The Volokh Conspiracy

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Google, Section 230 & Nohemi Gonzalez

Philip Hamburger's Op-Ed at the Federalist on a case to be argued next week


On Tuesday, the Supreme Court will hear arguments in Gonzales v. Google, a case raising whether Section 230 protects Big Tech from federal laws against aiding terrorism—and possibly also state laws against tech censorship.

Philip Hamburger has an important analysis of the case at the Federalist: "How A Terrorist Victim Can Help The Supreme Court Address Section 230."   

In 2015, Nohemi Gonzalez—a 23-year-old American studying in Paris—was gunned down by Islamic State (ISIS) terrorists while dining at La Belle Equipe bistro. The U.S. Supreme Court will consider these wrenching facts of Gonzales v. Google on Feb. 21. Bound up with Nohemi's fate is the fate of Section 230.

That 1996 federal statute privileges Big Tech, excusing it from laws that constrain newspapers and other old-style communication. But does it relieve Big Tech from complying with all laws affecting communication? For example, those against aiding terrorism?

Nohemi's relatives and estate have sued Google—the owner of YouTube—for algorithmically encouraging followers of ISIS to view ISIS videos, in violation of the law against assisting terrorism. Google responds that Section 230 gives it sweeping immunity. It claims to be privileged for a host of abuses, including aiding terrorism and censoring Americans.

Big Tech thus takes a big interpretation of Section 230. The statute and the Constitution, however, suggest Big Tech has overplayed its hand.

The statutory problem is textual. According to Google and the rest of Big Tech, YouTube enjoys protection as a "publisher" under Section 230(c)(1) for its "editorial functions," whether in sharing and recommending videos or in blocking them. But that's not what the section says.

It says such companies shall not be "treated as the publisher" of information provided by others. So Google, comically, is seeking to be treated as a publisher under a section that says it shall not be treated as a publisher. Its argument proves too much.

The context confirms the narrowness of the text. The section was a response to cases such as Stratton Oakmont v. Prodigy, a defamation case in which Prodigy was held to be "a publisher rather than a distributor." A key element in defamation cases is to show that the defendant is the publisher of the defamation. Section 230(c)(1) protected against such suits by saying the companies should not be "treated as the publisher" of information supplied by others.

This leads to the sensible conclusion that YouTube and Google should not find any shelter in Section 230 for supporting terrorism. Being a publisher is not an element of a case for aiding terrorism, so Section 230(c)(1) gives them no cover.

The piece goes on to explain that "if the Supreme Court accepts Big Tech's big rewriting, the decision in Gonzales v. Google could privilege Big Tech both as to terrorism and censorship." Hamburger argues this misreads Section 230 and that the statute is unconstitutional:

Section 230 is especially unconstitutional because it privileges electronic communication over print and in-person communication, thereby subjecting these older modes to discriminatory restraints. This is speaker discrimination, which the Supreme Court rightly held unconstitutional in Citizens United v. FCC. 

The speaker discrimination, moreover, comes with viewpoint discrimination. Newspapers tend to have more local or regional perspectives than do Big Tech companies. So, by privileging electronic carriers, Section 230 favors their relatively national and international views and disadvantages the localized views of more traditional modes of communication.

Hamburger's concern is both terrorism and censorship:

The perverse beauty of Gonzales v. Google, from the Big Tech perspective, is that Big Tech could secure Supreme Court support for the big interpretation in a case that does not involve censorship. Terrorism could be a backdoor for censorship to sneak in unobserved.

Nohemi's murder was utterly unjustified. So is the big interpretation of Section 230. It contravenes the statute's text. It departs from the concerns underlying the act's adoption. It privileges big tech to aid terrorism and impose censorship. And the statute is unconstitutional.