IRVINE, Calif. (Jan. 19, 2023) — The International Justice Clinic at University of California, Irvine School of Law, and ARTICLE 19, a world-leading free speech organization, asked the Supreme Court to maintain the existing protection of freedom of speech online in an amicus brief filed today.
In Gonzales v. Google, the Supreme Court may consider whether the liability shield of Section 230 of the Communications Decency Act of 1996 applies to user-generated content promoted through automated recommendation systems. The joint intervention urges the Court not to limit Section 230’s application as this would severely limit freedom of expression online in the U.S. and beyond.
The case Gonzales v. Google concerns the death of Naomi Gonzales (petitioner’s daughter) during an ISIS attack in Paris. The Gonzales family sued Google under the Anti-Terrorism Act (18 U.S.C. §2333) arguing that Google, through its YouTube recommendation systems, pushed ISIS videos to users and is thus partially responsible for Naomi’s death. The petitioner argues that Section 230 does not shield internet platforms from liability for content that is promoted through automated recommendation systems. The case reaches the Supreme Court after a District Court dismissed petitioner’s claims in favor of Google, and the 9th Circuit court affirmed the dismissal. The Court will hear the case in February 2023.
The brief argues that a Supreme Court decision in favor of the Petitioner would radically change the Internet and weaken free expression. If the Court limits the application of Section 230’s immunity, it would incentivize internet platforms to over rely on automated content moderation tools. These are notoriously poor at differentiating lawful from unlawful speech, leading to excessive removal of lawful, even public interest-oriented, content.
In the joint intervention, IJC and ARTICLE 19 call on the Supreme Court to protect free expression, uphold the settled approach by U.S. courts to Section 230, and defer to Congress in its consideration of how to address automated recommendation systems. In particular, they argue the following:
- First, the Court’s application of Section 230 should be guided by the protections for freedom of expression in the First Amendment and international human rights law. As support, the brief shows that the history and intention of Congress in passing Section 230 speak in support of protecting the free exchange of ideas online.
- Second, the petitioners’ claim effectively turns on the illegality of the ISIS-related content posted by users. As such, without immunity for the algorithmic recommendation systems that promoted this content, internet platforms are likely to over-remove content to avoid liability, resulting in significant actions against lawful content. The amicus highlights lessons learned from other jurisdictions’ efforts to address online content and foreign court decisions that have supported careful approaches to protect freedom of expression online.
- Finally, as ARTICLE 19 has highlighted elsewhere, there is good reason to pursue rights-respecting regulation of recommendation systems. The amicus argues, however, that legislative action – not judicial decision – is the appropriate avenue for such rulemaking.
The brief emphasizes that Section 230 was designed to promote the freedom of expression of internet users. As such, we urge the Court to affirm the lower court’s decision maintaining immunity under Section 230 and thus to protect and promote the freedom of individuals to seek, receive and impart information and ideas online.
IJC students Virginia Kennedy and Grace Palcic conducted major research and drafting in support of the brief. Counsel of record in the proceedings are Bob Latham, Marc Fuller, and Hannah Walsh of of Jackson Walker LLP.
About the International Justice Clinic
The International Justice Clinic at the University of California, Irvine School of Law seeks to advance human rights norms and protections and integrate them at national, regional, international and corporate levels—all while training the next generation of human rights lawyers. Directed by Professor David Kaye, former UN Special Rapporteur on freedom of opinion and expression, the clinic has extensive experience addressing threats to human rights, particularly in the digital realm. The clinic works alongside civil society organizations and other stakeholders from across the globe and emphasizes a multi-faceted approach to human rights advocacy.
Our students work on every aspect of the clinic’s projects. They conduct international legal research, engage in on-the-ground fact finding, hold interviews in cross-cultural settings, prepare written analyses, give formal presentations to governmental bodies, build multi-stakeholder coalitions, draft litigation briefs and policy documents and much more.
The clinic seeks to integrate marginalized and underrepresented voices and perspectives throughout our work.
About the University of California, Irvine School of Law
The University of California, Irvine School of Law is a top, visionary law school that provides an innovative and comprehensive curriculum, prioritizes public service, and demonstrates a commitment to diversity within the legal profession. UCI Law students have completed more than 135,000 hours of pro bono work since 2009. Forty-eight percent of UCI Law’s J.D. graduates are people of color. At UCI Law, we are driven to improve our local, national, and global communities by grappling with important issues as scholars, as practitioners, and as teachers who are preparing the next generation of leaders. The collaborative and interdisciplinary community at UCI Law includes extraordinary students, world-renowned faculty, dedicated staff, engaged alumni and enthusiastic supporters. More information on UCI Law is available here. Please follow us on Twitter @UCILaw, Facebook @UCIrvineLaw and Instagram @ucilaw.
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