Supreme Court Sides With Google, Twitter in Section 230 Cases

Tech groups lauded victories in Gonzalez v. Google (21-1333) and Twitter v. Taamneh (21-1496) (see 2304040064). In an unsigned opinion, the high court said “much (if not all)” of the Gonzalez complaint “seems to fail under either our decision in Twitter or the Ninth Circuit’s unchallenged holdings below.” The court unanimously said Twitter didn’t aid and abet the terror attack at issue in Taamneh. In Gonzalez, the court declined to “address the application of §230 to a complaint that appears to state little, if any, plausible claim for relief. Instead, we vacate the judgment below and remand the case for the Ninth Circuit to consider plaintiffs’ complaint in light of our decision in Twitter.”

“Countless companies, scholars, content creators and civil society organizations who joined with us in this case will be reassured by this result,” said Google General Counsel Halimah DeLaine Prado. “We'll continue our work to safeguard free expression online, combat harmful content, and support businesses and creators who benefit from the internet.”

“The Court correctly recognized the narrow posture of these cases and declined to rewrite a key tenet of U.S. Internet law, preserving free expression online and a thriving digital economy,” said Computer & Communications Industry Association President Matt Schruers. “No one wants to see extremist content on digital services -- especially the services themselves, which are constantly vetting millions of pieces of content in real time to promote trust and safety and protect users, consistent with their terms of service.” Content moderation is an “imperfect but vital tool in keeping users safe and the internet functioning,” said NetChoice Litigation Center Director Chris Marchese. “The Supreme Court’s decisions protect free speech online by maintaining Section 230.”

Weakening Section 230 isn’t the proper approach to addressing dominant platforms’ role in internet users’ lives, said Public Knowledge Legal Director John Bergmayer: “Without Section 230, no new competitor is likely to arise to challenge the dominance of Google, Meta, or Twitter. Policymakers should focus their attention on addressing the power of these platforms through new laws to strengthen antitrust and promote competition against the largest platforms.”

The complaint in Gonzalez stems from a 2015 terrorist attack in Paris, in which ISIS attackers killed 130 people, including Nohemi Gonzalez, a 23-year-old U. S. citizen. Gonzalez’s family sued Google, alleging the platform aided and abetted and conspired with ISIS through its content on YouTube and is therefore liable for the harm. A district court dismissed the complaint for failure to state a claim but allowed the plaintiffs leave to amend the complaint. Plaintiffs stood by their claim and appealed. The 9th Circuit U.S. Court of Appeals affirmed the district court’s decision in a consolidated opinion addressed Taamneh.

The Supreme Court on Thursday cited the 9th Circuit’s finding that most of the plaintiffs’ claims were barred by Communications Decency Act Section 230. The 9th Circuit noted the sole exceptions were liability claims “based on allegations that Google approved ISIS videos for advertisements and then shared proceeds with ISIS through YouTube’s revenue sharing system,” the high court said: These potential claims aren’t barred by Section 230, but the plaintiffs failed to state a viable claim regardless. The high court noted the plaintiffs didn’t seek review of the 9th Circuit’s finding on the potential revenue-sharing claims. “In light of those unchallenged holdings and our disposition of Twitter, on which we also granted certiorari and in which we today reverse the Ninth Circuit’s judgment, it has become clear that plaintiffs’ complaint -- independent of §230 -- states little if any claim for relief,” the Supreme Court said.

If the Supreme Court were to take aiding-and-abetting liability “too far,” ordinary merchants “could become liable for any misuse of their goods and services, no matter how attenuated their relationship with the wrongdoer,” Justice Clarence Thomas wrote in the unanimous opinion in Taamneh. He noted platforms merely delivering mail or emails could be held liable for the “tortious messages contained therein.” Courts have “long recognized” the need to “cabin” aiding-and-abetting liability to “cases of truly culpable conduct,” he wrote.

The family of Nawras Alassaf, a victim a 2017 ISIS terrorist attack on the Reina nightclub in Istanbul, sued Facebook, Google and Twitter, arguing the social media platforms aided and abetted the attack because ISIS members generally use the platforms to communicate and recruit. A district court dismissed that argument, but the 9th Circuit reversed the decision. The Supreme Court said the relationship between Twitter and the Reina attack is “highly attenuated.” The plaintiffs “make no allegations that defendants’ relationship with ISIS was significantly different from their arm’s length, passive, and largely indifferent relationship with most users,” wrote Thomas. “And their relationship with the Reina attack is even further removed, given the lack of allegations connecting the Reina attack with ISIS’ use of these platforms.” The plaintiffs provide no reason to believe Twitter was “consciously trying to help or otherwise participate in the Reina attack, and they point to no actions that would normally support an aiding-and-abetting claim.” Attorneys for the plaintiffs, including Eric Schnapper, who led oral argument for the victims in both cases, didn’t comment Thursday.

Sen. Ron Wyden, D-Ore., welcomed the high court’s recognition that even without Section 230, plaintiffs wouldn't have won their lawsuits: “As is the case with a majority of suits blocked on 230 grounds, the First Amendment or an inability to prove the underlying claims would lead to the same result,” he said. Sen. Marsha Blackburn, R-Tenn., urged Congress to “reform” Section 230, accusing companies of turning a “blind eye” to child sexual-abuse material, drug sales and border smuggling activity on their platforms. Senate Judiciary Committee Chairman Dick Durbin, D-Ill., called Thursday’s ruling “disappointing but unsurprising,” saying justices passed on a chance to “clarify that Section 230 is not a get-out-of-jail-free card for online platforms when they cause harm.” Tech has failed to self-regulate, so Congress “must step in, reform Section 230, and remove platforms’ blanket immunity from liability,” he said.