Are Google, Twitter and Facebook responsible for ISIS-led terrorist attacks? Can plaintiffs sue on the theory that these social media companies can and should do more to "screen out" motivational videos and other speech by terrorists?
That's the question raised by today's Ninth Circuit opinion.
You'll have to be dedicated -- very dedicated -- to read the entirety of the Ninth Circuit panel's response. There's not one page, or a dozen pages, or even a dozen dozen pages. The whole thing takes up 167 pages of single-spaced text. Wow. We're talking about setting aside several hours if you want to read the entire opinion, including but not limited to the separate views of each of the three members of the panel.
There's obviously a lot at play here. Including but not limited to the doctrinal scope of the immunity granted to Internet providers under Section 230 of the Communications Decency Act. Plus, unspoken but underlying the entire debate are contemporary politics, including the recent attacks on "Big Tech" (and Section 230 immunity) as well as the overarching political discourse about whether we're too solicitous of free speech these days.
I won't try to summarize the entire 167; nor could I, even were I sufficiently motivated to do so. But I will nonetheless highlight this little tidbit from Judge Gould, found on page 128 (!) of the opinion:
"A variation on this view culminated in Brandenburg v. Ohio, 395 U.S. 444 (1969), where the Supreme Court suggested that imminent lawless action was necessary before speech should be constrained. But perhaps given the current state of society, and the catastrophic dangers to the public that can be posed by terrorist activities, public safety may require that speech be limited when it poses a clear and increasing or gathering danger, rather than only “imminent” danger as reflected in Brandenburg, which I consider the Supreme Court’s last word on this subject."
I know I'm an "old-school" First Amendment guy. But my reaction to this passage was: "Yep. That's how it starts."
And I don't particularly like how I think that process ends.
