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Social Media Immunity Considered by US Supreme Court

These days, big tech faces a number of concerns, including government oversight and job cuts. Yet this week, all eyes will be on the US Supreme Court as it hears two issues that could fundamentally alter how social media companies operate.

Gonzalez v. Google and Twitter v. Taamneh are two lawsuits that resulted from tragedies brought on by terrorist attacks. The relatives of the deceased are pleading with the justices to pierce the impenetrable shield of immunity from legal claims resulting from third-party content posted on social media platforms like Twitter, Facebook, and YouTube.

Despite having comparable circumstances, the two cases brought before the Supreme Court posed significantly different issues. Take each one individually.

Examined are algorithmic recommendations

The Nohemi Gonzalez estate and her kin filed a lawsuit against the social media juggernaut in the Google case, which will be heard on Tuesday. When terrorists struck a Paris café in November 2015, Nohemi was a student and a citizen of the United States. The IS terrorist organization took ownership.

The Antiterrorism Act of 1990 was allegedly broken by Google through YouTube, according to Nohemi’s family’s lawsuit. Due to “an act of international terrorism,” American citizens are allowed to file a lawsuit. Anyone who “knowingly provides substantial help” to someone who commits “an act of international terrorism” is subject to liability under this law.

In the case, it was alleged that Google had permitted IS to broadcast movies encouraging violence and member recruitment. Additionally, it said that an algorithm on YouTube identified viewers who could be interested in IS videos and recommended them to them.

By citing Section 230 of the Communications Decency Act of 1996, Google was successful in getting their lawsuit dismissed. Section 230 shields interactive websites like Facebook, YouTube, or Twitter from legal action resulting from third-party content on those sites, a provision that has come under heavy fire today from some members of Congress, Justice Clarence Thomas, and others.

The Ninth Circuit of the United States Court of Appeals upheld the trial court’s decision to reject the relatives’ claim. By requesting from the Supreme Court’s justices whether YouTube, which is controlled by Google, is immune from a lawsuit based on its algorithmic recommendations of third-party content to its users, they have focused their argument.

The Supreme Court will review Section 230 for the first time in the Gonzalez appeal; it was passed approximately 30 years ago to promote the expansion of the internet.

A matter of encouraging and supporting

In the second Twitter case before the top court, which will be discussed on Wednesday, Gonzalez’s family members will also be present. Gonzalez was slain in Paris, while separate IS terrorist acts in San Bernardino, California, and Istanbul claimed the lives of Nawras Alassaf, Sierra Clayborn, Tim Nguyen, and Nicholas Thalasinos.

The family also brought an Antiterrorism Act lawsuit against Google, Twitter, and Facebook. They asserted that such platforms “knowingly supplied substantial support” in violation of the statute and “aided and abetted” an act of international terrorism by hosting and endorsing IS content, notably its use as recruitment, fundraising, and communications.

Without using Section 230, the trial court dismissed the relatives’ claims. With one exception, the Ninth Circuit upheld the dismissals once more. According to the appeal court, the trial court should revisit the relatives of Nawras Alassaf’s accusation of aiding and abetting. Then, Twitter petitioned the Supreme Court to have that judgment reviewed, joined by the other two platforms.

Decisions could reshape social media

The immunity issues and how the justices decide them, whether under Section 230 or the Antiterrorism Act, could have sweeping implications for social media platforms — the content they post and the content they take down. Not surprisingly then, more than 70 “friend-of-the-court” briefs, mainly from the tech community supporting the platforms, have been filed in the high court. Reflecting the broad interests at stake, other briefs have been filed by states, religious groups, gun control organizations, business groups, former national security officials and members of Congress, among others.

The Biden administration has filed a brief in the Google case, arguing that Section 230 bars claims by Gonzalez’s relatives that YouTube failed to block or remove third-party content, but it doesn’t shield YouTube from any liability for its targeted recommendations of ISIS content to its users. In the Twitter case, the administration asked the justices to rule in favor of the social media platforms, noting that plaintiffs “allege that defendants knew that ISIS and its affiliates used defendants’ widely available social media platforms, in common with millions, if not billions, of other people around the world, and that defendants failed to actively monitor for and stop such use.” Those allegations, the administration argued, do not “plausibly” allege that Twitter “knowingly provided substantial assistance” to an international act of terrorism.

The two cases have many other aspects likely to engage and even bedevil the justices as they wade into this special arena for the first time. And it is not likely the last time that they will do so.

Perhaps even more controversial and significant are two cases awaiting the court’s decision on whether to hear them next term. NetChoice and the Computer and Communications Industry Association have challenged Florida and Texas state laws enacted in response to conservative complaints about censorship.

In NetChoice v. Paxton, the social media company and the association argue that the First Amendment has been violated by a Texas’ law barring social media platforms with at least 50 million active users from blocking, removing or demonetizing content based on the users’ views. They contend the law also would prevent them from removing harmful content. A federal appellate court ruled in favor of the state.

A different federal appellate court ruled in favor of NetChoice’s challenge to a similar Florida law. The state has turned to the Supreme Court with its appeal.

The judge writing the Florida opinion said: “The question at the core of this appeal is whether the Facebooks and Twitters of the world — indisputably ‘private actors’ with First Amendment rights — are engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms.”

The justices have asked the U.S. solicitor general for her views on whether to grant review to the cases. The split between the two appellate courts increases the chances that the justices will agree to take the cases.