What's at Stake
The Supreme Court will decide whether social media and other platforms are liable for their users’ posts if they make recommendations or suggestions about what content to access, or whether Section 230 affords them immunity from such claims.
Google v. Gonzalez is the first Supreme Court case to consider the scope of Section 230 of the Communications Decency Act, which immunizes websites from legal liability for content provided by their users. The Court will consider whether sites lose that immunity when they “recommend” content to their users—a practice undertaken by virtually all social media platforms. As the ACLU’s amicus brief explains, platforms have no choice but to prioritize some content over other content, and because this is an inherent aspect of publishing online, they should be immune from liability for the substance of that content under Section 230 which provides that platforms may not be treated as the publisher of third-party content for liability purposes. Every time one does a Google search, Google “recommends” content by the order it lists its responses. The same is true for YouTube, which recommends similar videos based on a user’s choice of what to watch. If that sort of generic algorithmic recommendation is sufficient to deprive platforms of immunity, Section 230 will be rendered meaningless. And in the absence of immunity, platforms will be incentivized to censor lawful content or to feature only speech of little interest or value to users, contrary to the goals of Section 230.
On May 18, 2023, the Supreme Court noted that in light of its decision in Twitter v. Taamneh, “little if any” of the plaintiffs’ case remained viable. It was therefore unnecessary to address the question of whether Section 230 of the Communications Decency Act immunized the platform’s recommendation algorithms. The Court remanded the case to the court of appeals to determine whether any part of the plaintiffs’ argument could move forward in light of the Twitter ruling.