Last week, the Reporters Committee and the Media Law Resource Center, represented by counsel at Debevoise & Plimpton LLP, filed a friend-of-the-court brief in Gonzalez v. Google, one of the U.S. Supreme Court’s blockbuster internet law cases this term. The case could have major implications for journalists.
As we have talked about before, the question Gonzalez presents is actually quite narrow: Does 47 U.S.C. 230, the now-famous liability shield for websites hosting third-party content, extend to recommendations? According to the U.S. Court of Appeals for the Ninth Circuit, the lower court here, the answer is yes. In the context of this case, that means Google cannot be held liable for aiding and abetting terrorism because it recommended ISIS propaganda to users. (To be clear, YouTube, owned by Google, does remove terrorist content.)
The case is the first time the Supreme Court has agreed to look at Section 230. (Twitter v. Taamneh, a companion case also before the Court, addresses whether hosting terrorist content could constitute aiding and abetting under federal civil law; we joined a friend-of-the-court brief there, too.)
Petitioners in the case argue for a distinction between recommendations and traditional editorial functions, like the decision to host or remove an online post. Section 230 protects the latter but not the former, they posit. But, as our friend-of-court brief points out, this distinction has no limiting principle. If the Court adopts it, online platforms will err on the side of caution. They might require pre-screening of posts on topics that platforms perceive could be controversial or ban posts on those topics altogether.
This would transform the internet as we know it. And it would make newsgathering harder for journalists, who rely on real-time access to social media posts when covering breaking news stories. A pre-screening requirement or aggressive takedown regime would also impair democratic dialogue and public accountability that the internet, at its best, can offer. According to journalists and experts, the much-maligned comments section on traditional news sites functions as a vital check on accuracy and enables journalists to be in conversation with their audience. But this modern letter-to-the-editor feature of many news sites could be imperiled by Petitioners’ proposed distinction, were it adopted.
We, for one, hope the comments section will live to see another day. Stay tuned for updates.
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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology Press Freedom Project Fellow Emily Hockett.