Google Supreme Court Case Tests Whether Tech Firms Are Liable for User Content

Section 230 helped the internet flourish. Now its scope is under scrutiny.

Section 230 of the 1996 Communications Decency Act says "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." Often called the law that made the internet as we know it possible, Section 230 generally shields online platforms, such as social media sites, from civil liability for content posted by users.

The U.S. Supreme Court directly addressed that provision's scope for the first time in February, when it heard oral arguments in Gonzalez v. Google. The case asks whether Section 230 immunizes Google, the owner of YouTube, from lawsuits alleging that the video platform's algorithms aided terrorists by recommending Islamic State videos to users. The justices are reviewing a 2021 ruling in Google's favor by the U.S. Court of Appeals for the 9th Circuit.

Both Republicans and Democrats have taken aim at Section 230 in recent years, claiming the provision unfairly advantages Big Tech. Those politicians see the legal dispute as a vehicle for achieving their policy objectives.

"Far from making the internet safer for children," declared a friend-of-the-court brief filed by Sen. Josh Hawley (R–Mo.), "Section 230 now allows platforms to escape any real accountability for their decision-making." Hawley is just one of many conservatives urging the Court to strip Google of its Section 230 protections in this case.

The trouble for Hawley and like-minded critics is that Google has solid legal arguments on its side. "Recommending content to users is classic publisher behavior," Corbin Barthold, internet policy counsel for TechFreedom, noted in an essay last fall for Reason's website. "It's what a newspaper does when it puts a story on page A1 instead of page D6. To hold a platform liable for how it presents user-generated content is to treat it as a publisher—exactly what Section 230 forbids."

Barthold added: "If ISIS had not uploaded videos to YouTube, YouTube would have had no terrorist content to serve up. This is a tell that the plaintiffs' suit is really about the user-generated content and is a loser under Section 230."

The law seems to be on Google's side. We'll find out later this term if a majority of the Supreme Court is on the law's side.

Comments

[Mickey Rat]

What is interesting, is with all the content control Youtube exercises over what is uploaded to the platform, like censoring COVID skepticism, how it managed to miss ISIS having channels on its site. It says much about where its priorities are.

[Diane Reynolds (Paul.)]

I'm glad you mentioned this. It seems... it seems that someone posts a two hour video where at minute 106, someone says, "You know, this COVID thing mostly hurts old people and isn't that big a threat to young, healthy people, so I dunno about this vaccine mandate thing" and *wham* instant demonetization or outright ban. But ISIS had "Death to America!" videos all over the place.

[Earth-based Human Skeptic]

In other words, institutionalization of typical progressive sensitivities. COVID = instant death, which justifies censorship, mandates, and camps for murderous vax resisters. Islam = oppressed religion of peace, which justifies delusional tolerance, covering up "unfortunate" events, and blaming murders on actual victims.

[Mickey Rat]

On breaking out of the elite woke monoculture.

"[Glenn Reynolds] continues:

'Our ruling class is particularly vulnerable to mind viruses for several reasons. First, it is a monoculture, so that what is persuasive to one member is likely to be persuasive to many. Second, it suffers from deep and widespread status anxiety — not least because most of its members have status, but few real accomplishments to rely on — and thus requires constant reassurance in the form of peer acceptance, reassurance that is generally achieved by repeating whatever the popular people are saying already. And third, it has few real deeply held values, which might otherwise provide guard rails of a sort against believing crazy things.'

Can we get out of this monoculture before it ruins everything?

Reynolds suggests, inter alia, that it would be most helpful if people had to again do their jobs, such as profitably running companies rather than indulging in intellectual fads that make them popular in the media but waste money that isn’t actually theirs."

[SQRLSY One]

Needs more diversity, equity, and inclusion reviews for the contents of this post... To be provided by an expert PHd of diversity, an expert PHd of equity, and an expert PHd of inclusion, PLUS some assorted experts of various ethnic-etc. studies... Maybe THEN you and your post can win some sort of "sensitivity award", but somehow, I doubt it. Call me a cynic or a skeptic for some unknown reason(s), about your getting your "sensitivity award", or even a stamp of approval.

[DesigNate]

This is the kind of post you should be doing. Just sayin.

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[Illocust]

The question is how do you force people to do their jobs? Most of these companies basically self run at this point, as long as you don't fuck up too badly, the company won't sink.

[Earth-based Human Skeptic]

How many of these people run companies? I see the core of woke elites "working" in media, academia, and political machinery. Or working at coffee shops hoping to break into the promised land.

[Diane Reynolds (Paul.)]

