Ben Lennett is a tech policy researcher and writer focused on understanding the impact of social media and digital platforms on democracy.
Ahead of oral arguments in Gonzalez v. Google, LLC at the Supreme Court next week, I sent a short questionnaire to gather perspectives and legal opinions of different organizations that filed briefs with the Court. It asked organizations for their perspective on the Gonzalez case, and the arguments by the Petitioner and the U.S. government that urged the Court to narrow Section 230 protections. I also asked for opinions on the Zeran v. AOL decision that largely shaped the U.S. courts’ interpretation of Section 230’s immunity protections.
Below are responses provided by Paul Barrett, Deputy Director of the NYU Stern Center for Business and Human Rights. Read the Center’s full amicus brief here.
Why does this case matter to the organization you represent?
Gonzalez v. Google matters because the Supreme Court may use the case to clarify the degree of protection for free speech on the internet. For more than five years, the NYU Stern Center for Business and Human Rights has been researching the effects of the social media industry on democracy, and the future of online speech is central to that issue. While we have criticized social media companies for failing to self-regulate adequately, we have argued in our amicus brief that the Supreme Court should not use the Gonzalez case to create an exception to Section 230 that might undermine this speech-protective statute in its entirety.
What is your position generally on the merits of the Gonzalez case? Is Google liable if its algorithms recommend terrorist videos to users? Is it liable if it monetizes those same videos with ads?
Our view is that it is not feasible to carve out an exception to Section 230 for “recommendations” in the fashion that the petitioners advocate. There is an element of “recommendation” in nearly every way that social media platforms select, rank, and present content based on users’ past online behavior and preferences. In a sense, the main thing that platforms do is “recommend” content that their algorithms determine will be relevant to users, whether users are using a search engine, viewing ranked content in a feed, or considering whether to view a video in a “what’s next” feature. Therefore, if plaintiffs can sue platforms over “recommendations,” they can sue over virtually any platform action involving third-party content. Down that path lies the end of Section 230 and its speech-promoting role in shaping the modern internet.
Does Section 230 immunize Google and other social media companies from liability more generally when they recommend third-party content to users?
Section 230 immunizes Google and other social media companies from lawsuits concerning third-party content whether that content is recommended in a “what’s next” feature, or it is ranked in a newsfeed or timeline, or it appears on the users homepage, or it is provided in a series of ranked results to a search. In all of these instances, the suits are seeking to hold someone accountable for the third-party content; Section 230 says that, in the interest of promoting free speech on the internet, the platform in question cannot be held liable in this situation. The law is not perfect, and it has social costs. But on balance, it is worth preserving. Critics of Section 230 should seek subject area carve-outs via the legislative process, rather than judicially crafted alterations to the statutory text.
Do you agree with the Zeran v. AOL decision that strongly shaped how courts interpreted Section 230?
I agree with the interpretation of lower courts over the past 25 years when they have upheld a statute that Congress intended to be expansive, as indicated by the operative language is 230(c)(1) and 230(c)(2) — and in the explanatory language in 230(a) and (b). The latter two sections of the law are well worth considering when trying to determine Congressional intent.
If the Court relies on the arguments in your brief to make its decision, how will it impact social media and the internet more broadly?
Following our brief would result in a reaffirmation of Section 230 based on the existing text of the law. In our brief, we suggest that if the Supreme Court believes changes are needed, it ought to signal that belief to Congress and defer to the legislative process, which is the appropriate forum for adjusting statutory language.
Ben Lennett is a tech policy researcher and writer focused on understanding the impact of social media and digital platforms on democracy. He has worked in various research and advocacy roles for the past decade, including serving as Editor in Chief of Recoding.tech and as the policy director for the Open Technology Institute at the New America Foundation. He provides internet and telecommunications policy expertise and analysis to foundations, governments, and other institutions.