- formerly of NTIA -- also said the case should be remanded, in a joint amicus filing supporting neither party. “The courts need more information to resolve this case, because it is unknown whether Google’s recommendations at issue here are simply a pass-through mechanism for third parties’ speech, reflect users’ deliberate choices, or are Google’s own speech,” said the filing. “This case should be remanded to the district court to determine whether or how YouTube’s algorithms create and develop recommendations.”

Free Press and numerous other groups urged SCOTUS to take a middle path, neither stripping Section 230 protections nor treating them as a blanket immunity. The harms alleged by the petitioners stem from the third-party ISIS videos, which trigger Section 230 protections, Free Press said. “However, Google is wrong in arguing that Section 230 provides it blanket immunity for its decision to host and recommend videos promoting terrorism or other unlawful content,” said the Free Press filing. The language of Section 230 prohibits treating interactive computer services as publishers, but doesn’t provide immunity, it said. Section 230 “provides Google no defense” if “merely distributing such content qualifies as providing material support to terrorists.”

“This Court should adopt the narrow protection of internet firms supported by the text of Section 230 and allow the Gonzalez family their day in court to pursue the cause of action Congress has specifically created,” said the American Association for Justice. “Lower courts have wrongly read Section 230 to award ICSPs unconditional immunity from liability no matter how passive they remain in the face of even easily preventable and clearly foreseeable harm,” said a joint filing from the Cyber Civil Rights Initiative and several legal scholars. Internet companies “use Section 230 as a shield instead of making their products safer, exactly the opposite of what Section 230’s drafters intended,” said the Electronic Privacy Information Center.