This is a pretty reasonable and unbiased assessment, I don’t know who Glenn Reynolds is (the name seems vaguely familiar) but this pretty spot on.

I’ve been looking around the media for the more subtle examples of bias and this is the kind of bias that I call the “fish in the water” bias. A fish isn’t aware of the water, or cognizant of “being wet”, they’re just part of the ecosystem. This explanation of bias transcends the “you’re being mean to ‘X'” and gets at the meta of bias.

This statement in particular hits home:

First, it is a monoculture, so that what is persuasive to one member is likely to be persuasive to many.

[Chumby]

Section 230 Humpty Dumpty Trumpty Stormy Daniels AAARRRRRGGGHHHHH

[SQRLSY One]

Ask, and ye shall receive wisdom! Knock, and the doors will be opened wide for ye! The pearls will yea verily be cast even unto the swine! Now it is up to YE, having been led to the water, whether ye will DRINK deeply, or if ye will just horse around!

Yeah Section 230, Let’s get down and dirty!

Trumpty Dumpty, He’s quite off-the-wall, Trumpty Dumpty won’t stay in His toilet stall He just goes ahead and takes His shits, Totally regardless of whereever He sits Whenever He simply, no way, can sleep, He Twits us His thoughts, they’re all SOOO deep! He simply must, He MUST, Twit us His bird, No matter the words, however absurd! He sits and snorts His coke with a spoon, Then He brazenly shoots us His moon! They say He’ll be impeached by June, Man, oh man, June cannot come too soon! So He sits and jiggles His balls, Then He Twitters upon the walls “Some come here to sit and think, Some come here to shit and stink But I come here to scratch my balls, And read the writings on the walls Here I sit, My cheeks a-flexin’ Giving birth to another Texan! Here I sit, upon the pooper, Giving birth to another state trooper! He who writes these lines of wit, Wraps His Trump in little balls, He who reads these lines of wit, Eats those loser’s balls of shit!”

[SQRLSY One]

Y'all who might care about such things... The edit function is broken, and replaces your with which then disappears...

EDIT FUNCTION BROKE MY PRECIOUS POETRY!!!! (Sad to say, Section 230 prevents me from suing Reason.com for this UTTERLY dastard deed, I'd bet.)

UN-mangled poetry re-posted below...

Ask, and ye shall receive wisdom! Knock, and the doors will be opened wide for ye! The pearls will yea verily be cast even unto the swine! Now it is up to YE, having been led to the water, whether ye will DRINK deeply, or if ye will just horse around!

Yeah Section 230,
Let’s get down and dirty!

Trumpty Dumpty, He’s quite off-the-wall,
Trumpty Dumpty won’t stay in His toilet stall
He just goes ahead and takes His shits,
Totally regardless of whereever He sits
Whenever He simply, no way, can sleep,
He Twits us His thoughts, they’re all SOOO deep!
He simply must, He MUST, Twit us His bird,
No matter the words, however absurd!
He sits and snorts His coke with a spoon,
Then He brazenly shoots us His moon!
They say He’ll be impeached by June,
Man, oh man, June cannot come too soon!
So He sits and jiggles His balls,
Then He Twitters upon the walls
“Some come here to sit and think,
Some come here to shit and stink
But I come here to scratch my balls,
And read the writings on the walls
Here I sit, My cheeks a-flexin’
Giving birth to another Texan!
Here I sit, upon the pooper,
Giving birth to another state trooper!
He who writes these lines of wit,
Wraps His Trump in little balls,
He who reads these lines of wit,
Eats those loser’s balls of shit!”

[SQRLSY One]

Wow, that one is busted too!!!! Less-than-sign BR bigger-than-sign just flat-out disappears! BR or ANY other contents, as far as I can tell...

[SQRLSY One]

Just an experiment… less-than-sign [ ] bigger-than-sign

less-than-sign [ blah-blah ] bigger-than-sign

less-than-sign [ > blah-blah < ] bigger-than-sign

[SQRLSY One]

> blah-blah < can be posted but reverse the order of the compare-values-signs and they all (and contents) disappear! Even without an edit being done! (And of course, poetry is mangled during an edit, too).

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[Jerry B.]

Next up, DOJ sues Apple for allowing Jan. 06 insurrectionists to use iPhones to coordinate their rebellion.

[Earth-based Human Skeptic]

And then suing Office Depot for selling printers and reams (REAMS!) of paper to traitors.

[Chumby]

Olive Garden for hosting a sedition party.

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[A Thinking Mind]

Section 230 of the 1996 Communications Decency Act says "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." Often called the law that made the internet as we know it possible, Section 230 generally shields online platforms, such as social media sites, from civil liability for content posted by users.

