Amicus Curiae Brief — Reynaldo Gonzalez, et al., Petitioners v. Google LLC

No. 21-1333

In the

Supreme Court of the United States

REYNALDO GONZALEZ, et al.,

Petitioners,

v.

GOOGLE LLC,

Respondent.

On Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

BRIEF OF AMICI CURIAE ZIONIST

ORGANIZATION OF AMERICA AND

THE RIEDERS FOUNDATION

IN SUPPORT OF PETITIONERS

Clifford A. Rieders

The Rieders Foundation

161 West Third Street

Williamsport, PA 17701

(570) 323-8711

Susan B. Tuchman

Counsel of Record

Zionist Organization

of A merica

633 Third Avenue,

Suite 31-B

New York, NY 10017

(212) 481-1500

stuchman@zoa.org

Attorneys for Amici Curiae

317349

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

T he Te x t of § 2 3 0 (c) (1) D o e s Not

Suppor t Immuni zing Computer

Ser vice Providers W hen They Make

Targeted Recommendations of Content

to Their Users . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. Affording Sweeping Immunity to Computer

Service Providers Under § 230(c)(1) for

Making Targeted Recommendations of

Information to Users Would Foment Already

Soaring Antisemitism . . . . . . . . . . . . . . . . . . . . . . 6

III. Affording Sweeping Immunity Under

§ 2 3 0 (c) (1) f o r M a k i n g T a r g e t e d

Recommendations of Information to Users

Would Undermine the Legal Protections

Afforded to American Victims of International

Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

ii

TABLE OF AUTHORITIES

Page

Cases

Force v. Facebook,

934 F.3d 53 (2d Cir. 2019) . . . . . . . . . . . . . . . . . . . . . 4, 5

Gonzalez v. Google LLC,

2 F. 4th 871 (9th Cir. 2021) . . . . . . . . . . . . . . . 2, 4, 5, 18

Malwarebytes, Inc. v.

Enigma Software Group USA, LLC,

141 S. Ct. 13 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

Stratton Oakmont v. Prodigy Servs. Co.,

1995 N.Y. Misc. LEXIS229 (N.Y. Sup. Ct.

May 24, 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statutes

18 U.S.C. § 2333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

47 U.S.C. § 230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Justice Against Sponsors of Terrorism Act (JASTA),

Pub.L. No. 144-222, 130 Stat. 852 (2016) . . . . . . . . . 18

Title VI, Civil Rights Act of 1964 . . . . . . . . . . . . . . . . . . . 9

iii

Page

Executive Materials

Exec. Order No. 13899, 84 Fed. Reg. 68779 (Dec.

11, 2019), at https://w w w.federalregister.

g ov/do c u ment s / 2 019 / 1 2 / 16 / 2 019 - 2 7 217/

combating-anti-semitism . . . . . . . . . . . . . . . . . . . . . . . 9

Fe d e r a l Bu r e a u of I n ve s t i g a t ion , Ha t e

Crime Statistics 2020, https://crime-dataexplorer.fr.cloud.gov/pages/explorer/crime/

hate-crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

U.S. Department of Homeland Security, Summary of

Terrorism Threat to the United States, National

Terrorism Advisory System Bulletin, Nov.

30, 2022, https://www.dhs.gov/ntas/advisory/

national-terrorism-advisory-system-bulletinnovember-30-2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

News Articles

A nd r e w Lapi n /J TA , Pr o -Pa l e s tini a n

Demonstrators Attack Jews at LA Restaurant,

The Jerusalem Post, May 20, 2021, https://

w w w.jp ost .com /d i a sp or a /a nt i sem it i sm /

pro -pa le st i n i a n- demonst r at or s - at t a ckjews-at-la-restaurant-668598 . . . . . . . . . . . . . . . . . . 15

Associated Press, Jersey City Kosher Market

Attack was ‘Fueled’ by Anti-Semitism ,

St a t e’s AG Says, Fox New s , Dec . 1 2 ,

2019, https://w w w.foxnews.com/us/jerseycity-kosher-market-anti-semitism . . . . . . . . . . . . . . 14

iv

Page

Carly Ortiz-Lytle, New York State Legislator

Shares Image Erasing Israel from the

Map, Washington Examiner, May 13, 2021,

https://www.washingtonexaminer.com/news/

new-york-state-leg islator-shares-imageerasing-israel-from-map . . . . . . . . . . . . . . . . . . . . . . . 9

Charedi Man Stabbed in Monsey Chanukah attack

Dies Aged 72, Jewish News, Mar. 30, 2020, https://

www.jewishnews.co.uk/charedi-man-stabbedin-monsey-chanukah-attack-dies-aged-72/ . . . . . . . 15

