Today, Public Knowledge filed an amicus curiae brief in the case Gonzalez v. Google. The brief argues that content recommendations are shielded by Section 230, and that only Congress should update the law in a way that furthers its goals of free expression and competition, while limiting the spread of online harms.
The following may be attributed to John Bergmayer, Legal Director of Public Knowledge:
“The question before the Court is not whether YouTube did the right thing by publishing terrorist videos. It did not, and this case—as well as many others—shows that policy responses are needed to address the spread of harmful, extremist, and hateful content online.
“But any such responses (and there is no one silver bullet) must come from Congress, not the courts. Section 230 of the Communications Act says that platforms like YouTube cannot be held liable for publishing user-uploaded material. As our brief explains, content recommendations that present videos to users meet even the narrow, common law conception of ‘publishing,’ and are squarely shielded by Section 230. Creative lawyering that describes the same set of facts in different terms does not get around this.
“Section 230 is a pro-competition, pro-free expression statute. A judicial rewrite of the statute to exclude some kinds of publishing, or some kinds of platforms, would undermine those goals. Any loophole created by the Court would be cited and expanded on by any one of hundreds of district court judges, and platforms would have to adjust: either by curtailing what (and if) users can post content, or turning their platforms into unmoderated free-for-alls where the worst users drown out everyone else. The largest platforms like YouTube, however, can probably invest enough to deal with changing legal exposure. Smaller platforms would not be able to.
“Understanding the reach of Section 230 is the same as understanding its limits. As written, Section 230 protects publishing, but only publishing. For example, it does not permit platforms to surveil their users, sell dangerous products, or evade normal state and local business regulation. Section 230 is not a deregulatory charter for the internet or a way to protect Silicon Valley business models.
“Section 230 protects YouTube. It protects Elon Musk’s Twitter. It also protects Mastodon instances run by individuals, social media users, and every website with a comment section. Changing such a wide-ranging law would have wide-ranging effects and the judiciary has neither the tools nor the expertise to do so.”
You may view the amicus brief for more information.
Members of the media may contact Communications Director Shiva Stella with inquiries, interview requests, or to join the Public Knowledge press list at firstname.lastname@example.org or 405-249-9435.