Gonzalez v. Google: Why is the Supreme Court listening to this case?

Today the United States Supreme Court begins listening to oral arguments in a case that, depending on the decision, could change the business model of the internet. The case, Gonzalez v. Google, presents the following question:

“Does section 230(c)(1) [of the Communications Decency Act] immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?”

If the court were to answer “yes” to the first part of the question, then Google and other platforms that use what they know about their subscribers’ behaviors would be protected from any liability created by the content they recommend. For example, if YouTube recommended, based on my search behavior, a video about bungee jumping, and I went out and bungee jumped using a technique I saw in a recommended video, YouTube would be protected from liability.

If the court answers “no” to the first part of the question, then Google or any other platform that recommends content could lose protection from liability stemming from the content it recommends.

To the second part of the question, if the court answers “yes” along with a “yes” answer to the first part of the question, then the social media business model of recommending content will continue as we know it. But even a “no” answer to the second part of the question along with a “yes” answer to the first part will work to keep the current business model intact since a “no” answer to the second part would serve to expand the liability protections.

A lot hinges on the answer to the first part of the question. Social media companies need to keep subscriber eyeballs glued to their portals. They have collected a lot of data on human behavior and tastes and making recommendations about content is one way that they leverage the data to keep the subscriber engaged. To protect themselves, social media companies will have to scrub the content they recommend, making sure that the likelihood of liability coming back to haunt them is at a bare minimum. Their editorial tasks will increase.

Beyond the instant matter before the court is a more general question: Why is the court listening to this question in the first place? Yes, there are the questions about whether there is a state action and if so, in the case where the case action is a law, how should this law be interpreted. But I believe that there are two questions a court should ask before any of the two questions in the current case.

First, does the action destroy, reduce, or alter in any way the structure of the government as described in the U.S. Constitution? If yes, then the action should be reviewed and if the court cannot find any exceptions, then the action should be declared unconstitutional and vacated.

Second, does the action destroy, reduce, or alter in any way the relationship between the federal government and the taxpayer, especially as provided in the Bill of Rights? Again, if yes, then the court should review the action, and if no exceptions are found, declare the action as unconstitutional.

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Under this framework, a priori, the vast majority of cases heard should not have been given the time of day that the U.S. Supreme Court has afforded them. This framework would put stringent limits on the judicial branch’s intrusion into individual lives and markets. For example, as I laid out earlier, the court could severely alter the social media business model with a “no” answer to the first part of the question presented. Since section 230 (c)(1) has no impact on the make up or operations of the U.S. government and since the section does not change the relationship between the individual and the federal government, this case and others like it, should not be heard.

Alton Drew

21 February 2023

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