What Happened to Gonzalez v. Google After the SCOTUS Decision?

July 10, 2024 · by Eric Goldman · in Content Regulation, Derivative Liability

In the mid-2010s, plaintiffs filed about 20 lawsuits filed around the country seeking to hold social media services liable for allegedly facilitating terrorist attacks. Two of those cases, Gonzalez v. Google and Taamneh v. Twitter, produced Supreme Court rulings last year. In Taamneh, the court held that Twitter could not be liable for aiding-and-abetting because, among other reasons, Twitter did not do anything that specifically facilitated the terrorist attack at issue. In light of that conclusion, the court declined to rule on the parallel Gonzalez v. Google case, saying that it’s likely none of it survived the Taamneh ruling, It sent the case back to the lower courts to figure it out.

This blog post recaps what’s happened to the Gonzalez case since then.

In Fall 2023, the district court asked the plaintiffs to provide a proposed Fourth Amended Complaint (FAC). The plaintiffs submitted the proposed complaint in February. Because the Taamneh decision wiped out its core claim, the plaintiffs shifted to entirely new legal theories: (1) Article 1382 of the French Code Civil which provides, “[e]very act whatever of man that causes damage to another, obliges him by whose fault it occurred to repair it” and (2) negligence, including a negligence per se claim based on 18 U.S.C. § 2339A (the federal statute banning material support to terrorists).

In filing the proposed FAC, the plaintiffs explain why they didn’t allege these claims before: they “reasonably believed” that the ATA, 18 U.S.C. § 2333, “was uniquely adapted to their grievance….§ 2333 was such a perfect fit for [their] claims.”

The court responds that this repositioning raises intractable jurisdictional problems. The California negligence claim doesn’t necessarily raise a federal question, because it can be resolved without reference to 2339A. The plaintiffs don’t have diversity jurisdiction either. Several indispensible plaintiffs were California residents at the time of filing, so there is not complete diversity of the parties.

Without any basis for federal court jurisdiction, the district court closes the case. After 8 years of litigation, the case ends on essentially a procedural technicality (an important one, but still…).

Though the case is closed, we’re still not at the end. The plaintiffs can, and likely will, appeal the jurisdictional ruling to the Ninth Circuit. They also could, in theory, file a complaint in state court, though I don’t know how they would get around the statutes of limitation that surely expired years ago.

The resolution of this case leaves open a key question about Section 230. In the pre-SCOTUS 2021 Ninth Circuit ruling in this case, the panel held that Section 230 didn’t apply when plaintiffs alleged that YouTube shared revenues with terrorists. The Supreme Court vacated the Ninth Circuit’s judgment, which I assume overrode the opinion providing that Section 230 exception. But the Supreme Court never expressly addressed the Ninth Circuit’s Section 230 exception, so will that exception still garner support in the Section 230 caselaw? The short answer is: I don’t know.

It’s a critical question because, read broadly, the Ninth Circuit’s prior ruling could stand for the proposition that Section 230 never applies when a service pays for third-party content. That would have dramatic implications for services like YouTube, which has a large revenue share program, but also for many other UGC sites that compensate authors one way or another. And if the Section 230 exception discourages services from paying authors, that could have important ripple effects throughout the entire content ecosystem. This ambiguity casts yet another dark shadow over the modern strength of Section 230’s immunity.

Case Citation: Gonzalez v. Google Inc., 2024 WL 3331649 (N.D. Cal. July 8, 2024)

Prior Blog Posts:

What Happened to Gonzalez v. Google After the SCOTUS Decision?

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