In October 2022, the Supreme Court granted certiorari in González v. Google, an appeal that challenged whether YouTube’s targeted algorithmic recommendations qualified as “traditional editorial functions” protected by the CDA — or, rather, whether those recommendations weren’t the actions of a “publisher” and therefore fell outside CDA immunity. At the time, some commentators warned that a ruling unfavorable to YouTube would “break the internet” and subject a number of modern platforms to crippling liability for self-moderation or recommendation of third-party content. At the very least, as we have offered in our previous post on Gonzalez case, an unfavorable ruling would have created a major CDA elimination, with online providers potentially losing immunity in cases where automated tools were used to organize, repackage or recommend third-party content. On May 18, 2023, in what proved to be a close shave for online platforms and Section 230, the Court declined to hear the CDA issues in the Gonzalez appeal.

The Supreme Court issued two rulings on May 18: one in Gonzalez case, and a second decision in Twitter in Goodbye, a related case against Twitter and other platforms. This second case undertook an analysis of liability for aiding and abetting under the Federal Anti-Terrorism Act (ATA) (18 USC § 2333) and whether some social media platforms could be held liable under the ATA for, among others things, the algorithmic recommendation of third party terrorist content to other users. (See Gonzalez v. Google Inc, NO. 21-1333, 598 US ____ (May 18, 2023) (by court); Twitter, Inc. v. TaamnehNo. 21-1496, 598 US ____ (May 18, 2023)).

Both cases involved allegations under the ATA that defendants on social media provided “material support” to ISIS terrorists through their use of the platforms. however, the Chirping The case focused on whether the social media company’s defendants aided and abetted ISIS in a 2017 terrorist attack on a Turkish nightclub. On the other hand, the Gonzalez case focused more on the availability of CDA 230 immunity for similar complaints against YouTube. Although the main issues were different, the cases were related and a ruling was adopted Chirping would inevitably have an impact on the outcome of the Gonzalez case. Given the interrelationship of the two cases, an adverse judgment no Chirpingfocused on the merits of the plaintiffs’ ATA claims, would doom the plaintiffs’ chances in Gonzalez (since the ATA’s underlying claims concerned relatively similar behavior by the defendants on social media in that case), and would also give the Court a launchpad to avoid having to deal with CDA 230 issues in the case Gonzalez appeal. And that’s exactly what happened.

A comprehensive overview of the Court’s analysis of liability for aiding and abetting under the ATA is beyond the scope of this post. However, in summary, the Court, section Chirping The case dismissed the ATA’s allegations against the social media defendants on the merits and seemed wary of substantiating a theory that could subject online platforms to vast liability simply for providing what amounts to a communications service. The Court stated:

“The fact that some offenders took advantage of these platforms is not sufficient to make a claim (under the ATA) that the defendants knowingly provided substantial assistance and thereby aided and abetted the acts of those offenders. And this is especially so because a contrary position would effectively hold any type of communications provider accountable for any type of wrongdoing simply because they knew the offenders were using their services and failed to stop them. Such a conclusion would overstep the typical limits of tort liability and take aiding and abetting well beyond its essential culpability moorings.

Arm yourself with the decision in Chirping case, the Court, in a For curiam opinion, noted that detention similarly applied to claims against YouTube in the Gonzalez case and remanded the case, noting that there is no need to elaborate on the defendants’ defenses on social media under the CDA and that ultimately the claims in Gonzalez were probably insufficient also in merit:

“(We consider) sufficient to acknowledge that much (if not all) of the plaintiffs’ claims appear to fall under … our decision in Chirping…. Therefore, we decline to address the application of §230 to a claim that appears to assert few, if any, plausible claims. Instead, we reverse the judgment below and refer the case back to the Ninth Circuit for it to consider the plaintiffs’ complaint in light of our decision in Chirping.”

With the Supreme Court having rejected the opportunity to self-enact the CDA reform, the breadth of Section 230 remains unchanged and providers can continue to operate without the uncertainty surrounding this appeal. Going forward, the industry will closely monitor the appeal certiorari application a Texas Social Media Rule (HB20) on First Amendment grounds currently before the Supreme Court. According to the signatories, HB20 has “burdensome operational and disclosure requirements” and would dampen editorial choices. In Congress, there’s still a lot of political chatter around Washington about “reigning Big Tech” on both sides of the aisle, but no consensus on how to achieve it through CDA reform without affecting the vibrant Internet. The urgency of implementing CDA reform appears to be tempered by attention to the technology issue of the day, artificial intelligence (AI). Indeed, following the CEO of OpenAI Sam Altman’s appearance before the Senate Judiciary Subcommittee on Privacy, Technology and the Law last week, there appears to be a bipartisan willingness to regulate this emerging area. Will the CDA get involved in a larger legislative effort focused on artificial intelligence? Or, it will be left out, an orphan legal issue overshadowed by this new technology. We’ll have to wait and see how all of this plays out. But meanwhile, the CDA still survives!