Craig Timberg, Elizabeth Dwoskin, Tony Romm &

Andrew Ba Tran, Two Years After #Pizzagate

Showed Dangers of Hateful Conspiracies,

They’re Still Rampant on YouTube, The

Washington Post, Dec. 10, 2018, https://www.

washingtonpost.com/business/technology/

hateful- conspiracies-thr ive- on-youtubedespite-pledge-to-clean-up-problematicvideos/2018/12/10/625730a8-f3f8-11e8-9240e8028a62c722_story.html . . . . . . . . . . . . . . . . . . . . . . 17

David M. Halbfinger, Israeli Army’s Idea

Lab Aims at a New Target: Saving Lives,

N.Y. Times, May 7, 2020, https://w w w.

nytimes.com/2020/05/07/world/middleeast/

c o r o n a v i r u s - i s r a e l . ht m l?s m i d=t w nytimes&smtyp=cur . . . . . . . . . . . . . . . . . . . . . . . . . 10

v

Page

Frank Camp, NYT Tweet: Israel’s Defense Ministry

‘Known For Pioneering . . . Ways To Kill People’

Now Helping In Fight Against COVID-19, The

Daily Wire, May 11, 2020, https://www.dailywire.

com/news/nyt-tweet-israels-defense-ministryknown-for-pioneering-ways-to-kill-people-nowhelping-in-fight-against-covid-19 . . . . . . . . . . . . . . . 10

Jacob Magid & JTA, ADL: ‘Dangerous and Drastic

Surge’ in Antisemitism in US Linked to Gaza

Violence, The Times of Israel, May 21, 2021,

https://www.timesofisrael.com/adl-dangerousand-drastic-surge-in-antisemitism-in-us-linked

-to-gaza-violence/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Joe Atmonavage & Blake Nelson, Jersey City

Shooters had Massive Bomb that Could

Have Killed People 500 Yards Away, Feds

Say, NJ.com, Jan. 13, 2020, https://w w w.

nj.com /news/2020/01/jersey-city-kosherma rket - shoot ers-pla nned- other-att ackon-jewish-center-feds-say.html . . . . . . . . . . . . . . . . . 14

Josh Kaplan, FBI Director Warns that America’s

Jews ‘Desperately’ Need Support, The Jewish

Chronicle, Nov. 20, 2022, https://www.thejc.

com/news/world/f bi-director-warns-thatamericas-jews-desperately-need-support1lciKDv3Cg9dhG6vt9Ro3t . . . . . . . . . . . . . . . . . . . . . 7

vi

Page

Melissa Weiss, Biden Admin ‘Enthusiastically

Em b r a c e s’ Fu l l IHR A D e f i n i t i o n of

Antisemitism, Jewish Insider, Mar. 1, 2021,

https://jewishinsider.com/2021/03/tony-blinkenbiden-ihra-definition-antisemitism/ . . . . . . . . . . . . . . 9

R ay S a nchez & St el l a Cha n, Ca lifo r ni a

Synagogue Shooter Sentenced to Life in

Prison Without the Possibility of Parole,

CNN, Sept. 30, 2 021, https://w w w.cnn.

com/2021/09/30/us/poway-synagogue-shootersentencing/index.html#:~:text=deadly%20

2019%20shooting%20at%20a%20Southern

%20California%20synagogue . . . . . . . . . . . . . . . . . . 14

TOI Staff & Michael Machosky, Yelling ‘All

Jews Must Die,’ Gunman Opens Fire in

Pittsburgh Synagogue, The Times of Israel,

Oct. 27, 2018, https://w w w.timesofisrael.

com /4-reported-dead-several-injured-inshooting-at-pittsburg-synagogue/. . . . . . . . . . . . . . . 16

TOI Staff, ‘Thought I was Going to Die’: NY

Jewish Man Details Assault by Pro-Palestine

Mob, The Times of Israel, May 22, 2021,

https://www.timesofisrael.com/i-thought-i-wasgoing-to-die-jewish-man-recounts-assaultby-pro-palestine-mob . . . . . . . . . . . . . . . . . . . . . . . . . 16

vii

Page

Miscellaneous

ADL Center for Technology & Society, Online Hate

and Harassment, The American Experience

2021, Mar. 2021, https://www.adl.org/onlinehate-2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Amadeu Antonio Foundation, Expo Foundation and

HOPE Not Hate, Antisemitism in the Digital

Age, Online Antisemitic Hate, Holocaust

Denial, Conspiracy Ideologies and Terrorism

in Europe, Oct. 2021, https://hopenothate.

