“Material Support for Terrorists” Lawsuit Against YouTube Fails Again–Gonzalez v. Google

August 20, 2018 · by Eric Goldman · in Content Regulation, Derivative Liability

This is one of numerous lawsuits against social media providers, seeking to hold them liable for terrorist attacks because they publish third party-provided terrorist-related content. These lawsuits have gone nowhere, including this one. I blogged the dismissal of the Second Amended Complaint. The plaintiffs tried a Third Amended Complaint, but it too fails. Remarkably, the court gives the plaintiffs a fifth chance, but only on one theory. When that theory inevitably fails, the case will be ready for its almost-certainly-futile appeal.

Section 230

For the most part, the court treats the plaintiffs’ arguments as reconsideration of its ruling on the Second Amended Complaint. The court recaps:

Claims one through four allege that Google violated the material support statutes by permitting ISIS and its supporters to publish harmful material on YouTube, and by failing to do enough to remove that content and the users responsible for posting the material. These claims target Google’s decisions whether to publish, withdraw, exclude, or alter content, which is “precisely the kind of activity for which section 230 was meant to provide immunity.”

The court takes a dangerous turn into what constitutes “neutrality” as articulated by Roommates.com:

As with Google’s targeted ad algorithm, there is no indication that its content recommendation tool is anything other than
content neutral. Plaintiffs dispute this, arguing that Google’s promotion of ISIS videos is not content neutral because “it looks to the content as well as the characteristics of the targeted viewer to decide which videos should be promoted.”…As with the Yelp review at issue in Kimzey that was linked to a different website, Google’s content recommendation tool “does not change the origin of the third-party content” that it recommends. Google’s provision of neutral tools such as its content recommendation feature does not make Google into a content developer under section 230, because as currently alleged, the tools do not encourage, elicit, or make aggressive use of the posting of unlawful or objectionable material (citing Kizmey v. Yelp),

This discussion is incoherent. It’s not credible to say that YouTube’s recommendation engine is “content neutral.” No “recommendation engine” ever could be “content neutral”–it wouldn’t be making recommendations then, would it? It would be more precise to say that YouTube’s recommendation engine doesn’t inherently prioritize terrorists’ videos over other videos, but (1) that still doesn’t fit the “neutrality” vernacular, and (2) Section 230 protects editorial discretion, so it should apply even if YouTube did prioritize terrorist videos. The court gets to the right place, but the reliance on “neutrality” garbles the analysis.

The plaintiffs newly allege that YouTube concealed its support for terrorists. The court says this is just a repackaging of the other claims preempted by Section 230:

Plaintiffs’ concealment claim ultimately seeks to hold Google liable for allegedly failing to prevent ISIS and its supporters from using YouTube, and by failing to remove ISIS videos from YouTube. As with claims one through four, the concealment claim “requires recourse to that content” to establish any causal connection between Google permitting ISIS to use YouTube and the Paris attack. The claim thus “inherently requires the court to treat [Google] as the ‘publisher or speaker’” of ISIS content.

The other new allegation is that YouTube engaged in transactions with blacklisted terrorist organizations. The court also says this is a recapitulation of the other preempted claims.

Proximate Causation

The Ninth Circuit’s Fields v. Twitter ruling made it quite clear that social media providers are not proximate causes of terrorist-caused injuries. The plaintiffs here do not overcome that standard: “the TAC does not allege a direct relationship between the “material support” that Google allegedly provided to ISIS and the Paris attack. While the TAC includes detailed allegations regarding the alleged use of YouTube by ISIS and its affiliates, the TAC does not allege any facts plausibly connecting the general availability of YouTube with the attack itself.” The court rejects the new causation allegations as too attenuated and speculative.

The court treads a little more cautiously with the allegations that YouTube shares revenues with the terrorists. The plaintiffs allege that YouTube’s financial support allowed the terrorists to redirect resources towards the attacks that killed the victims, but the Ninth Circuit expressly rejected that argument in Fields. Thus, this allegation also fails, but the court gives the plaintiffs another chance. This is generous by the court because the claim clearly has no chance.

So, the case fails again. Inevitably this genre of anti-Section 230 litigation will fade away.

Case citation: Gonzalez v. Google, Inc., 2018 WL 3872781 (N.D. Cal. Aug. 15, 2018)

“Material Support for Terrorists” Lawsuit Against YouTube Fails Again–Gonzalez v. Google

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