Supreme Court Dodges Thorny Section 230 Issue

The Supreme Court today dodged a claim that Section 230 of the Communications Decency Act protected Google from liability for recommending terrorist videos on its YouTube platform. At the same time, the Court said that Twitter wasn't liable for terrorist content on its platform under a federal law that creates liability for aiding and abetting terrorism.

The two cases--Gonzalez v. Google and Twitter v. Taamneh--arose when victims of terrorist attacks sued the platforms for allowing ISIS to post videos, and thus recruit members for terrorist activities. The plaintiffs in both cases claimed that the platforms aided and abetted terrorist activities in violation of federal law. Google countered that Section 230 shielded it from liability. (Section 230 says that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information by another information content provider.")

The Court ruled in Taamneh that Twitter did not "aid and abet" terrorist activities under federal law simply by allowing ISIS material on its platform. Because the plaintiffs' claims in Gonzalez were similar, the Court didn't reach Google's Section 230 defense; instead, the Court remanded the case for determination of liability in the first place in light of Taamneh.

As a result, we don't have a ruling on Section 230's application to interactive online platforms. The issue in Gonzalez was whether FaceBook acted simply as a neutral platform for third-party posts (in which case Section 230 would provide protection) or instead whether it added its own value to third-party content through its search-engine algorithms, recommendations, and other features (in which case Section 230 might not provide protection).

Lower courts have generally granted broad immunity to websites under Section 230. The lower court in Gonzalez relied on a common "neutral tools" test, which says that a website's algorithm that uses "neutral" sorting criteria for recommendations means that the website is simply publishing third-party content (and not transforming that content into its own communication), and thus gets Section 230 immunity.

The fact that the Court granted cert. in Gonzalez--on the Section 230 issue--suggested that it might have something significant to say. But at the same time, Taamneh always provided an off-ramp. In today's rulings, the Court took it.