SCOTUS Takes Case Examining Section 230 Protection for YouTube

The case focuses on the death of an American woman named Nohemi Gonzalez, who was at a bistro in Paris when ISIS militants initiated a series of deadly attacks. ISIS killed Gonzalez and 19 other diners at the bistro alone; militants in other Paris restaurants, bars, and entertainment venues claimed the lives of an additional 111 people and injured at least 350 that same night. Gonzalez’s family asserts that online ISIS recruitment efforts were integral to carrying out these attacks, and that many of these efforts took place on YouTube. According to them, Google “knowingly permitted ISIS to post on YouTube hundreds of radicalizing videos inciting violence and recruiting potential supporters to join the ISIS forces” prior to Gonzelez’s death. Worse, YouTube allegedly recommended these videos to users, thus providing “material support” to ISIS.

“Google selected the users to whom it would recommend ISIS videos based on what Google knew about each of the millions of YouTube viewers, targeting users whose characteristics indicated that they would be interested in ISIS videos,” reads the lawsuit, which was recently bumped to the Supreme Court from San Francisco’s 9th US Circuit Court of Appeals. Thanks to these recommendations, users were allegedly able to locate other ISIS videos and channels they otherwise would not have seen, “even if they did not know the correct identifier or if the original YouTube account had been replaced.”

Section 230 of the Communications Decency Act typically shields sites like YouTube from liability regarding third-party (in this case, individual channels’) content. Back when the Sheriff of Cook County, Illinois sued Craigslist for allowing users to post “erotic” or “adult” content (which the Sheriff alleged facilitated prostitution), Section 230 protected the site from legal liability. Section 230 similarly prevented AOL from being held liable for hosting a defamatory website criticizing Matt Drudge. That said, the Ninth Circuit said in June 2021 that the US ought to reconsider “whether social media companies should continue to enjoy broad immunity for the third-party content they publish.” This revived Gonzalez et al v. Google and a few other cases accusing Google, Twitter, and Facebook of aiding and abetting terrorist organizations.

The Supreme Court has historically declined Section 230 cases. But Justice Clarence Thomas criticized this stance earlier this year, echoing the Ninth Circuit’s sentiment regarding the reconsideration of social media immunity. Now the Supreme Court is taking on Gonzalez’s family’s case, as well as a similar case involving Twitter and an “act of international terrorism.”