The case could have long-term implications for how broadly fair use can be applied.
Advocates for free speech, an open internet, and sensible tech policy were anxiously awaiting the Supreme Court’s decision in Gonzales v. Google, a case that gave the Court a chance to weigh in on a controversial law called Section 230. Now that ruling is here—and it’s good news for civil libertarians concerned about Section 230’s fate.
Sometimes described as “the internet’s First Amendment,” Section 230 protects “interactive computer services” from some liability for user speech. It has faced constant attacks in recent years from politicians and advocates on the left and on the right. Section 230 haters want to give individuals and states more ability to bring successful civil suits against tech companies for all sorts of harms allegedly caused by user content. Doing so would, of course, seriously weaken the incentives and protections for free speech online.
In Gonzales v. Google, the family of a young American woman killed in an Islamic State group attack in Paris argued that YouTube and its parent company, Google, were guilty of aiding and abetting terrorists because YouTube allowed the posting of Islamic State group videos and sometimes recommended them. Google argued that Section 230 immunizes it from such claims.
The case was being carefully watched by both supporters and opponents of Section 230.
The crux of the case concerned YouTube’s use of algorithms to sometimes recommend Islamic State group videos to viewers who had watched similar content.
“On appeal to the Supreme Court, Gonzalez’s family concedes that Section 230 means Google, which bans YouTube videos ‘intended to praise, promote, or aid violent extremist or criminal organizations,’ cannot be sued for failing to fully enforce that policy,” noted Reason‘s Jacob Sullum. “But the plaintiffs argue that the company can be sued for pointing users to such videos when they view similar content, and the Biden administration agrees.” If SCOTUS also concurred, “every provider of an ‘interactive computer service’ will have to worry about the legal risk of guiding users through a massive morass of material that would otherwise be unmanageable,” pointed out Sullum.
On Thursday, the Supreme Court effectively sidestepped the issues of algorithms and Section 230 immunity in a narrow decision that only addressed the underlying claim that Google was guilty of violating Section 2333 of the federal Anti-Terrorism Act.
The Court also ruled yesterday in Twitter v. Taamneh, a similar case involving plaintiffs trying to hold Twitter liable for allegedly failing to adequately moderate Islamic State group content. In a unanimous ruling penned by Justice Clarence Thomas, the Court held that Twitter did not meet the necessary elements to be guilty of “aiding and abetting” terrorists. From the decision:
In this case, the failure to allege that the platforms here do more than transmit information by billions of people—most of whom use the platforms for interactions that once took place via mail, on the phone, or in public areas—is insufficient to state a claim that defendants knowingly gave substantial assistance and thereby aided and abetted ISIS’ acts. A contrary conclusion would effectively hold any sort of communications provider liable for any sort of wrongdoing merely for knowing that the wrongdoers were using its services and failing to stop them. That would run roughshod over the typical limits on tort liability and unmoor aiding and abetting from culpability.
In a short per curiam decision, the Court also held that the Gonzalez family had failed to state an adequate Anti-Terrorism Act claim against Google. And since Google didn’t commit an underlying violation, there was no need for the Court to address whether Section 230 applied here.
“It has become clear that plaintiffs’ complaint—independent of §230—states little if any claim for relief,” the Court’s opinion says. “We therefore decline to address the application of §230 to a complaint that appears to state little, if any, plausible claim for relief. Instead, we vacate the judgment below and remand the case for the Ninth Circuit to consider plaintiffs’ complaint in light of our decision in Twitter.”
That doesn’t mean Section 230 is safe from Supreme Court rulings that it doesn’t apply to algorithmic recommendations, merely that the issue was avoided for now. With social media companies constantly in the hot seat these days, it’s likely we’ll see similar cases before the Supreme Court again in the future. And as Justice Ketanji Brown Jackson wrote in a short concurring opinion in Twitter v. Taamneh, “Other cases presenting different allegations and different records may lead to different conclusions.”
But these decisions are perhaps encouraging in that they show “these justices grasp that online moderation is not an easy task,” as Scott Shackford noted here yesterday.
TikTok creators sue over Montana ban. In yesterday’s Roundup, we covered Montana’s new statewide ban on TikTok, noting that it was sure to spawn some First Amendment lawsuits. The first of those is already here.
“We filed suit last night challenging Montana’s unconstitutional ban of TikTok, on behalf of 5 TikTok creators,” the law firm Davis Wright Tremaine announced yesterday. “Lead counsel is Ambika Kumar, who represented other creators in securing an injunction of President Trump’s 2020 ban.”
You can find their full complaint, filed in the U.S. District Court for the District of Montana, here.
When the brand is you…and the market shifts. “The relentless cycle of selling and repackaging the self not only creates a dizzying array of personas to uphold but also lays the foundation for an existential crisis when the demand for one’s curated identity dwindles”: Oliver Bateman at Unherd has an interesting essay about O.G. “mommy blogger” Heather Armstrong. Armstong—better known as “Dooce”—committed suicide last week. Bateman suggested that Dooce’s shifting feelings about her work between the early ’00s and more recent years reflects broader shifts in the economic realities of online content creation as a career and cultural enthusiasm around the possibilities of sharing one’s life online:
Somewhere between introducing a guide to making money from nonstop mommy blogging and declaring mommy blogging dead, Armstrong came to recognise — or decided to admit — the negative impact her work was having on her mental health. In the foreword [to 2011’s Mom Blogging for Dummies], she writes with a sense of pride, “I don’t get to go on vacation.” In The Valedictorian of Being Dead, she expressed her longing for an escape “the hamster wheel of my day-to-day existence”:
“I knew I just couldn’t do it anymore when I was trying to get my kids into the car to play a word game while driving to a ranch in the mountains. This would be the third of three posts I was to write for an automotive brand about quality time with my kids in the car … Marlo did not want to participate in yet another ruse, and I had to bribe and threaten and cajole to get her in that car. Right as she opened her door, she looked up at me through tears and begged, ‘Please, Mom, don’t make me do this.'”
