On October 3, 2022, the Supreme Court granted cert in Gonzalez v. Google, marking the first time that the Court will consider the scope of Section 230. As discussed previously on this blog, Section 230 has increasingly taken center stage in debates about censorship and content moderation. Yet, for the most part, courts have continued to interpret it expansively. The Court faces a delicate balancing act in considering the scope of immunity granted by Section 230.
The instant case arises from the 2015 terrorist attacks in Paris. Reynaldo Gonzalez’s daughter, Nohemi Gonzalez, was murdered in the terror attacks by ISIS terrorists. Her family members brought an action against Google, alleging that Google had aided and abetted ISIS by hosting their videos. Although simply hosting a video would normally be protected by Section 230, the plaintiffs additionally alleged that YouTube had affirmatively recommended ISIS videos, which helped ISIS recruit new terrorists. The district court, though, disagreed and dismissed the claim.
The district court’s decision was consistent with existing precedent. However, after the appeal had been briefed, Judge Katzmann in the Second Circuit wrote a dissent in Force v. Facebook, 934 F.3d 53 (2d Cir. 2019), arguing that recommendation of content should not be protected by Section 230. The Ninth Circuit subsequently ruled in Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093 (9th Cir. 2019) that recommending content does not remove Section 230 protection. The panel hearing the Gonzalez appeal therefore found itself in an unusual situation. Dyroff was Ninth Circuit precedent that governed the decision, which led the panel to uphold the dismissal. Two judges, though, were troubled by this outcome. One, Judge Berzon, concurred in the opinion but wrote separately to state that she would have held otherwise if not for Dyroff. The other, Judge Gould, dissented and argued that Judge Katzmann in the Second Circuit had been correct. After a petition for en banc rehearing was denied, Gonzalez sought cert on the specific issue of whether Section 230(c)(1) immunizes Internet companies for making targeted recommendations provided by other parties or if the liability is limited to only traditional editorial functions.
Despite there being no circuit split or even intra-circuit split, as every court to have considered the issue has agreed that targeted recommendations are protected by Section 230, the Supreme Court granted cert.