Amici: SCOTUS Ruling Against Google Could Chill Online Speech
A Supreme Court ruling in Gonzalez v. Google that an internet platform can be liable for the content it recommends (see 2301130028) would increase the cost and prevalence of content moderation, chill speech, step on congressional authority and ignore other routes for curbing abuses by tech companies, said amicus briefs supporting Google (docket 21-1333) this week . Public Knowledge, the Washington Legal Foundation, the Center for Democracy and Technology and others weighed in on the case.
Some opponents of Section 230 of the Communications Decency Act want to limit it to curtail hate speech, while others believe it should be relaxed to combat censorship, said TechFreedom’s amicus filing: “That so many believe so strongly that curtailing Section 230 will serve utterly disparate ends should give any serious person pause.”
YouTube’s algorithm recommending ISIS videos or pushing notifications and URLs of those videos aren’t distinct from the acts of publishing protected by Section 230, said PK and CDT. “That a publication is to a single individual, uses an algorithm, or is targeted to specific users based on a trove of personalized information does not transform it into something other than a publication,” said PK. Arguments that distinguish between display and recommendation of content “are technologically arbitrary and unworkable,” said CDT in its joint amicus filing with six technologists. “For online service providers that receive, sort, and display millions of uploads in a single day, there is no clear line between the two,” said CDT CEO Alexandra Reeve Givens in a news release.
Arguments that URLs and notifications are “information” provided by YouTube and therefore aren’t produced by third parties are immaterial, PK said. “Even if they are, they contain no objectionable content in themselves. The objectionable content is the video, not the URL for the video,” said PK's amicus filing.
Section 230 provides “procedural advantages” that smooth the process of publishing content on the Internet and protect speech, said an amicus filing from Eric Goldman, Santa Clara University School of Law associate dean-research. The law does that by assuring the website owners that their decisions on content are legally protected under a single national standard and facilitating quick dismissal of legal challenges that aren’t allowed under Section 230. Carving out recommendations from those protections would drive publishers either to more censorious moderation to avoid litigation or toward no moderation at all, said TechFreedom. “It is hard to overstate how risk-averse platforms lacking Section 230 protection would have reason to be,” said TechFreedom The additional legal defense costs “will change how online publishers make their editorial decisions,” said Goldman.
Arguments that Section 230 is overriding state authority or protecting tech companies against rightful claims against them such as privacy violations are false, said several amicus filings. “The Founding Fathers designed the Constitution so that Congress can regulate interstate and international commerce,” said the Washington Legal Foundation. “Allowing federal preemption of state-law claims fits with these principles of vertical federalism.” “There are multiple avenues for policymakers to address concerns over providers’ data collection, concentration of power, and potential unfair or deceptive practices” said CDT, pointing to data protection and competition laws, and the FTC. “Section 230 is not a deregulatory charter for the online businesses that have become so central to culture, democracy, and the economy,” said PK.