Petitions of the week

In lawsuit against Google involving ISIS recruitment videos, a chance for the court to take up Section 230

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether federal law protects Internet platforms when their algorithms target users and recommend content, in a case alleging that Google aided ISIS’s recruitment through YouTube videos.

In a 2020 statement respecting the denial of certiorari in Malwarebytes Inc. v. Enigma Software Group USA, LLC, Justice Clarence Thomas wrote that “in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.” Thomas was referring to Section 203(c)(1) of the Communications Decency Act, which states: “No provider or user of an interactive computer service shall be treated as the publisher of or speaker of information provided by another information content provider.” Congress passed this law in 1996 after a New York court held an internet service provider liable for a defamatory statement posted on the website’s message board. “And in the 24 years since,” Thomas wrote in Malwarebytes, the justices “have never interpreted this provision. But many courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world.”

The petition in Gonzalez v. Google LLC tries to present itself as the case Thomas has been looking for. Reynaldo Gonzalez sued Google under the AntiTerrorism Act for the death of his daughter during an ISIS attack at a Parisian bistro in November 2015. Gonzalez claims that Google assisted and aided ISIS’s recruitment through YouTube videos. Acknowledging that Section 230 protects Google for ISIS’s posting of videos on YouTube, Gonzalez in his petition focuses on an allegation that Google “recommended ISIS videos to users.” Through its algorithms, Gonzalez maintains, Google presented ISIS videos to and targeted those users whose characteristics indicated that they could be interested in such content.

The district court dismissed Gonzalez’s claim on the ground that Section 230 nonetheless protected Google for its recommendations because ISIS produced the videos, not Google. The U.S. Court of Appeals for the 9th Circuit affirmed, concluding that Section 230 protects such recommendations, at least if the provider’s algorithm treated content on its website similarly. However, the panel in Gonzalez considered itself bound to reach this result because of a recent case on the same issue that another 9th Circuit panel decided while Gonzalez was pending. The Gonzalez panel further concluded that, if it could resolve the question itself, Section 230 would not protect a provider’s content recommendations.

Gonzalez admits that the circuits to face this question are not split. Instead, Gonzalez suggests that, had his case simply come out before the other 9th Circuit decision, then Google would be the one seeking review. Regardless, he maintains, the providers’ financial dependence on advertisements and hence on algorithms that can target users makes this question of recommendations important to resolve.

These and other petitions of the week are below:

Lund v. Datzman
21-1179
Issue: Whether the Heck v. Humphrey bar on suits under 42 U.S.C. § 1983 that “would necessarily imply the invalidity” of a conviction that has not been set aside is categorically inapplicable when a convicted individual brings a Fourth Amendment claim seeking damages for an unreasonable search or seizure but not for the conviction obtained using fruits of the constitutional violation, regardless of whether the factual record reveals a particular exclusionary-rule exception or harmless-error theory that could potentially sustain the conviction’s validity despite the violation.

Nordlicht v. United States
21-1319
Issue: Whether district courts have discretion to weigh the evidence, including the credibility of witnesses, when deciding to grant a new trial under Federal Rule of Criminal Procedure 33, or whether they must defer to the jury’s view of the evidence unless the evidence is patently incredible, defies physical realities, or is similarly flawed.

Sensenich v. PHH Mortgage Corporation
21-1322
Issues: (1) Whether appellate courts may affirm a bankruptcy sanctions order on an alternate correct ground even if the order does not analyze the ground; (2) whether sanctions based on inherent judicial power always require a finding of bad faith; and (3) whether Federal Rule of Bankruptcy Procedure 3002.1 authorizes punitive fines as a form of “appropriate relief.”

U.S. ex rel. Schutte v. SuperValu Inc.
21-1326
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among the counsel to the petitioners in this case.
Issue: Whether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it “knowingly” violated the False Claims Act.

Gonzalez v. Google LLC
21-1333
Issue: Whether Section 203(c)(1) of the Communications Decency Act immunizes interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limits 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.