DOJ Urges SCOTUS: Rethink Google’s Immunity in Section 230 Case

The Justice Department filed the amicus brief in the case Gonzalez v. Google, which questions whether Google and its YouTube division are liable for circulating recruitment propaganda posted by Islamic State radicalizing users to engage in terrorist such as the 2015 attacks in Paris.

“The court should give Section 230(c)(1) a fair reading, with no thumb on the scale in favor of either a broad or a narrow construction,” the brief states. “In the view of the United States, a plaintiff’s claim seeks to ‘treat’ a website provider as ‘the publisher or speaker’ of third-party content, 47 U.S.C. 230(c)(1), if liability turns on the provider’s failure to block or remove unlawful content from its platform so that avoiding liability would require the defendant to withdraw or refuse to publish that content.”

“By contrast, if the plaintiff’s claim seeks to hold the defendant liable for other aspects of its own conduct, imposing liability does not ‘treat’ the defendant as a ‘publisher or speaker,’ even if third-party speech is essential to the plaintiff’s cause of action,” the brief notes.

The petitioners in the case represent the late Nohemi Gonzalez, a college student studying in France at the time, who was killed by Islamic State militants during the attacks.

There are two central points of contention in the lawsuit: recommendation algorithms and whether platforms like YouTube can be classified as a publisher of content. As currently interpreted by several courts, Section 230 is a critical protection that grants safe harbor and immunization from legal liability for the publication of web content by some third-party users. Platforms like social media networks and adult content sites rely on Section 230 to justify good-faith self-regulation and moderation. But, the law remains controversial among both major political parties.

Some Democrats have argued that Section 230 allows large technology companies to get away with the liability of causing mental and behavioral harm to users, especially minors, and for permitting the spread en masse of content that is classified as misinformation, disinformation, bigotry, racism, and many other unsavory forms of expression.

Some Republicans have expressed the desire to see Section 230 repealed or reformed because they believe the law systematically censors conservative and far-right voices on social media networks and major search engines.

Proponents of Section 230 worry that Gonzalez v. Google and another court case dealing with other aspects of free speech on the internet could limit online speech.

Other amicus briefs filed in favor of the family of Gonzalez include 27 state attorneys general, child safety organizations, the anti-porn group National Center on Sexual Exploitation and several Republican lawmakers. These Republican lawmakers include controversial members of Congress like Texas Sen. Ted Cruz and Missouri Sen. Josh Hawley.