Social media firms score Supreme Court win in case that could have changed the web

Internet platforms notched a major Supreme Court victory Thursday when the high court's justices unanimously decided a case that could have rewritten the rules of the web. The court also sent a parallel case back to a lower court.

Both cases had to do with whether social media companies could be held liable for hosting and promoting terrorist content on their platforms. In deciding they could not, the court left a 27-year old law intact.

The cases, Twitter v. Taameneh and Gonzalez v. Google, effectively challenged Section 230 of the Communications Decency Act, a law that broadly insulates social media platforms, including major platforms like Google's (GOOG) (GOOGL) YouTube, Facebook and Instagram (META), and Twitter, from legal liability when they provide content posted by their users. The plaintiffs argued that they should be able to sue the companies for aiding and abetting terrorism under the Anti-terrorism Act

"Defendants’ mere creation of their media platforms is no more culpable than the creation of email, cell phones, or the internet generally," the court stated in its opinion in the Taameneh case. In characterizing the company's algorithms as "agnostic" to the nature of hosted content, the justices reasoned that they could not impose liability on YouTube for knowingly aiding and abetting terrorism.

WASHINGTON, DC - FEBRUARY 21: (L-R) Jose Hernandez and Beatriz Gonzalez, stepfather and mother of Nohemi Gonzalez, who died in a terrorist attack in Paris in 2015, arrive to speak to the press outside of the U.S. Supreme Court following oral arguments in Gonzalez v. Google February 21, 2023 in Washington, DC. Oral arguments took place today in Gonzalez v. Google, a landmark case about whether technology companies should be liable for harmful content their algorithms promote. (Photo by Drew Angerer/Getty Images) (Drew Angerer via Getty Images)

Separately, in the Gonzalez opinion, the court sidestepped questions concerning YouTube's Section 230 liability by sending the case back to the Ninth Circuit Court of Appeals. The court instructed the lower court to review the case in light of the Taameneh ruling. The court, however, noted its opinion that the plaintiffs' claims alleging that YouTube aided and abetted terrorism would likely fail.

Anna Diakun, an attorney for the Knight First Amendment Institute at Columbia University, said, "The Court correctly recognized in Taamneh that the [social media] platforms' alleged conduct was too attenuated and passive to rise to the level of aiding and abetting."

Although the attack that prompted the suit was terrible and tragic, Diakun said, imposing liability on the platforms in these circumstances would have had far-reaching implications for free speech online. Still, Diakun said she expects the court will eventually be pressed to answer important questions that it avoided in today’s opinions.

"Questions about the scope of platforms’ immunity under Section 230 are consequential and will certainly come up soon in other cases," she said.

Ben Berkowitz, a partner with Keker, Van Nest & Peters, who assisted in an amicus brief for Authors Alliance in support of Google, said third-party content hosts are breathing a sigh of relief.

“Critics of Section 230, as well as Justice Thomas in dissents and concurrences, had said [the court] should look at Section 230 in the appropriate case,” Berkowitz said. “Given those concerns I think today’s decision is very positive.”

The claims in the two cases arose from separate ISIS terrorist attacks and were brought by victims of the attacks.

In Gonzalez, family members and the estate of Nohemi Gonzalez, a 23-year-old US citizen killed in a December 2015 ISIS shooting at La Belle Equipe bistro in Paris, argued that Google should be held at least partially liable for her death. They alleged the company's YouTube service knowingly permitted and recommended, via algorithms, inflammatory ISIS-created videos that allegedly played a key role in recruiting the attackers.

In their arguments, plaintiffs claimed that YouTube's act of creating thumbnails — images that appear in internet search results as representations of available third-party content — converted the company from a passive host of third-party content into a recommender of content, more akin to publishers or speakers that are not covered by Section 230's liability shield.

In the Taamneh case, the plaintiffs argued that Facebook, Twitter, and Google should be held liable for injuries allegedly caused by similar content that they describe as material aid to ISIS terrorists. In a claim specifically against Google, the plaintiffs said Google knew they aided the terrorist attacks because the company shares revenue earned through videos provided by third party content creators.

Before the Supreme Court took up the Gonzalez case, the U.S. District Court for the Northern District of California dismissed the lawsuit at Google's request, concluding that Section 230 barred the claims because ISIS, not Google, created the videos.

The Taamneh case was previously decided by the Ninth Circuit Court of Appeals, which held that the plaintiffs put forth an adequate claim for aiding and abetting terrorism under the Anti-terroristm Act.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

Daniel Howley is the tech editor at Yahoo Finance. Follow him @DanielHowley

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