Public Knowledge Asks Supreme Court To Protect Free Expression, Competition Online in Gonzalez v. Google

Congress enacted Section 230 of the Communications Decency Act to permit interactive computer services to exercise editorial discretion when publishing third-party content, without facing liability. This case seeks to hold YouTube liable for publishing objectionable third-party content. Section 230 does not allow this. Petitioners try to work around this clear statutory prohibition by characterizing their theory of liability in different terms. They say that they seek to hold YouTube liable, not for publishing third-party content, but for “recommendations” or for what the United States calls “YouTube’s own conduct in designing and implementing recommendation algorithms that result in the communication of a distinct message from YouTube.” But this attempt to plead around Section 230 must fail. YouTube’s conduct in this case may be culpable, but that conduct was publishing and immunized by Section 230. Characterizing content recommendations as something other than “publication,” or pleading causes of action that do not name publication as an element does not change this. Theories of liability that depend on the harmful contents of third-party material constitute “treating” a provider as a publisher and are barred by the statute. Section 230 protects the publication of third-party content, and it does so robustly. But it protects only that. Just as some plaintiffs attempt to evade Section 230 by characterizing their claims in other terms, some defendant providers attempt to use Section 230 as a defense in situations where it simply does not apply. As this case is the Court’s first full opportunity to consider the meaning and scope of Section 230, it has the opportunity to provide clarity to both lower courts and litigants as to both the reach, and the limits, of Section 230. Section 230 is intended to promote free expression and competition online and to maximize the ability of internet users to control the information they see online. It is not a perfect statute, but its fundamental policy goals of free expression, competition, and user control are sound. Congress, and not the courts, is the best avenue for policy changes designed to better promote these goals while reducing online harms.