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Why we're joining arguments on a case before the U.S. Supreme Court

Updated: Jul 21, 2023

Two U.S. Supreme Court cases will determine the future of free speech and expression on the internet - one is Twitter v. Taamaneh, the other is Gonzalez v. Google.

Mountain States Policy Center has joined free market think tanks from around the country, including the Center for Growth and Opportunity, the Beacon Center of Tennessee, the Minnesota Freedom Foundation, Illinois Policy, the Independence Institute, the Pelican Institute, the Libertas Institute, the James Madison Institute, the Rio Grande Foundation and the Oklahoma Council of Public Affairs in signing on to an amicus brief regarding the Gonzalez v. Google case. We're all in agreement with concerns about freedom of expression and the dynamism of the internet economy as we know it.

What is Gonzalez v. Google about? Simply put, it questions whether Section 230(c)(1) of the Communications Decency Act immunizes platforms from liability when they make targeted recommendations of user-generated content.

The case dates back to the ISIS killing of Nohemi Gonzalez in the November 2015 Paris attacks. There is no direct link between YouTube and Gonzalez’s death, no evidence that YouTube was used to plan the attacks or recruit the attackers. Nonetheless, Gonzalez’s family sued YouTube’s owner, Google, claiming that YouTube had hosted ISIS recruitment videos around the time of the attacks.

The trial court applied Section 230 and dismissed the suit. The US Court of Appeals for the Ninth Circuit affirmed the lower court’s decision. Now the case is headed to the Supreme Court. The plaintiffs contend that their lawsuit is not about the terrorist videos themselves, but about YouTube recommending those videos to users.

This case is unusual in that there was no circuit split for the Court to resolve, and it presents the Court with an opportunity to directly decide the extent of Section 230’s protections for internet platforms.

As our organizations point out in our brief:

"Removing Section 230’s litigation-cost shield would devastate many startups. For example, when a family-owned candle shop creates a website and allows customers to comment on their favorite candles, and the shop organizes the comments, that is protected by Section 230. When a local rock band sets up an online forum for its fans to discuss the band’s music or upcoming shows, and ranks the posts, that is protected by Section 230. Even relatively small sites use algorithms to help users and drive traffic. All would thus be harmed if Section 230 were constricted to exclude automated recommendation systems."

If the Court finds in favor of the Plaintiff, platforms will likely remove content that anyone asserts is defamatory or dangerous. While no one defends ISIS recruitment videos on the internet, there may come a time when a party in power declares certain political views as extremist or dangerous. If the Court rules in favor of Gonzalez, then many platforms will not bear the risk of hosting or allowing this content to rise to the top of newsfeeds or searches.

For those who have built alternate media structures to circumvent traditional media gatekeepers, this poses a risk of shutting down their distribution channels on social media platforms or search engine optimization rankings.

The only dynamic, growing part of our national economy in recent years has emanated from the internet. By gutting Section 230, the internet will cease to be the robust digital economy that has existed for the past 30 years.

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