Okay, I've done some work on this and I want to rebut something. The 1996 Communications Decency Act was an attempt to censor online speech, not some genius way to protect free speech on the internet.

The law prohibited the use of "any telecommunications device by a person not disclosing their identity to annoy, abuse, threaten, or harass any person who receives such communication." It was also attempting to cleanse the internet of pornography by making every internet provided liable if a minor was able to use their service that allowed them to read about or see anything sexually suggestive.

Basically, if you put any pornography on the internet and someone under age 18 later saw it, would be fined and/or subjected to up to 2 years in prison.

Far from being some grand measure to protect the internet from being regulated, it was a heavily regulatory measure. What, then, was section 230? Section 230 was an attempt to encourage platforms to police themselves-they would not held be liable for making "good faith" moderation efforts to remove obscenity or excessive violence from their platforms. Because the purpose, as stated, was to "to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer."

So what about sec 230 (c) paragraph 1?

TREATMENT OF PUBLISHER OR SPEAKER- 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.

This distinction between platform and publisher was already enshrined by law in almost every state. A platform would be a book store or a newsstand. Basically, if a newsstand is selling a copy of the New York Times, and there's something in the paper defaming someone, you can't sue the guy at the newsstand, you have the sue the newspaper. The person simply purveying the paper isn't in charge of what's in it, just like someone operating book store is not in charge of content control for every book in the store. You can sue the publisher, who has editorial control over a book or newspaper's content, but not the person merely selling it.

Other than section 230, basically everything in the 1996 Communications Decency Act was stricken down...on FIRST AMENDMENT grounds. Because Section 230 isn't the internet's First Amendment, the actual First Amendment is the internet's First Amendment.

So would modifying or removing section 230 be disastrous for the internet as we know it? Not necessarily-it would depend on what replaces it. There's certainly much worse things that Congress could decide to do, like attempting to make internet platforms act as de-facto censorship arms of the government. But that sort of thing is already happening, even if it's not enshrined by law.

Would be terrible to define the difference between an internet platform acting as a platform, and acting as a publisher? If they're making "editorial" decisions about what content they allow, they are then clearly editing or curating their experience. If that enterprise is not taking place in good faith, is there some matter of liability they may be subject to?

In short, I'm not a fan of placing section 230 up on a pedestal. I don't think it's terrible, it's pretty useful in some ways. But to pretend it's the fabric holding together your internet experience is akin to those who pretended that ending Net Neutrality was going to destroy the internet.

[Earth-based Human Skeptic]

1996? Dude, that's like before most people were born.

[Diane Reynolds (Paul.)]

Unfortunately, this is kind of true, which is why the twinks at TechDirt don't understand what section 230 is. They're blissfully unaware the section 230 is the 230th section within a larger law, for instance. They don't realize there's a section 231 and a section 229.

[But SkyNet is a Private Company]

Easy now, herectic, don’t go against the Holy Scripture. Section 230 of the a constitution is SuperLaw, and was perfect the minute Adams and Madison and Jefferson wrote it.

[mad.casual]

Other than section 230, basically everything in the 1996 Communications Decency Act was stricken down…on FIRST AMENDMENT grounds. Because Section 230 isn’t the internet’s First Amendment, the actual First Amendment is the internet’s First Amendment.

This is the point I've made before. Wholly buying into their interpretation, Section 230 is essentially the fruit plucked from a poisoned tree and left to sprout on the same poisoned soil as its predecessor on the assumption that it's, somehow, not poisonous.

But to pretend it’s the fabric holding together your internet experience is akin to those who pretended that ending Net Neutrality was going to destroy the internet.

Worse. NN was never successfully legislated, we didn't see any real direct and broad effects or consequences. S230 (passed by Congress) has and we've seen its effects and consequences. Its literal and titular action posits Congress as sole arbiter of 'Good Samaritan's and 'offensive content' in direct opposition to the 1A. Further, S230 has been sold as a lie so long, that it's to the point that people feel convinced and convincing saying the internet couldn't exist without it and, worse still "It's the 1A of the internet."

They've literally reshaped the narrative such that, contrary to the 220 yrs. prior, where free speech exists despite Government/Congress, *libertarians* unabashedly and openly say, in unison like NPCs "Free speech exists because of Government/Congress."

[mad.casual]

Okay, I’ve done some work on this and I want to rebut something. The 1996 Communications Decency Act was an attempt to censor online speech, not some genius way to protect free speech on the internet.

