Arguments will be heard in the Supreme Court on Tuesday Gonzales v. Google, A Questions have been raised about whether Section 230 protects Big Tech from federal laws against aiding and abetting terrorism—and perhaps even state laws against tech censorship.
Philip Hamburger has an important analysis of the Federalist case: “How a Terrorist Victim Can Help the Supreme Court Address Section 230.”
In 2015, Nohemy Gonzalez, a 23-year-old American studying in Paris, was shot and killed by Islamic State (ISIS) terrorists while dining at La Belle Equipe Bistro. The US Supreme Court will consider this alarming information Gonzales v. Google 21 February. The fate of Article 230 is tied to Nohemi’s fate.
That 1996 federal statute excuses the law that limits Big Tech privileges, newspapers and other old-style communications. But does that absolve Big Tech from complying with all laws affecting communications? For example, who is against aiding terrorism?
Nohemi’s relatives and estate sued YouTube owner Google for allegedly encouraging ISIS followers to algorithmically watch ISIS videos, in violation of laws against aid to terrorism. Google responds that Section 230 gives it broad immunity. It claims to be privileged for many abuses, including aiding terrorism and censoring Americans.
Big Tech thus takes a big interpretation of Section 230 However, statutes and constitutions suggest that Big Tech has overplayed its hand
Statutory problem text. According to Google and the rest of Big Tech, YouTube enjoys protection as a “publisher” under Section 230(c)(1) for its “editorial functions,” sharing and recommending videos or blocking them. But that is not what the clause says.
It states that such organizations shall not be “deemed to be publishers” of information provided to others. So Google, ironically, is seeking to be considered a publisher under a category that says it shouldn’t be considered a publisher. Its logic proves too much.
Context ensures the narrowness of the text. The department was responding to such cases Stratton Oakmont vs. Prodigy, a defamation case in which Prodigy was treated as “a publisher rather than a distributor”. A key element of a defamation case is showing that the defendant is the libeler. Section 230(c)(1) protects against such lawsuits by saying that companies should not be “regarded as disclosing” information provided by others.
This leads to the sensible conclusion that YouTube and Google will find no recourse under Article 230 for supporting terrorism. Being a publisher is not an element of a case for aiding and abetting terrorism, so section 230(c)(1) gives them no cover.
The piece explains that “if the Supreme Court accepts Big Tech’s major rewrite, the decision Gonzales v. Google Both terrorism and censorship can benefit Big Tech.” Hamburger argues that this invalidates Section 230 and that the law is unconstitutional:
Section 230 is particularly unconstitutional because it privileges electronic communications over print and personal communications, thereby subjecting these older methods to discriminatory restrictions. This is speaker discrimination, which the Supreme Court has rightly called unconstitutional Citizens United v. FCC.
Speaker discrimination, moreover, comes with perspective discrimination. Newspapers tend to have a more local or regional perspective than big tech companies. Thus, by privileging electronic carriers, Section 230 favors their relatively national and international perspectives and disadvantages local perspectives of more traditional modes of communication.
Hamburger’s concerns are both terrorism and censorship:
Its distorted beauty Gonzales v. Google, From a Big Tech perspective, Big Tech could secure Supreme Court support for a big interpretation in a case that doesn’t involve censorship. Terrorism can be a back door for censorship to go unnoticed.
Nohemi’s murder was completely unjustified. So is the larger interpretation of Article 230. This is contrary to the text of the statute. It deviates from the underlying concern of the adoption of the law. It leverages big technology to aid terrorism and impose censorship. And the law is unconstitutional.