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.

Comments

[Stephen Lathrop]

I foresee a stumbling block. On the question what it means to publish something, lawyers have their own time-tested definition to apply. But very few lawyers seem to understand what publishing is, as an activity. Section 230 seems to apply to the latter. Opportunities for conflation and slipshod analytical thinking abound. That could lead to a troubled decision from SCOTUS.

[John F. Carr]

If Section 230 is unconstitutionally discriminatory, does any party to the case have standing to challenge it on that basis?

[Zarniwoop]

I am unpersuaded by the slipshod reasoning here:

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.

This elides the difference between “what we say” (the recommendation itself, which Google/YouTube make) versus “what the video itself says” (information provided by others).

It might well be the case that the "what we say" component should still actionable, but conflating the two doesn't help clarify what the proper bounds of that are, or should be.

[Stephen Lathrop]

Zarniwoop, what if the, "proper bounds," you mention look to most people like complete conflation? Which is what the customary, pre-230 liability standard for libel did look like to most people, including, apparently, the Congress which passed Section 230.

There is a way to untangle the conflation, by the way. It goes like this. You define what publishing activities are. And you define what a contributor is. Then you think hard on the question what role each kind of activity—publishing activity or contributing activity— plays to inflict damage on a defamation victim.

For folks who understand what publishing activity is practiced to accomplish, it does not take much reflection to conclude that when libel occurs the publisher, by far, inflicts the greater share of the damage. A would-be contributor acting with actual malice, and maybe figurative malice besides, would normally be almost powerless to do much damage on his own. Absent access to publishing activities most contributors are powerless to perform by themselves, defamation would scarcely trouble anyone.

Publishing is a potent force multiplier for expressive activity of all kinds, including damaging activity. It is on that basis that the customary doctrine can be justified, that publishers share defamation liability with their contributors. Of course, the Congress which passed Section 230 gave no thought to that. Just as most would-be contributors to social media give no thought to it either.

So, if you think of it along those lines, you ought to conclude the appearance of conflation is an illusion. Contributors acting irresponsibly give rise to causes of defamation. Publishers acting irresponsibly inflict most of the damage. Both should be held liable—each for their separate contributions to inflicting the damage.

[Zarniwoop]

you ought to conclude the appearance of conflation is an illusion.

Both should be held liable—each for their separate contributions to inflicting the damage.

Can you first make up your mind as to whether Google's "editorial" (automated selection) contributions are the same or different from video content that is unambiguously in the "information provided by others" bucket?

Your words, in the same paragraph, swing wildly from "illusion" to "separate contributions". This is the same unabashed imprecision that Hamburger engages in.

[Stephen Lathrop]

Can you first make up your mind as to whether Google’s “editorial” (automated selection) contributions are the same or different from video content that is unambiguously in the “information provided by others” bucket?

Why do you suppose that matters? If a publisher at its own initiative creates and curates an audience for video content, and recruits from contributors video content for publishing, including a contribution which it distributes which includes false and damaging defamatory allegations of fact, do you suppose the publisher is in fact without agency in inflicting that damage? That would be absurd. The extent of the damage, especially, is far more a result of the publisher's activities than it is of the contributor's.

[Zarniwoop]

There is a way to untangle the conflation, by the way. It goes like this. You define what publishing activities are. And you define what a contributor is. Then you think hard on the question what role each kind of activity—publishing activity or contributing activity— plays to inflict damage on a defamation victim.

That might be possible … if someone convinces Congress to pass a statute that does that. Until that happens, we get to work with the § 230 that actually exists, not hand-way assertions that it’s an easy problem to solve.

[Ed Grinberg]

Google / YouTube want to be able to censor content. But only the content they dislike (which, apparently, does not include ISIS videos). I can see why they got rid of "Don't be evil" as their company motto!

[Kenneth Almquist]

ISIS videos are one of thing that Google wants to censor. They have been using algorithms to flag possible ISIS videos since 2017. What they don't want is to be liable for any ISIS videos that they overlook.