Going further on points I’ve made before; the more you read about Wyden, Cox, Cubby v. Compuserve, and Prodigy v. Stratton Oakmont, the more obvious that, intentionally or not, what we have now is the inevitable outcome. Compuserve didn’t moderate and were found innocent. Wyden and Cox both felt that was wrongly decided. Prodigy moderated but they weren’t punished for conducting impartial moderation. They were punished for directly moderating up to and including at the executive level beyond any TOS or publicly-stated policy. Again, Wyden and Cox both felt that was wrongly decided.

The fact that they made the decisions they’ve made, presumably knowing the facts that they claimed to know, makes it seem like, at some point in the last several decades that, even if they didn’t know when they passed the law, they became aware of what it was doing since… and still support it.

Even in good faith, the ongoing advocacy for Section 230 is like the people in the Isaac Asimov books who continually say, “The Three Laws are infallible!” as robots run amok around them.

[Squirrelloid]

Except promoting content doesn't make you a publisher. That analogy is flawed. Let's go to your bookseller/newstand. If they choose to put the NYT out front, they still aren't liable if the NYT is libelous. Booksellers promote particular books all the time, including advertising, sales, and in-store placement. 'Recommended' videos is exactly equivalent to in-store placement.

[DRM]

Actually, recommending content produced outside the recommender's supervision is classic distributor behavior. It's what a bookstore does when it puts books by a particular author on display, or a newsstand does if it puts certain periodicals in a more prominent position, or the library when it holds a Banned Books Week. The editorial control exercised by a publisher is much more intimate.

And Section 230 as written does not declare that computer information services shall be immune from liability as a distributor. That's entirely the bad reading of the law by an idiot of a judge. The purpose and language of Section 230 gives systems that act like Prodigy (in the Stratton Oakmont case) the same low level of liability that distributors have regarding third-party content that systems that acted like CompuServe (in the Cubby case) have.

The correct ruling in this case, accordingly, is that Section 230 does not in any way protect Google from liability as a distributor, but that instead, as a distributor, Google is not liable under this fact pattern because of the First Amendment, per Smith v. California (1959).

[Full Of Buckminster]

Thanks. Very interesting. Smith v. California hinged on the fact that Smith wasn’t aware of the content at issue. If he was, could he have been liable? How about Google?

[DRM]

Sure, under Smith, if you can prove awareness, then you can pursue liability.

Of course, it's really easy for Google to demonstrate non-awareness; the algorithm involved had no way of comprehending the videos it was recommending, and the algorithm operated in a content-neutral fashion with no human intervention. It simply used a sophisticated version of "people who watched this video watched these other videos" and "people who created these videos created these other videos".

[Libertariantranslator]

Few things are more hopeful than the thought of Maga rednecks-with-green-teeth declaring Total War on Microsoft, Google and Faecebook wokies. When was the last time you were bothered by a Calico Cat or a Gingham Dog?

[Rossami]

Why is there an image of "320" at the top of an article about Section 230? Is there a pun or joke I'm missing?

[Earth-based Human Skeptic]

Are you making fun of Dyslectic-Americans? You racist!

[mad.casual]

The law, passed by Congress controlling Good Samaritans and speech on the internet, is the 1A of the internet.

2+2=5.

230=320.

How many lights do you see?

[Diane Reynolds (Paul.)]

How many lights do you see?

Cleveland.

[Chumby]

The Biden (D) inflation caused it to increase by 90.

[Brandybuck]

The "algorithm" is not a human being. It's an automatic process. There is no evil cabal manipulating content delivery to bamboozle the masses. It merely assesses the users' interests based on the users' history, and attempts to provide that kind of content.

And it's not very good at this either. I watch Star Trek on Amazon Prime and the next thing you know Amazon it telling me, "based on your interest in Star Trek we recommend "Mac and Me"".

So terrorist videos. Someone interested in news in the middle east has a likelihood of terrorism videos eventually showing up, especially if those videos based the violence test. By merely being interested in US politics I end up with pages and pages of inane MAGA content, along with pages and pages of inane Woke content. Legitimate political content of use to me is rare. The user content is crap, all the algorithm is doing is sorting it for me.

Section 230 still stands. You can't sue Google for what users post.

[rev-arthur-l-kuckland]

You have been proven wrong on this many times

[A Thinking Mind]

I agree with the conclusion-you can't sue Google for what someone posted, what someone else saw, and what actions they might have consciously taken after seeing the thing (I don't even think there's a strong connection between the video and the terrorist attack).

I just disagree that it's all thanks to section 230. We already don't hold people liable for the actions of others, especially when they're very nebulously connected.

[Brett Bellmore]

You write this as though there weren't human beings crafting and tuning the algorithm.

[TJJ2000]

[WE] definitely need MORE regulation of the internet. /s
Less than a year later, "[WE] have too many regulations....."

