We were pleased earlier this year to join the Center for Growth and Opportunity and a strong coalition of small non-profit organizations signing an Amicus Brief to the Supreme Court asserting that algorithms play an essential role in sorting content for platform users. If the Court issues an adverse ruling, the future capacity of any organization or individual to reach new audiences would be at stake.
- The Center for Growth and Opportunity at Utah State University’s analysis is below.
- You can read the amicus curiae in full here.
- You can read a news report of the Supreme Court’s decision here.
We agree with the Center for Growth and Opportunity. Leaving Section 230 to be decided another day is the right decision. This was a good decision for the Internet. The Supreme Court could have used this as an opportunity to erode Section 230’s protections for Internet platforms, yet chose not to. This reflects the reality that we reflected in our Amicus Brief: that algorithms play an essential role in sorting content for platform users.
The Supreme Court granted cert to two cases that will determine the future of free expression on the internet: Gonzalez v. Google and Twitter vs. Taamaneh. The Center for Growth and Opportunity (CGO), joined by a group of state-based think tanks, filed an amicus brief in Gonzalez v. Google.
What is Gonzalez v. Google about?
The question at hand
Does 47 U.S.C. § 230(c)(l) immunize interactive computer services when they make targeted recommendations of information provided by another information content provider?
Details of the case
ISIS killed Nohemi Gonzalez in the November 2015 Paris attacks. There is no direct link between YouTube and Gonzalez’s death, no evidence that YouTube was used to plan the attacks or recruit the attackers. Nonetheless, Gonzalez’s family sued YouTube’s owner, Google, claiming that YouTube had hosted ISIS recruitment videos around the time of the attacks. The trial court applied Section 230 and dismissed the suit.
The US Court of Appeals for the Ninth Circuit affirmed the lower court’s decision. Now the case is headed to the Supreme Court. The plaintiffs contend that their lawsuit is not about the terrorist videos themselves, but about YouTube recommending those videos to users. This case is unusual in that there was no circuit split for the Court to resolve, and it presents the Court with an opportunity to directly decide the extent of Section 230’s protections for internet platforms.
What is at stake in this case?
A robust marketplace of ideas and a driver of American economic growth and innovation are at risk if the Court finds against Google. In such a world, internet platforms will likely remove content that anyoneasserts is defamatory or dangerous. This would, in all likelihood, most negatively impact those with culturally or politically heterodox opinions, many of whom are followed by hundreds of thousands of Americans. While no one defends ISIS recruitment videos on the internet, there may come a time when a party in power declares certain political or religious views as extremist or dangerous. If the Court rules in favor of Gonzalez, then many platforms will not bear the risk of hosting or allowing this content to rise to the top of newsfeeds or searches (essentially shadow banning it).
For those who have circumvented traditional media gatekeepers like Ben Shaprio, Dan Bongino, Joe Rogan, Bari Weiss, and Jordan Peterson, this poses a risk of shutting down their distribution channels on social media platforms or SEO ranking. The voices of small non-profit organizations like those who have signed on to this brief or who are representing marginalized groups but don’t have big media budgets would also be at risk. If the Court issues an adverse ruling, the future capacity of any organization or individual to reach new audiences would be at stake.
What arguments does this amicus brief make?
The brief focuses on the text of Section 230 and how Section 230 enables a robust marketplace of ideas:
- According to Section 230, platforms are not publishers: Targeted recommendations, the core issue in this case, were anticipated by the authors of Section 230. Targeted recommendations are clearly discussed and covered within the text. Such systems are what the statute defines as “enabling tools,” which are used by “access software providers” to “pick” and “choose,” “organize” and “reorganize,” and “forward” “content.” In other words, targeted recommendations. Therefore, based on the text itself, platforms are not liable as publishers.
- Section 230 makes the internet a vital economic engine: The only dynamic, growing part of our national economy in recent years has emanated from the internet. This was Congress’s intent when Section 230 was written and passed into law. By gutting Section 230, the internet will cease to be the bright spot of the American economy of the past 30 years.
- Section 230 protects free speech: Section 230 has enabled the internet to be an unprecedented place for freedom of expression to thrive, especially for conservatives. Despite high-profile instances of platforms squelching speech, Section 230, as written, is a boon for those with perspectives outside the mainstream.
- Section 230 allows new, small entrants into the market: Furthermore, Section 230 promotes competition. The contrast between the thriving US tech industry versus the European tech industry is a real-world example and proof point. Without Section 230’s protections, large incumbent internet platforms are the only firms who could possibly take on the liability of seemingly dangerous speech. Startups would not be able to shoulder the legal and content moderation compliance costs to enter the market. The internet we know today is not the internet of five years ago and, thanks to Section 230, won’t be the internet of five years into the future.