Levin Papantonio Rafferty (LPR) attorneys fighting to hold social media companies accountable for recommending harmful content or supporting acts of international terrorism by hosting terrorist content filed amici curiae (friends of the court) briefs with the Supreme Court of the United States (SCOTUS). The Court is reviewing these briefs and those submitted by other parties in two controversial cases for which it is hearing oral arguments this week.

Amicus Brief Challenging in re Gonzales v. Google

On Tuesday, the Court heard oral arguments in Gonzalez v. Google arguing that the tech giant should not be immune from suit for its own alleged conduct in recommending and/or suggesting terrorist content. The suit stemmed from a claim that Google’s algorithms recommended Islamic State videos to users, leading to the death of an American who was killed when followers of the Islamic State attacked in Paris.

In December 2022, LPR Attorney and Shareholder Kim Adams, filed Brief of Amici Curiae Counter Extremism Project (CEP) and Hany Farid in Support of Petitioners in re: Reynaldo Gonzalez, et al. v. Google LLC., strongly urging SCOTUS to reverse the Ninth Circuit’s decision broadly interpreting Section 230.

Section 230 of the Communications Decency Act is part of the Telecommunications Act of 1996 that regulates internet service providers. The section has been broadly interpreted to provide almost unlimited legal immunity from liability for internet service providers.

The amicus brief states the argument that Google-generated recommendations and should not be protected by “Section 230.”

The amicus brief further states:

“…Google’s recommendation algorithms—and those of similar tech companies—are, from top to bottom, the sum of choices made by their profit-seeking owners, maintained for the purpose of aggressively monetizing their platforms…

 

“…Some ISPs accumulate billions in profits from advertising—including YouTube, which saw $20 billion in profits in 202015—through programs and processes intentionally developed to elicit and entice users to engage. But if that conduct leads to real-world torts and crimes, the Ninth Circuit’s broad read of Section 230 would immunize those ISPs, leaving victims and survivors with no recourse. This Court should not expand Section 230 beyond where it started.”

Although Adams does not represent the plaintiff in Gonzales v. Google, the outcome of the case could impact LPR social media harm and addiction cases or any case where an online platform has been engaged in negligent conduct.

Amicus Brief Challenging in re Twitter v. Taamneh

On Wednesday, the Supreme Court will consider whether recent amendments to the federal Antiterrorism Act can be used to hold internet platforms liable for “aiding and abetting” terrorism when they fail to adequately monitor and remove terrorism-related content, as well as monetize and prioritize such content using their algorithms.

Plaintiffs in this case allege that internet service providers, including Twitter, aided and abetted the growth of the Islamic State by serving as the platform for supporters’ messaging, recruitment, and acts of terrorism.

In January 2023, LPR Attorney and Shareholder Chris Paulos and Attorney Stephen I. Vladeck filed Brief of Anti-Terrorism Act Scholars as Amici Curiae in re: Twitter v. Mehier Taamneh. The brief describes the “friends of the court” as “16 law professors who write about, research, and teach civil procedure, counterterrorism law, federal courts, and/or statutory interpretation.”

The brief and others filed by amici aim to “put into proper context claims seeking to impose secondary liability under the Anti-Terrorism Act (ATA)… as amended by the Justice Against Sponsors of Terrorism Act (JASTA).”

The brief also served as a direct response to the Department of Justice (DOJ)’s amicus brief in support of Twitter, which “in several key respects, misstates or otherwise conflates the scope of secondary liability that Congress authorized under the ATA and reaffirmed in JASTA.”

The amicus brief further states:

“…much of DOJ’s analysis is inconsistent with JASTA’s plain text and with Congress’s unambiguous purpose in enacting that statute—which was to adopt the framework for secondary liability articulated in Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983). It is also inconsistent with prior submissions that DOJ has made to federal courts on the same issue.”

 

“As the text and history of both JASTA and the ATA make clear, Congress knew exactly what it was doing in 2016 when it authorized secondary civil liability— on “the broadest possible basis”—against those who provide assistance or conspire with a “person” who commit acts of international terrorism… In so providing, Congress not only clarified an ambiguity in the ATA as originally enacted (and subsequently interpreted); it expressly authorized theories of secondary liability that run to the outer bounds of what common law courts have recognized.” The outcomes of both cases could have dramatic impacts on how social media platforms are empowered and to what extent they may be held responsible for the social harm that their technologies are alleged to have caused.

 

The outcomes of both cases could have dramatic impacts on how social media platforms are empowered and to what extent they may be held responsible for the social harm that their technologies are alleged to have caused.

 

“For too long now, certain big-tech corporations have been given total immunity from any damage that their products and platforms cause,” Paulos said. “Today’s internet isn’t a simple collection of digital billboards, and these platforms are no longer simply publishing third-party content.

 

“Instead, they are using sophisticated algorithms that purposefully select what users post, share, and consume. In turn, they monetize the attention spans of their users by feeding them an infinite scroll of information designed to keep them engaged for as long as possible.

 

“For some, this leads into an echo chamber of violent and extreme content. These cases are about the tragic consequences of these powerful technologies,” Paulos concluded.