Gonzalez v. Google LLC, 598 U.S. 617 (2023) was decided by the Supreme Court of the United States on May 18, 2023 (No. No. 21-1333). The Court issued a per curiam opinion vacating 2 F.4th 871 and remanding for the Ninth Circuit to reconsider the complaint in light of Twitter v. Taamneh. It expressly declined to decide the scope of Sec. 230 immunity for algorithmic recommendations. The question of whether platform recommendation systems fall outside publisher immunity therefore remains open at the Supreme Court level, and litigants must instead clear the substantive Sec. 2333(d)(2) threshold set by Taamneh.
The question before the court
Does Section 230(c)(1) of the Communications Decency Act immunize a platform against Anti-Terrorism Act claims premised on its algorithmic recommendation of terrorist content? And should the Court reach that question when the underlying complaint may fail on the merits regardless?
The governing rule
18 U.S.C. Sec. 2333(a) creates a treble-damages action for a U.S. national injured by an act of international terrorism; 18 U.S.C. Sec. 2333(d)(2) extends liability to any person who 'aids and abets, by knowingly providing substantial assistance, or who conspires with' the person who committed an act of international terrorism committed, planned, or authorized by a designated foreign terrorist organization. Section 230 of the Communications Decency Act of 1996, 110 Stat. 137, 47 U.S.C. Sec. 230(c)(1), supplies the asserted immunity. Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023), decided the same day, governs the substance of the Sec. 2333(d)(2) aiding-and-abetting standard.
How the court applied it
The plaintiffs, family members of Nohemi Gonzalez, who was killed in the 2015 ISIS attacks in Paris, sued Google over ISIS's use of YouTube. The district court dismissed with leave to amend; plaintiffs stood on their complaint and appealed. The Ninth Circuit held most claims barred by Sec. 230(c)(1), carving out only the direct- and secondary-liability claims resting on allegations that Google approved ISIS videos for advertisements and shared the proceeds through YouTube's revenue-sharing system. Those revenue-sharing claims escaped Sec. 230 but failed on their own terms, and plaintiffs did not seek certiorari on that ruling. The Supreme Court granted review solely on the Sec. 230 question, but by the time of decision the ground had shifted. Plaintiffs conceded at oral argument that their secondary-liability allegations were materially identical to those in Twitter v. Taamneh, where the Court held the complaint failed to state an aiding-and-abetting claim under Sec. 2333(d)(2). The Ninth Circuit had separately held that plaintiffs plausibly alleged neither an agreement with ISIS for conspiracy liability nor the intent to intimidate or coerce required for direct liability under Sec. 2333(a). The Court therefore concluded that much, if not all, of the complaint failed independent of Sec. 230, and declined to construe the immunity provision on a record that did not require it.
What the court concluded
The Court issued a per curiam opinion vacating 2 F.4th 871 and remanding for the Ninth Circuit to reconsider the complaint in light of Twitter v. Taamneh. It expressly declined to decide the scope of Sec. 230 immunity for algorithmic recommendations. The question of whether platform recommendation systems fall outside publisher immunity therefore remains open at the Supreme Court level, and litigants must instead clear the substantive Sec. 2333(d)(2) threshold set by Taamneh.
From the opinion
- “"We therefore decline to address the application of Sec. 230 to a complaint that appears to state little, if any, plausible claim for relief."”
- “"the allegations underlying their secondary-liability claims are materially identical to those at issue in Twitter"”
- “"we vacate the judgment below and remand the case for the Ninth Circuit to consider plaintiffs' complaint in light of our decision in Twitter"”
Why it matters for cyber conflict
The decision leaves platform immunity for algorithmic amplification of extremist and hostile-actor content unresolved at the highest level, so cyber-conflict plaintiffs pursuing intermediaries must litigate the substantive aiding-and-abetting standard rather than fight over Section 230.
Editorial note: this case note was drafted with AI assistance by the JLCW Research Desk, checked against the text of the opinion, and reviewed by a human editor before publication. Every quotation above is carried through from the opinion itself. See our editing policy.
Read the opinion: Gonzalez v. Google LLC on CourtListener. This note is a summary prepared by the Journal, not legal advice, and not a substitute for the opinion itself.
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