[David Nieporent]

Google / YouTube want to be able to censor content. But only the content they dislike

I mean, that's one of those things that's meant to sound profound, but is just kind of dumb. Of course they don't want to 'censor' content they like. Who would?

[Tallman]

>Who would?

Ideally, they'd censor content pursuant to clear, non-ideological rules, regardless of whether or not they personally like it i.e., act like an actual "platform."

[Sarcastr0]

No, you don't want hard and fast rules about content. That would be where all the censorship lies.

[ObviouslyNotSpam]

"Ideally", at someone else's expense...

[MatthewSlyfield]

But does it relieve Big Tech from complying with all laws affecting communication? For example, those against aiding terrorism?

No and No.

That said, I think it's an extreme stretch to call what Google has actually done "aiding terrorism".

Would AT&T or Verison be "aiding terrorism" by selling phones to people accused of being terrorists? Should they be required to cut off pre-existing phone service to people accused of terrorism?

[Zarniwoop]

Would AT&T or Verison be “aiding terrorism” by selling phones to people accused of being terrorists?

I doubt it. Nor is it "aiding terrorism" to include them in a listing of people (what us old timers might call a phone book), or making search results available, or maybe even an automated recommendation of similar people/content.

Should they be required to cut off pre-existing phone service to people accused of terrorism?

I have little issue with being required to cut off phone numbers specifically ID'd by the government in some form of legal process, and also no problem with being asked to take down videos specifically ID'd by the government in some form of legal process.

Because that's different that requiring a phone company (or Google) to do that policing themselves, on pain of legal liability if they miss someone and there's an after-the-fact allegation that the phone number/video is causally related to an injury.

[Tallman]

> I think it’s an extreme stretch to call what Google has actually done “aiding terrorism”.

Even if true, it's not relevant here. This is an appeal of a motion to dismiss b/c of Section 230.

[Tom Dial]

Or Apple, which, with its claimed superiority of security and willingness to go to the mat to protect its users' iPhones from search (even under a proper search warrant).

[ReaderY]

I find the part of the argument that says treating electronic communications differently from print communications constitutes viewpoint discrimination weak. Are special regulations for street protests viewpoint-discriminatory? After all, the sorts of issues people communicate through street protests are different from the sorts they communicate through other means.

The idea “the medium is the message” has been around for more than half a century. But it’s never been adopted as a principle of constitutional law. Electronic communications, like street communications, arguanly have different characteristics from print communications, requiring a different legal regime.

[David Nieporent]

Hamburger has written extensively on many subjects. His writings on § 230 have convinced me that I cannot rely on his legal acumen when those other subjects arise, either.

[loki13]

I .... this might be one of the most breathtakingly stupid things I have read in some time, DMN. Not your comment (on point), but the Hamburger article. I thought to myself, "Who would be stupid enough to link to this? It has to be Blackman, right?"

GOOD GAWD. IS THAT JIM LINDGREN'S MUSIC?

Woah. He's back?

[Leo Marvin]

It would have to be special to coax Jim out of his VC hidey-hole.

[Stephen Lathrop]

Just curious, Loki, do you take as a premise that major social media platforms are not in fact publishers? Note that I am not asking what Section 230 says. I am asking what you think as a matter of fact, using whatever system of classification you think ought to apply. If you say they are not publishers, I would appreciate a bit of insight on how you reason that question.

[Tallman]

Personally, I'd argue the big social media companies aren't really "platforms" b/c they exercise too much editorial judgment over content.

[David Nieporent]

Personally, I'd respond to that argument by pointing out that "platform" is not a legal term in the first place. It's a marketing term, or something that people who went to Twitter Law School think is a real thing. You are free to say, "I don't consider them a platform" if you want, but that has no legal significance.

[ObviouslyNotSpam]

Nonsense. The definition of "platform" is precisely defined as a magical place where everything I want is provided for free, and nothing I don't like is allowed to contaminate it.