Armstrong’s transition from viewing her work as a fulfilling occupation to a trap reflects the paradoxical reality of life as a content creator: the same facts, framed differently as market conditions changed, transformed from a testament of her dedication to a cry for relief. But it also speaks to a universal experience of life lived in the digital age. Her journey — from a person who wrote about her life on the internet for fun to an entrepreneur supporting not only her family but also employees with her blog revenues — illustrates the tremendous opportunity of the dotcom boom. But it also reveals the precarity inherent in what was then a burgeoning marketplace of intimate stories that would, as one critic observed later, gradually evolve into a “personal-essay industrial complex”.
The post-liberal authoritarians of the New Right want you to forget that private companies also have rights. The latest example comes from Sen. J.D. Vance (R–Ohio), who told an audience at Catholic University on Wednesday that “there is no meaningful distinction between the public and the private sector in the American regime.”
Reason Senior Editor Stephanie Slade responds:
There are, of course, countless ways that the public sector—government—has its tentacles in private sector affairs. Through taxation and regulation; through the subsidies and targeted benefits that are a mainstay of the industrial policy that so many on the New Right want to double down on; and, yes, through insidious pressure campaigns like those uncovered through the Twitter and Facebook Files, state power is routinely brought to bear to nudge or compel private actors into doing what those holding the power want. Needless to say, we should be skeptical, if not hostile, toward all such efforts.
Interestingly, this does not appear to be what Vance is referring to. If anything, he’s saying it’s naive to focus on instances of state coercion. Instead, Vance seems upset that some business executives share the same “woke” values that government actors express. (They are, after all, highly educated fellow members of the professional managerial class!) And because they believe in radical environmentalism, trans-inclusive politics, and all the rest, according to Vance, these private sector leaders are all too happy to collaborate with lawmakers and federal bureaucrats to put those values into practice.
Vance here is channeling the neoreactionary blogger Curtis Yarvin, a.k.a. Mencius Moldbug, who has popularized the idea that “all the modern world’s legitimate and prestigious intellectual institutions, even though they have no central organizational connection, behave in many ways as if they were a single organizational structure” with “one clear doctrine or perspective.” He calls this decentralized entity “the Cathedral” and argues that the only way to combat it is by replacing America’s liberal democratic regime with an absolute monarchy or (benevolent, one hopes) dictatorship.
But Vance goes further even than Yarvin, who defines the Cathedral as consisting of the mainstream media and the universities; Vance insists that government officials are also implicated. This step is critical, because the New Right, rejecting the classical liberal commitment to limited government and rule of law, openly calls on conservatives to wield state power against their domestic political “enemies,” among whom it counts lefty corporations, universities, and nonprofits….
This is obviously contrary to the laws of our land. The American constitutional system “protects private actors,” says Notre Dame law professor Richard W. Garnett, while constraining how government officials can exercise their power. “Private actors have free speech rights. The government doesn’t. Private actors have freedom of religion. Government doesn’t. Private schools can train kids for their sacraments. Government schools can’t. The whole landscape of our constitutionally protected freedoms depends on this conceptual distinction between state power and the nonstate sphere.”
But that distinction is an obstacle preventing post-liberals such as Vance from using the government to punish private entities who express views or implement policies that they, the post-liberals, dislike. And so, to give themselves permission to do what they want, they have to get people to believe that the distinction is already obsolete.
Read the rest here.
Can governments increase birthrates? Should they? Live with @nickgillespie, @ENBrown, and @swinshi. https://t.co/5ddpvk74py
— reason (@reason) May 18, 2023
• “The Supreme Court on Thursday sided with a photographer who claimed the late Andy Warhol should have honored her copyright on a photo of the rock star Prince when creating an iconic artistic image of the late singer,” The Washington Post reported.
• Dominant tech firms tend to be OK with stricter regulation because they know it will lock in their advantage over smaller competitors—a thread:
We're falling for this (shit), again:
–Altman, CEO of OpenAI calls for US to regulate artificial intelligence (BBC) May '23
–Zuckerberg, We need a more active role for governments and regulators Oct. '20
–Facebook COO Sandberg calls for government regulation (CNN) June '19
— Scott Galloway (@profgalloway) May 18, 2023
• Some new criticisms of marijuana legalization demonstrate “the pitfalls of a utilitarian analysis that ignores the value of individual freedom and the injustice of restricting it to protect people from themselves,” Sullum argues.
• Mary Wollstonecraft “noted that it wasn’t only society’s warped focus on women’s biology that hampered progress towards educational equality but also, more specifically, society’s obsession with female ‘purity,'” wrote Victoria Bateman in an excerpt from her book Naked Feminism.
• The R Street Institute’s Shoshana Weissmann has a new project looking at problems with age verification laws for social media:
I have a new policy series: The Fundamental Problems with Social Media Age Verification Legislation
This is going to explore just about every issue with this legislation: https://t.co/xAtKD4AmLD
— Shoshana Weissmann, Sloth Committee Chair ???? /bsky (@senatorshoshana) May 16, 2023
• “A man who has been in prison for more than 30 years for a murder almost everyone agrees he did not commit is getting a chance at freedom,” reported St. Louis Public Radio.
• New York City cops confiscated a woman’s dog because she was filming police. That woman—Molly Griffard, a lawyer with the Legal Aid Society—is now suing.
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