Last week the Beacon Center joined with the Center for Growth and Opportunity, Americans for Prosperity Foundation, Freedom Foundation of Minnesota, Illinois Policy, Independence Institute, James Madison Institute, Libertas Institute, Mountain States Policy Center, Oklahoma Council of Public Affairs, Pelican Institute for Public Policy, and Rio Grande Foundation on an amicus brief urging the Supreme Court to protect the future of free expression on the internet when it decides Gonzalez v. Google.
The case asks whether 47 U.S.C. § 230 immunizes interactive computer services when they make targeted recommendations of information provided by another information content provider. The catalyst for this case is heart-breaking: the murder of Nohemi Gonzalez by Isis in the November 2015 Paris terror attacks. Ms. Gonzalez’ family sued YouTube’s parent company Google on the theory that YouTube had hosted Isis recruitment videos, despite no direct link between YouTube and her death, including recruitment of the terrorists involved and the planning of the actual attack. The trial court dismissed the suit finding that § 230 immunized Google from liability, and the Ninth Circuit Court of Appeals affirmed. The Supreme Court granted certiorari and will hear the case on February 21, with a decision expected by July 2023.
The Supreme Court will have to decide the extent of § 230’s protections for internet platforms, and from an interesting angle, because Petitioners contend their claim is not about terrorist videos themselves, but about the fact that YouTube’s algorithm recommended them to people. The brief Beacon joined argues that, per the text of § 230, platforms are not publishers, and therefore are not liable for content provided by third parties. It further asserts that through this protection from liability for content created by others, § 230 makes the internet a vital economic engine, allowing new, small entrants into the marketplace. And § 230 does all this while protecting free speech, particularly from conservative and heterodox speakers.
The videos at the center of this case are reprehensible. But the Court shouldn’t allow bad facts to make bad law. A decision adverse to Google would require the Court to deviate from fundamental First Amendment principles and a textualist approach to statutory interpretation. It could destroy the internet as both a robust marketplace of ideas and a driver of economic growth and innovation. If the Court finds Google is subject to liability for information provided by other content creators, most platforms could no longer afford to risk hosting any speech that anyone may deem defamatory or dangerous. Tech giants may be able to afford the costs of compliance, but they would also be incentivized to avoid platforming or recommending information outside the mainstream. Fewer opportunities to share and receive information leaves us all worse off. That’s why Beacon joined with others urging the Court not to issue a decision stifling innovation and entrepreneurship, insulating large market participants from upstart competition, and silencing dissenting views.