Supreme Court sides with Google on terror-related content

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The U.S. Supreme Court ruled that YouTube did not aid and abet foreign terrorist groups by recommending videos by the Islamic State group (ISIS) via its algorithms. The federal lawsuit, Gonzalez v. Google, was filed by the family of a 23-year-old college student who was killed in a Paris shooting in 2015 by members of the Islamic State group.

Key Players

Google, a multinational technology company, owns and operates YouTube, an online global video and social media platform that uses computer algorithms to promote content.

Nohemi Gonzalez attended California State University, Long Beach. She was studying abroad in France, when she was killed during a Paris terrorist attack on Nov. 13, 2015. Her family alleged in a lawsuit that Google violated the Antiterrorism Act, a federal law that gives Americans the right to claim damages for harms incurred “by reason of an act of international terrorism.” 

Further Details

The court was tasked with determining the breadth of Section 230 of the Communications Decency Act (CDA) of 1996, which protects publishers, including social media companies, from liability for the consequences of third-party, user-generated content. 

The CDA had been enacted to prevent minors from viewing sexually explicit content online. It prohibits individuals from knowingly transmitting obscene or explicit material to those under 18 years old and prohibits using social media anonymously to “annoy, abuse, threaten, or harass any person.” However, as noted by Chief Justice John Roberts, Section 230 has been used to protect online platforms from lawsuits related to “discrimination, defamation and infliction of emotional distress.”

On Nov. 13, 2015, Gonzalez was sitting outside a cafe in Paris when an Islamic State group-affiliated terrorist killed her and 129 others in a shooting. 

Gonzalez’s family filed a federal lawsuit on June 14, 2016, asserting that Google’s algorithm promoted content that ​​“aided and abetted an act of international terrorism” by promoting and failing to remove terrorist recruitment videos on YouTube. It also alleged that YouTube had “become an essential and integral part of ISIS’s program of terrorism” by providing “a unique and powerful tool of communication that enables ISIS to achieve [its] goals.”

In October 2017, Google moved to dismiss the suit, contending that Section 230 protected it from being held liable for third-party content posted on its platform. Judge Donna M. Ryu, a federal magistrate judge in U.S. District Court for the Northern District of California, dismissed the case, agreeing that Section 230 shielded Google. Ryu dismissed three amended complaints filed by the Gonzalez family. The family appealed the lower court’s decision in April 2019.   

On June 22, 2021, a divided panel of the 9th U.S. Circuit Court of Appeals ruled that many of the Gonzalez family’s claims were barred by Section 230. It also affirmed that Google did not materially contribute to Islamic State group recruitment by promoting its content through its algorithm, as “the algorithms did not treat ISIS-created content differently than any other third-party created content, and thus were entitled to § 230 immunity.”

The majority concluded, though, that Congress, not the courts, should clarify the breadth of Section 230. 

Gonzalez’s family asked the Supreme Court to hear the case, and the court agreed to do so. On Feb. 21, 2023, the court heard oral arguments. 

Eric Schnapper, representing the Gonzalez family, focused on YouTube thumbnail images that suggest videos to users, arguing that the thumbnail was a joint creation between YouTube and the third party that posted the video, because YouTube helps create the URL link to access the video. But many of the justices seemed to doubt that claim.

The justices also pressed Schnapper about the future of web-related lawsuits if Section 230 were overturned. 

Schnapper attempted to quell those concerns by saying that the implications of the decision would be limited to the specific circumstances of the Gonzalez family. But that didn’t convince Justice Elena Kagan. 

“You are creating a world of lawsuits,” Kagan said. “Really, anytime you have content, you also have these presentational and prioritization choices that can be subject to suit.”

Roberts pointed out the possibility of a rise in defamation lawsuits, saying, “People have focused on the [Antiterrorism Act], because that’s the one point that’s at issue here. But I suspect there will be many, many times more defamation suits.”

The justices also questioned Google’s lawyer, Lisa Blatt, about how companies would be affected by the reversal of Section 230. “Would Google collapse and the Internet be destroyed if YouTube and therefore Google were liable for posting and refusing to take down videos that it knows are defamatory and false?” Justice Samuel Alito asked. 

Blatt acknowledged that Google could sustain potential lawsuits, but said that smaller internet companies would suffer financially.

Some justices suggested that the question would be better left for Congress. “We’re a court. We really don’t know about these things. These are not, like, the nine greatest experts on the internet,” Kagan said. 

Outcome

Supreme Court rules in favor of Google

On May 18, 2023, the court ruled unanimously that there was no evidence Google aided terrorism, saying in an unsigned opinion that it would not address the application of Section 230 and would instead remand the case back to the 9th Circuit in light of another decision it issued on the same day.

That decision, in Twitter v. Taamneh, dealt with the 2017 terrorist attack at the Reina nightclub in Istanbul, Turkey, allegedly committed on behalf of the Islamic State group. The family of Nawras Alassaf, a Jordanian citizen killed in the attack, similarly based its complaint on the Antiterrorism Act. Both the district and appellate courts ruled in favor of the Alassaf family, leading Twitter to appeal to the Supreme Court, which unanimously ruled that the family could not sue Twitter and other social media companies for damages.

“[P]laintiffs have failed to allege that defendants intentionally provided any substantial aid to the Reina attack or otherwise consciously participated in the Reina attack — much less that defendants so pervasively and systemically assisted ISIS as to render them liable for every ISIS attack,” Justice Clarence Thomas wrote. 

“As presented here, the algorithms appear agnostic as to the nature of the content, matching any content (including ISIS’ content) with any user who is more likely to view that content,” Thomas wrote. “The fact that these algorithms matched some ISIS content with some users thus does not convert defendants’ passive assistance into active abetting.” 

In Gonzalez, the court determined that in light of its decision in Taamneh, “little if any” of the plaintiffs’ case remained viable.

Free Speech groups praise decision

Many Free Speech organizations and advocates praised the court’s decision.

“Twitter and other apps are home to an immense amount of protected speech, and it would be devastating if those platforms resorted to censorship to avoid a deluge of lawsuits over their users’ posts,” Patrick Toomey, deputy director of the American Civil Liberties Union National Security Project, stated. “Today’s decisions should be commended for recognizing that the rules we apply to the internet should foster free expression, not suppress it.”

Google and other tech companies also celebrated the decision. “We’ll continue our work to safeguard free expression online, combat harmful content, and support businesses and creators who benefit from the internet,” Google general counsel Halimah DeLaine Prado said.

“The battle will now pass to the Congress … which can no longer hide on the sidelines,” Nitsana Darshan-Leitner, a lawyer for the Gonzalez family, said.

Congress has wrestled with Section 230 for years, but members have been unable to agree on how to update the 25-year-old law. A number of bills have been introduced, including one in early 2023 by a bipartisan group of lawmakers that would make significant reforms. The proposed legislation would allow social media and other internet companies to be held accountable for enabling online harassment and intimidation, and it would remove their protection against wrongful death lawsuits like the one filed by the Gonzalez lawsuit. 

That bill is awaiting action in a Senate committee. As of Jan. 10, 2024, there were no further updates.