Section 230 of the Communications Decency Act grants limited immunity to providers of “interactive computer services,” but for nearly two decades, lower courts have ignored the plain language of that federal statute, providing instead the sweeping immunity Big Tech hides behind to censor conservative speech.
While later this morning the United States Supreme Court will hear oral arguments about the scope of Section 230 immunity in Gonzalez v. Google, the facts of that case make it unlikely that the high court will clarify — much less constrict — the limits of the statutory shield raised by giants such as Google, Twitter, and Facebook.
In 2015, ISIS launched a spate of attacks in and around Paris, including one at the La Belle Équipe bistro, where terrorists murdered a 23-year-old American woman, Nohemi Gonzalez. Gonzalez’s family later filed a lawsuit against Google, which owns YouTube, under the Antiterrorism Act, claiming that Google “aided” ISIS’s efforts to recruit members by allowing the terrorist organization to post videos on YouTube and by “recommending ISIS videos to users through its algorithms.” The Gonzalezes would later concede Google could not be sued for allowing ISIS to post videos on YouTube.
Without deciding whether Google could be liable under the Antiterrorism Act, the Ninth Circuit Court of Appeals held in Gonzalez v. Google that the tech giant could not be sued because it held immunity under Section 230 of the Communications Decency Act.
Of relevance to the lawsuit are two subsections of Section 230(c). Subsection (c)(1) states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” And subsection (c)(2) says “no provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).”
The Ninth Circuit held that Google was entitled to immunity under Section 230 because, in queuing “recommended videos” through algorithms, YouTube was functioning like “traditional search engines.” And case law holds that “search engines are entitled to § 230 immunity because they provide content in response to users’ inquiries ‘with no direct encouragement to perform illegal searches or to publish illegal content.’”
In their appeal to the Supreme Court, the Gonzalez family argues that YouTube is not merely opening its platform to others’ speech, but conveying its own “separate message” when it “implicitly tells the user that she ‘will be interested in’” the content of the videos that automatically load and play after the accessed video ends. Because YouTube is “conveying” its own “separate message,” Google is not entitled to immunity, according to the family.
Google counters that Section 230 provides it immunity because when showcasing “recommended videos” to YouTube users, it is acting no different than a publisher. Just as a publisher will craft an opinion portion of a newspaper with various editorials it believes readers will find of interest, YouTube acts as a publisher, the tech giant argues, when it uses algorithms to “sort and list related videos that may interest viewers so that they do not confront a morass of billions of unsorted videos.”
The Supreme Court received an avalanche of amicus curiae, or friend of the court, briefs supporting the opposing viewpoints, including one from the Biden administration that agrees with the Gonzalez family that Google lacks immunity under Section 230. The underlying facts of this case, however, leave the question of Section 230 immunity mired in confusion.
While the Ninth Circuit dismissed the Gonzalez family’s lawsuit based on Section 230 immunity, the more fundamental problem with the case is the family’s reliance on the Antiterrorism Act to hold Google liable for ISIS’s murder of their daughter. Tomorrow, the Supreme Court will hear oral arguments in the companion case of Twitter v. Taamneh, wherein the lower court dismissed similar claims, concluding the Antiterrorism Act did not create liability in analogous circumstances.
The Taamneh case also involves a lawsuit filed by the family of an ISIS murder victim, with Nawras Alassaf’s relatives seeking to hold Twitter and other tech companies liable for Alassaf’s death in the January 2017 terrorist attack at a nightclub in Istanbul. The Taamneh lawsuit argues the tech companies were liable under the Antiterrorism Act for knowingly providing substantial assistance to international terrorism because “despite extensive press coverage and government pressure,” the companies failed to “act aggressively to keep ISIS content off those platforms.”
A trial court originally dismissed the Taamneh family’s lawsuit, finding they had failed to allege facts sufficient to create liability for the tech giants under the Antiterrorism Act. Because the trial court dismissed the lawsuit, it did not reach the question of Section 230 immunity. On appeal, the Ninth Circuit reversed and held that the family’s allegations were enough to state an “aiding-and-abetting claim.” But because the question of Section 230 immunity had not been raised, the federal appellate court did not address the tech companies’ assertion of immunity.
Twitter and the other tech companies named in the Taamneh lawsuit appealed to the Supreme Court and argued in their brief that under the Antiterrorism Act, liability can result only if it has “provided substantial assistance for a specific act of international terrorism,” meaning in the Taamneh case, the attack on the Istanbul nightclub. And because the family had not even alleged the terrorists behind that attack had used Twitter, the tech companies maintain the lawsuit must be dismissed.
While the family’s loss is obviously tragic, their Antiterrorism Act claim is exceedingly weak and likely to fail, which will in turn doom the Gonzalez family claim. And with no basis to sue under the Antiterrorism Act, the Supreme Court will have no need to reach the scope of Section 230 immunity. In fact, in its briefing to the high court in the Gonzalez case, Google argues that the justices need not even reach the issue of immunity because reversal in the Taamneh case compels the dismissal of the Gonzalez family’s Antiterrorism Act lawsuit as well.
Thus, those hoping for some clarity on the scope of Section 230 immunity in Gonzalez v. Google should temper their expectations. Nonetheless, as Justice Clarence Thomas made clear in the statement he issued in conjunction with the Supreme Court’s denial of a petition to appeal in Malwarebytes, Inc. v. Enigma Software Group, the lower courts have “long emphasized nontextual arguments when interpreting § 230, leaving questionable precedent in their wake.”
In his statement, Thomas exposed the fallacious interpretation lower courts give § 230 by reading Section 230(c)(1) as establishing an expansive grant of immunity. That section, however, as Thomas explained, does not provide a grant of immunity, but merely “ensure[s] that a company (like an e-mail provider) can host and transmit third party content without subjecting itself to the liability that sometimes attaches to the publisher or speaker of unlawful content.” It is the second subsection, Section 230(c)(2), that “provides direct immunity from some civil liability,” the originalist justice stressed.
But the lower courts have treated Section 230(c)(1) as providing a near-blanket immunity to “interactive computer service” providers — and wrongly so, Thomas implies. This precedent creates immunity much beyond what Congress provided for, the justice suggests.
Sen. Ted Cruz, R-Texas, and Rep. Mike Johnson, R-La., along with 15 other members of Congress, press Thomas’ point in a friend of the court brief filed in the Gonzalez case. That amicus curiae brief details the development of case law interpreting Section 230 and exposes how the lower courts have erred by viewing Section 230(c)(1) as establishing a statutory grant of immunity. This incorrect interpretation of Section 230(c)(1), Cruz and the co-signatories argue, allows tech companies to improperly censor “conservative viewpoints on important political and social matters.”
Thomas’ statement in Malwarebytes v. Enigma and the amicus curiae brief headlined by Cruz provide a convincing argument that precedent interpreting Section 230(c)(1) as providing a grant of immunity conflicts with the statutory language and consequently creates an over-expansive grant of immunity to Big Tech.
While Tuesday’s oral argument in the Gonzalez case may delve into this issue, the Supreme Court is likely to sidestep the question of the scope of Section 230 immunity for now and resolve the companion cases based on a finding that the allegations are insufficient to create liability for tech companies under the Antiterrorism Act.
Nonetheless, Gonzalez’s oral argument may provide helpful insight into the views of the other justices on the question of Section 230 immunity — something that will prove invaluable in future cases brought by conservatives subjected to viewpoint censorship by Big Tech.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.
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