Prof. Adam Candeub, who led the National Telecommunications and Information Administration under President Trump where he was tasked with overseeing efforts to combat Big Tech censorship, is warning that an upcoming case before the U.S. Supreme Court risks strengthening Big Tech’s legal defense for censorship.
The Supreme Court will hear oral arguments in the case, Gonzalez v. Google, next month. The case is significant, as it is the first time Section 230 of the Communications Decency Act (CDA), the law that Big Tech uses to shield itself from liability in censorship cases, will be considered by the nation’s highest court.
The case, therefore, represents both an opportunity and a risk for opponents of Big Tech censorship: the court could determine that Section 230 does not shield tech companies to the extent that they have argued in lower courts — or it could reaffirm the liability shield.
In the case of the latter, it would represent a major setback for efforts to give consumers the power to seek legal redress against tech companies that unfairly censor them, such as Texas HB 20.
In an article for the Federalist Society, Candeub warns that the Gonzalez case, which seeks to make tech companies liable for carrying dangerous speech, is actually an argument for expanded Big Tech censorship, as it would make platforms liable for the content they refuse to take down, or fail to take down quickly enough.
The Gonzalez lawyers are concerned about insufficient content moderation, not just of terrorist activity, but also of constitutionally protected hate speech. This leads them to advance inconsistent positions. In their cert petition and merits brief, they argue for limiting Section 230(c)(1) with respect to targeted recommendations. But in an amicus brief submitted in the constitutional challenge to Florida’s social media law, which limits platforms’ ability to censor content in a viewpoint discriminatory manner, the same legal team argues for expanding Section 230(c)(1) to protect platform censorship. The parties in Gonzalez v. Google may not give the Court the opportunity to fully consider Section 230, as both petitioners and respondent seem, in certain respects, to be on Big Tech’s side.
According to Candeub, whether the Court decides to strengthen or weaken Big Tech’s legal basis for censorship (or neither), will depend on how it analyzes the “three-prong test” of Section 230.
Google’s three-prong test extends Section 230’s platform protection from suits alleging unlawful content in platform users’ posts to suits by users themselves alleging platforms’ wrongdoing that somehow involves user content. Courts employing a version of this test have used Section 230(c)(1) to block users’ suits for the platform’s fraudulent statements concerning content moderation policies, violation of contract obligations concerning platforms’ duties to publish content, and civil rights claims for wrongful account termination.
The Supreme Court must closely analyze the three-prong test because parties have converged on it in a rather strange way. Gonzalez’s petition for certiorari sought review of the “traditional editorial function” interpretation of Section 230(c)(1) which lower courts have drawn from misreading Zeran—and that was the question on which the Supreme Court granted review. Then, the Gonzalez plaintiffs submitted an amicus brief in the State of Florida’s certiorari petition appealing the 11th Circuit’s ruling striking down parts of the Florida social media law, S.B. 7072. In their amicus brief, the Gonzalez plaintiffs urged that the traditional editorial function interpretation preempts the Florida social media law—an argument Big Tech has made often and vociferously. It is difficult to see how such an argument helps the Gonzalez plaintiffs at all.
The case is Gonzalez v. Google LLC, No. 21-1333, in the Supreme Court of the United States.
Allum Bokhari is the senior technology correspondent at Breitbart News. He is the author of #DELETED: Big Tech’s Battle to Erase the Trump Movement and Steal The Election.