This morning, the Supreme Court granted certiorari in Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021) on the following question presented: “Does section 230(c)(1) immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?” This is the first opportunity the Court has taken to interpret 47 U.S.C. § 230 (“Section 230”) since the law was enacted in 1996.
In Gonzalez, the estate of Nohemi Gonzalez, a victim of the November 2015 terrorist attacks in Paris, sought to hold Google liable under the Anti-Terrorism Act for recommending videos through its YouTube algorithms that were posted by the terrorist group ISIS. A court in the Northern District of California found that Section 230(c)(1) protected Google against the claims, and the U.S. Court of Appeals for the Ninth Circuit affirmed.
While the Supreme Court has not analyzed the scope of Section 230 to date, in recent years, Justice Thomas has signaled an interest in the issue. Notably, in Malwarebytes, Inc. v. Enigma Software Group, LLC, 592 U.S. ___ (2020) Justice Thomas wrote a dissent from denial of certiorari “to explain why, in an appropriate case, [the Court] should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.”
The Supreme Court may soon consider another case involving online services, as well. In September, the Florida Attorney General asked the Court to review the Eleventh Circuit’s ruling in NetChoice, L.L.C., v. Moody et al., 34 F.4th 1196 (11th Cir. 2022) that a Florida law prohibiting online services from moderating content by political candidates or “journalistic enterprises” violates the First Amendment. The Fifth Circuit recently concluded in NetChoice L.L.C. v. Paxton, 2022 WL 4285917 (5th Cir. Sept. 16, 2022) that a similar Texas law restricting online “censorship” does not violate the First Amendment,and, last week, NetChoice filed a motion in the Fifth Circuit to block enforcement of the law while it files a petition for the Supreme Court to review the Fifth Circuit’s decision (see our post on the case here). The circuit split between Moody and NetChoice increases the likelihood that the Supreme Court will agree to hear one, or both, of the cases. Several Justices have expressed interest in the application of the First Amendment to online platforms. In May, NetChoice filed an application to vacate the Fifth Circuit’s stay of the District Court’s preliminary injunction blocking the Texas law in NetChoice, and although the Court denied the application, Justices Alito, Thomas, and Gorsuch filed a dissent stating that these issues “will plainly merit this Court’s review.” NetChoice, L.L.C. v. Paxton, 596 U.S. ___ (2022).
We will continue to monitor the proceeding of Gonzalez and will keep you updated here on Inside Privacy.