As reported in prior Trending Law Blog posts, Section 230 of the Communications Decency Act, 47 U.S. §230(c)(1) (“§230”), has come under attack by politicians and members of the public who seek to remove the statute’s immunity provision which protects social media platforms when they are sued for re-publishing content on their websites from a third-party.
On May 18, 2023, the Supreme Court of the United States issued a per curiam decision in Gonzalez v. Google LLC in which the Court declined to address the application of §230 to a case which alleged that Google “was both directly and secondarily liable” for a terrorist attack as a result of a terrorist organization’s use of YouTube, which Google owns and operates. (The Gonzalez case was previously discussed in the November 30, 2022 Trending Law Blog.) Rather than addressing the issue substantively, the Supreme Court reversed and remanded the matter to the United States Court of Appeals for the Ninth Circuit, which had held that certain claims against Google were not barred by §230. The Court instructed the Ninth Circuit “to consider plaintiffs’ complaint in light of the Court’s decision in” Twitter, Inc. v. Mehier Taamneh (discussed below).
As in Gonzalez, the plaintiffs in Twitter, sued Google (as well as Twitter and Facebook), claiming that the social media platforms aided and abetted a terrorist organization responsible for a deadly terrorist attack by allowing the terrorists to use the social media platforms. More specifically, the plaintiffs contended that the social media platforms allowed the terrorists “to connect with the broader public, fundraise, and radicalize new recruits.”
After performing a very detailed and comprehensive analysis of the law relating to “aiding and abetting,” the Court unanimously held that the social media platforms did not “consciously, voluntarily, and culpably participate in or support” the terrorist attack. The Court also found that because the plaintiffs “failed to allege that defendants intentionally provided any substantial aid” to the attack “or otherwise consciously participated” in the attack, they failed to state a claim against the social media platforms.
Although the Supreme Court did not reach the issue of social media platforms’ immunity under §230 in Gonzalez or Twitter, as reported in the November 17, 2022 Trending Law Blog post, petitions for certiorari from decisions relating to §230 immunity for social media platforms are presently pending before the Supreme Court from the United States Courts of Appeals for the Fifth Circuit and Eleventh Circuit. It remains to be seen at this time though if the Supreme Court will grant those petitions.
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