[Tom Dial]

I would want to argue that it should require more to be classified as a publisher (analogous to a newspaper or magazine publisher) than accepting submissions and distributing them by default while screening out (by algorithm) or pruning after distribution (based on after the fact review or receipt of complaints) those which the distributor finds fault with. But that seems to be what Youtube does, Youtube does not review submissions on an individual basis as publishers like the Times or Post do for news articles, editorials, op-ed opinion pieces, and most likely for advertisements as well. And that, according to my understanding, is what the 47USC230 (c)(1) and (C)(2)(A) allow explicitly.

Whether apparently content-neutral "recommendation" algorithms may violate other federal laws or be subject to civil litigation external to Section 230 is a different question. I think it is an extreme stretch, but look forward to C-Span on Tuesday, assuming they will carry the Supreme Court session that will take up the issue.

[Bored Lawyer]

It's poorly written, but I think his argument (which is NOT the petitioner's argument) is as follows.
Section 230 states that an ISP cannot be treated as a "publisher" of third party material. Publisher is a legal term related to defamation.

But the cause of action asserted is for aiding and abetting terrorism, for which 18 U.S.C. § 2333 provides a civil remedy.
Subsection (d)(2) provides:

In an action under subsection (a) for an injury arising from an act of international terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189), as of the date on which such act of international terrorism was committed, planned, or authorized, liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.

Liability does not require a finding that anyone is or was a "publisher." What is required is a finding that the defendant knowingly provided substantial assistance to international terrorism.

What he seems to be saying is that the cause of action should control whether Section 230 applies. Which is not how courts have interpreted Section 230.

(FWIW, the petitioner in the Gonzales case is arguing that Google's recommendation of certain ISIS sites is Google's own speech, not that of ISIS.)

[Bored Lawyer]

Of course, this makes the plaintiff's burden even harder. They have to show that Google knowingly allowed ISIS videos on the site, not just that one or a few slipped through. And there is a serious causation issue. The whole suit seems flimsy, even apart from Section 230.

[Jason Cavanaugh]

"Section 230 is especially unconstitutional because it privileges electronic communication over print and in-person communication, thereby subjecting these older modes to discriminatory restraints."

Notably, a website and print media do not operate in the same way whatsoever.

[Stephen Lathrop]

Notably, a website and print media do not operate in the same way whatsoever.

Cavanaugh, remarkable then that web publishing competes with destructive efficiency against print media (and other conventional publishers), but leaves competitively undisturbed almost every other class of business. That means web publishing and conventional publishing must be closely similar in their business models.

Do they have other similarities? Why yes, they do!

– Both kinds of business activity disseminate either expressive content or information content.

– Both kinds put that content before the public, to choose or bypass at its pleasure.

– Both kinds attempt to use that content to attract an enduring audience.

– Both kinds confront the challenge to recruit and organize content offered by would-be contributors.

– Both kinds perform activities to curate that content with an eye to its effect on the demographics of the enduring audience they attempt to assemble.

– Both kinds monetize the audience thus assembled and curated, by selling to advertisers access to the attention of the enduring and curated audience.

– Both kinds thus perpetuate themselves in business by means organized in broadly similar ways.

– Both kinds at least purport to play a role as news gatherers and news disseminators.

– Both kinds risk committing defamation, and thus inflicting unlawful damage on third parties.

– Both kinds can be sued for libel by damaged third parties—libel being a class of legal offense which applies to the activity of publishing.

One might almost insist that with such an extensive list of on-point shared characteristics that both classes ought to be treated as operationally identical. Any notion is ridiculous that they, “do not operate in the same way whatsoever.”

[Jason Cavanaugh]

Did you consider that I was referring to the relevant difference between the two?

When a physical newspaper prints your Op-Ed, they have decided specifically, out of all of their submissions, to edit and publish *yours*.

Websites, in the context of the 'complaint' allow all 'submissions' to be published, and then retroactively go back through and moderate to remove things that should not be present.

Seriously, look at the comment section here. Do you think this is how the NYT physical paper functions? Are they constantly amending the delivered physical papers with each and every idea that a reader has on a story? No.

There is a reason that section 230 applies differently to websites versus print media. I'd have expected you to understand why.