Bad Lawyering Does Not Mean Google Is Right About Section 230 | Opinion

Last week, the Supreme Court heard oral arguments for Gonzalez v. Google. This case concerns the families of victims involved in terrorist attacks committed by ISIS. The families attempted to sue Google under the Anti-Terrorism Act (ATA), asserting that YouTube's promotional algorithm helped ISIS radicalize and recruit members to commit heinous acts all over the world. However, the Ninth Circuit in this case held that Section 230 of the Communications Decency Act provides YouTube immunity from ATA enforcement, and thus prevented the court from hearing the case on its merits.

Put simply, the Ninth Circuit broadened so-called Section 230 immunity to prevent parties from even bringing a claim under the ATA. The Supreme Court took up the case to assess whether Section 230 can do that. It has nothing to do with whether Google is liable under the ATA, or any other underlying substantive claim at issue.

Gonzalez v. Google is solely about the scope of Section 230's immunity shield and the claims it protects tech companies from. Period.

Given the framing presented in Gonzalez's brief, most expected to hear oral arguments discussing how the Ninth Circuit's holding is not supported by the text of the statute. The exact phrasing of Gonzalez's question as presented is "under what circumstances does the defense created by section 230(c)(1) apply to recommendations of third-party content?"

In other words, is YouTube acting like a publisher when it uses promotional algorithms? And, if so, are violations under the ATA a form of publisher liability? Notice there is nothing in this question related to whether Google is actually liable under the ATA or even whether the Court should consider the underlying ATA claim.

Which is why Eric Schnapper's—the Gonzalez family's attorney—oral argument was so strange. In contrast with the brief he submitted, there was virtually no discussion of what the text of the statute intends to cover. Instead, Schnapper only muddled the distinction between when YouTube is acting as a publisher and as a distributor of content. Even worse, he focused a significant part of his case on a contorted, disjointed argument about how Google may be violating the ATA, which, again, is not at issue here.

Google campus building
MOUNTAIN VIEW, CALIFORNIA - JANUARY 31: A sign is posted in front of a building on the Google campus on January 31, 2022 in Mountain View, California. Google parent company Alphabet will report fourth quarter earnings on Tuesday after the closing bell. Justin Sullivan

This strategy led to an enormous amount of unnecessary confusion for the Court. Notably, Justice Samuel Alito stated to Schnapper that he was "completely confused by whatever argument you're was making." Justice Ketanji Brown Jackson shared a similar sentiment, saying she was "thoroughly confused" by Schnapper's presentation.

Schnapper's attempts at clarification only made his case more opaque. At one point, Justice Alito asked Schnapper, "if someone goes on YouTube and puts in 'ISIS videos' and they show thumbnails of ISIS videos, and don't tell me anything about the substantive underlying tort it acting as a publisher simply by displaying these thumbnails of ISIS videos after a search for ISIS videos?" Confusingly, Schnapper begins his response with "It is acting as a publisher." This undercut the entire argument in his brief, which asserts that Google would most likely be a distributor in that case, not a publisher. This distinction is critical to his case. Justice Clarence Thomas asserted quite publicly in Malwarebytes v. Enigma Software Group, USA that Section 230 does not protect Big Tech companies, like Google, when it acts as a distributor.

In short, Schnapper had a bad day in Court, but that doesn't mean he has a bad case. His brief is correct to call into question Big Tech's use of Section 230 as a shield for liability from other civil actions, such as most torts, breach of contract claims, and those brought under unrelated civil statutes like the ATA.

The fact is that the text of Section 230 is on Gonzalez's side here. The part of Section 230 the Court is currently considering says that "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." There is no text in the statute supporting the sweeping immunity lower courts have provided tech companies. Indeed, the word "immunity" is not even in the statute. What's more, it's not clear from the statute that using promotional algorithms is a publisher activity at all.

To reiterate, this case is not about whether Google is liable for showing ISIS videos. This case is about whether the statute bars the ATA claims outright. In other words, does the Gonzalez family get their day in court for a judge to assess their ATA claims? Or does Section 230 deny them and so many other families that opportunity? It's that simple.

Joel Thayer is president of the Digital Progress Institute and an attorney based in Washington, D.C. The Digital Progress Institute is a nonprofit seeking to bridge the policy divide between telecom and tech through bipartisan consensus.

The views expressed in this article are the writer's own.