Justice Thomas gets his wish to revisit the scope of Section 230 immunity

by Elad Hakim

Photo: Alamy

The United States Supreme Court will hear arguments in the case of Gonzalez v. Google LLC that could dramatically impact the protection afforded to social media companies pursuant to Section 230, part of the 1996 Communications Decency Act.

Nohemi Gonzalez, a 23-year-old U.S. citizen studying in Paris, France, was killed in an ISIS terrorist attack in Paris in 2015. As reported by Politico, “the family sued Google — the owner of YouTube — for allegedly assisting ISIS by hosting ISIS recruitment videos on YouTube” and for allegedly “recommending ISIS video to users.” The recommendation process was allegedly handled by an algorithm.

Section 230 typically serves to shield companies like Google, Twitter, and Facebook from liability stemming from information published by others. For the most part, courts have held that such companies (i.e., internet platforms) are not deemed to be “publishers,” and are thereby immune from liability if a claim stems from the publication of information created by a third party. In Gonzalez, however, the question is somewhat different and revolves around whether federal law protects such platforms when their algorithms target users and recommend content.

The Supreme Court has turned down previous requests to consider the extent of the protection afforded by Section 230. For example, in Jane Doe v. Facebook, the court declined to grant certiorari based primarily on procedural technicality. While Justice Thomas agreed with the court’s decision on procedural grounds, he emphasized the need to re-evaluate the protections and immunity afforded under Section 230.

In the Jane Doe case, an adult male sexual predator used Facebook to lure 15-year-old Jane Doe to a meeting. Shortly after, Doe was repeatedly raped, beaten, and trafficked for sex. The girl eventually escaped and sued Facebook in Texas state court on the grounds that Facebook allegedly violated Texas’s anti-sex trafficking statute and committed other common-law offenses. After Facebook sought a writ of mandamus, the Texas Supreme Court allowed Doe’s sex-trafficking claim to proceed but dismissed her common-law claims pursuant to Section 230.

At the time, Justice Clarence Thomas issued a statement on the Supreme Court’s denial of certiorari in Jane Doe. In it, Thomas called for the court to “address the proper scope of immunity under §230 in an appropriate case.” Thomas pointed to the Jane Doe case to clarify his concerns.

In his statement, Thomas noted:

Here, the Texas Supreme Court afforded publisher immunity even though Facebook allegedly “knows its system facilitates human traffickers in identifying and cultivating victims,” but has nonetheless “failed to take any reasonable steps to mitigate the use of Facebook by human traffickers” because doing so would cost the company users—and the advertising revenue those users generate. Fourth Amended Pet. in No. 2018–69816 (Dist. Ct., Harris Cty., Tex., Feb. 10, 2020), pp. 20, 22, 23; see also Reply Brief 3, n. 1, 4, n. 2 (listing recent disclosures and investigations supporting these allegations). It is hard to see why the protection §230(c)(1) grants publishers against being held strictly liable for third parties’ content should protect Facebook from liability for its own “acts and omissions.”

While Thomas recognized that Congress could, ultimately, step in and clearly define the scope of Section 230, he opined that the Supreme Court should do so in an appropriate case if Congress refused or failed to do so.

Gonzalez’s case could very well be that case.  

Mr. Hakim is an attorney and columnist. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Thinker, and other online publications. He is also a regular guest on OANN’s Tipping Point, and has appeared on Newsmax, The Jenna Ellis Show, Steadfast and Loyal Podcast with Allen West, The Dave Weinbaum Show, and Real America’s Voice. The views expressed herein are the author’s own and do not constitute legal advice.

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