Supreme Court To Decide Whether YouTube Can Be Sued For Abetting Terrorism

It’s the first Monday in October so the Supreme Court is back in session. One of the first things it did is issue a list of various cases that it will decide in the coming term. It was already public knowledge that the Court will be deciding a number of important and controversial cases, including cases on affirmative action, environmental protection, and voting rights.

Today the Court announced that it will be taking another huge case, Gonzales v. Google. The plaintiffs in this case allege that YouTube “aided and abetted the November 2015 terrorist attack in Paris, France committed by ISIS”. They claim that ISIS used YouTube to recruit members and “communicate its desired messages.”

YouTube’s parent company, Google, argues that the suit is prohibited by Sec. 230 of the Communications Decency Act, which shields providers of “interactive computer service[s],” such as Google and YouTube, from claims that treat the provider “as the publisher or speaker of any information provided by another information content provider.”

In other words, if you believe that YouTube has shown harmful content, you have to sue the creator of that content, not YouTube. The company claims that “Every minute, YouTube users upload over 500 hours of new content” so one can hardly expect them to take responsibility for every uploaded video. They say they need the protection of Sec. 230 because, without it, they would have to censor every video that might possibly lead to liability.

Sec. 230 is in the cross hairs of both conservatives and liberals these days. The political left believes that there is too much right wing hate speech on the internet these days and would like to strip websites of their immunity for allowing access to hateful content. The political right believes that the websites are dominated by progressive Silicon Valley types who are too quick to kick conservatives off of their platforms.

It was something of a surprise that the Supreme Court took this case. Congress is actively considering a dozen or so bills that would amend Sec. 230. They range from the “Limiting Section 230 Immunity to Good Samaritans Act” to the “Civil Rights Modernization Act of 2021,” which would strip Sec. 230 protection for content that “flaunts bedrock civil rights protections,” to the “Abandoning Online Censorship Act”, which simply repeals it altogether. Usually when there is this much congressional activity about amending a law, the Court is inclined the let the dust settle before it weighs in.

Chances are that it is the Court’s conservatives who are responsible for the agreeing to hear the case. (Only four of the nine Justices have to vote to hear a case, and the public doesn’t get to know which four did so.) Clarence Thomas, the Court’s most conservative Justice, is on record as criticizing Sec. 230 for giving digital companies legal immunity without imposing “corresponding responsibilities”.

The plaintiffs in this case claim that they aren’t suing You Tube over the content as much as they are suing it over the company’s algorithms that recommend videos to users. The idea is that someone who shows some interest in terrorist recruitment videos will be shown more recruitment videos based on past viewing habits. YouTube counters that it invests substantial resources in “technology that identifies and removes terrorism-related videos and works to ‘identify content that may be being used to radicalize and recruit extremists’.”

Algorithms are at the heart of what companies like YouTube do, so if the Court rules that they can be sued over them that will be a big shake up in the industry. With Congress already looking at a variety of reforms, that would be a very aggressive move by the Court. On the other hand, looking at the Court’s decisions on abortion and gun rights last term, that might fit right in with this Court’s current approach.