Which one people?
I'm getting pretty tired of endless *BS* excuses like this propping up the Nazi-Empire. Google didn't kill Gonzales daughter; ISIS did. Is Google now ISIS or what?

[TJJ2000]

Here’s a thought. Maybe there should be a video platform *CHOICE* that censors to customers demands. Instead of thinking ‘government’ and their almighty GUNS has to make censorship rules for everyone.

After all; Isn't that EXACTLY what everyone upset about the twitter files for? The Gov ----> GUNS telling every platform what to censor and what not to sensor?

[mad.casual]

Again, if Josh Hawley proposed a law titled, "Protection For 'Good Samaritan' Blocking and Screening of Offensive Material", you stupid, transparent fucks would be calling him out for separation of church and state on the "Good Samaritan" part, reminding us all how Congress can't protect some speech but not other speech without unequivocally censoring, and noting that evil Republicans (all of them, despite it just being Hawley) are trying to no-shit directly violate the 1A in letter and spirit.

It's in your archives, Reason rightly didn't like the CDA and made no exceptions for S230 until after it was obvious that FB, Twitter, Google, etc. had become literal fascist propaganda shells of companies serving the DNC. Then Reason started pimping the "Section 230 is the 1A of the internet." narrative with the full understanding of that's how Congress gets to choose the winners and losers on the internet and in Social Media in perpetuity. It doesn't matter if Google or FB or Twitter rises and falls, their replacements will still be beholden to Congress for protection. Woe to the retards on the day when someone, like Elon Musk, gets control of the protection racket and decides to rain down the oppression against them.

[Diane Reynolds (Paul.)]

I feel the need to fluff your comment by posting this:

Annoying Rule
JACOB SULLUM | FROM THE DECEMBER 1997 ISSUE

The Communications Decency Act lives. Last June, in Reno v. ACLU, the Supreme Court overturned the law's ban on "indecent" electronic communication that might be viewed by minors. But that case did not address a provision making it a felony to transmit "indecent" material "with intent to annoy…another person."

Annoy.com seems designed to test that prohibition–because it was. ApolloMedia, the San Francisco Web site producer that maintains this "meeting place for the uninhibited," was already working on its own political commentary site when Congress passed the CDA in February 1996. But "the law certainly had an impact on the tone and direction it took," says ApolloMedia President Clinton D. Fein.

[...]

"We deliberately explore the limits of what is acceptable," says Fein. That's a nice way of putting it. Annoy.com revels in vulgarity, including scatological references, pictures of genitals, and George Carlin's "seven dirty words." Which would seem to put it somewhere in the vicinity of that mysterious territory known as indecency. No one really knows where that is, of course–which is one reason the Supreme Court decided the CDA's child protection provision ran afoul of the First Amendment. ApolloMedia argues that, in light of that decision, the CDA's ban on annoying indecency, which applies to communication between adults, is unconstitutional on its face.

That's how ponytail libertarianism used to view the CDA in 1997. Guess what wasn't mentioned fucking once in that article?

[Diane Reynolds (Paul.)]

Shorter: Reason in 1997 saw the CDA as a bullshit hassle and a bummer head trip. What a difference a generation makes, eh?

[Diane Reynolds (Paul.)]

Who knew that a mere 25 years later, the same magazine and the same authors would be defending the Communications Decency Act so rabidly?

[mad.casual]

I've almost certainly invoked "How many lights do you see?" trivially. Above was not one of those times.

The across the board nature, it's like body snatchers or some lobotomy sort of thing.

[DesigNate]

Holy shit.

[Nobartium]

I blame the Kochs.

[mad.casual]

the CDA’s ban on annoying indecency, which applies to communication between adults, is unconstitutional on its face

And, again, poisoned fruit: "Banning indecency is ill-defined and unConstitutional on its face, but *protection* for censoring the same ill-defined and unConstitional indecency is totes OK."

Was the fruit a coconut that hit you on the head on the way down?

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[Chumby]

Section 230 Humpty Dumpty Trumpty Stormy Daniels AAAARRRRRGGGHHHHH

[Libertariantranslator]

Back when southern Klan newspapers bragged of militias putting down the Colfax "riot," and northern Committee Against Vice papers listed which books should be burned, communication was slow, presses were expensive and each half of the looter Kleptocracy had its own "pet" newspapers. THAT is the comfortable situation the entrenched soft machines seek to bring back. If it means kicking in doors, shooting pet dogs and setting fire to the courthouse, so be it. Russia has similar e-problems, which would likewise go away after a brisk nuclear "exchange" back to pre-electrical times.