org.uk/wp-content/uploads/2021/10/googlereport-2021-10-v3.pdf . . . . . . . . . . . . . . . . . . . . . . 11, 12

A mer ican Jew ish Comm itt ee, State

o f A n t i s e m i t i s m i n A m e r i c a 2 0 21,

ht tp s: // w w w. ajc .org /sit e s /defau lt /f i le s /

pdf /2022 -10/A ntisemitism-Repor t-2021_

Reader-10.22.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Anti-Defamation League, 2021 Online Antisemitism

Report Card, May 3, 2022, https://www.adl.org/

resources/reports/2021-online-antisemitismreport-card . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9, 10

Anti-Defamation League, Audit of Antisemitic

Incidents 2019, https://www.adl.org/audit2019 . . . . 14

viii

Page

Anti-Defamation League, Audit of Antisemitic

Incidents 2021, https://www.adl.org/audit2021 . . . . . 7

Center for Countering Digital Hate (CCDH),

Failure to Protect, How Tech Giants Fail to

Act on User Reports of Antisemitism, https://

counterhate.com/wp-content/uploads/2022/05/

Failure-to-Protect.pdf . . . . . . . . . . . . . . . . . . . . . . 8, 12

International Holocaust Remembrance Alliance,

What is Antisemitism? Non-Legally Binding

Working Definition of Antisemitism, https://

holoc au st remembr a nce.com /re sou rce s /

work i ng- def i n it ions - cha r t er s / work i ngdefinition-antisemitism . . . . . . . . . . . . . . . . . . . . . . . . . 9

1

INTEREST OF AMICI CURIAE1

Amici are the Zionist Organization of America (ZOA)

and the Rieders Foundation. The ZOA is the oldest

pro-Israel organization in the United States whose

leaders have included U.S. Supreme Court Justice Louis

Brandeis. Established in 1897, the ZOA played a key role

in mobilizing support for the establishment of the State of

Israel. Since then, the ZOA has been on the front lines of

Jewish activism, defending Israel and the Jewish people,

seeking justice for American victims of international

terrorism, and fighting antisemitism in all its forms.

The Rieders Foundation, established more than

30 years ago as a non-profit organization, is dedicated

to enhancing Jewish culture and the civil rights of the

Jewish people. Its Hatzilu division provides financial

aid directly to needy members of the Jewish community.

The Rieders Foundation combats all forms of anti-Jewish

discrimination through litigation, including when the

discrimination is expressed as anti-Israelism.

Amici have joined together to file this brief because

they share a commitment to protecting the safety and

security of the Jewish people.

SUMMARY OF ARGUMENT

Interactive computer service providers (such as

Google and YouTube) should only be immune from liability

No counsel for a party authored this brief in whole or in

part, and no person other than amici curiae, their respective

members, or their counsel made a monetary contribution to the

brief’s preparation and submission. The parties filed blanket

consents to the timely filing of any amici curiae briefs.

1

2

under Section 230(c)(1) of the Communications Decency

Act when they engage in traditional editorial functions

(such as deciding whether to display or withdraw content),

not when they target specific users and recommend and

direct them to new content that helps fan the flames

of hatred and violence against the Jewish community.

A limited interpretation of Section 230(c)(1) would be

consistent with its text and would serve crucial public

policy concerns, including helping to stem the soaring

problem of antisemitism and deter violent attacks and

terrorism against Jews.

ARGUMENT

I.

The Text of § 230(c)(1) Does Not Support Immunizing

Computer Service Providers When They Make

Targeted Recommendations of Content to Their

Users

Congress enacted Section 230 of the Communications

Decency Act in 1996, giving social media platforms

immunity from some civil and criminal claims. 47 U.S.C.

§ 230. Relevant here, Section 230(c)(1) provides: “No

provider or user of an interactive computer service shall

be treated as the publisher or speaker of any information

provided by another information content provider.”

The law’s enactment was prompted by a decision of

a New York state court (Stratton Oakmont v. Prodigy

Servs. Co., 1995 N.Y. Misc. LEXIS 229 (N.Y. Sup. Ct. May

24, 1995)), which held an internet service provider legally

responsible for a defamatory message posted to one of its

message boards. Gonzalez v. Google LLC, 2 F. 4th 871,

887 (9th Cir. 2021).

3

As Justice Thomas recently wrote in a statement

respecting the denial of certiorari in Malwarebytes, Inc.

v. Enigma Software Group USA, LLC, 141 S. Ct. 13

(2020), “the text of § 230(c)(1) grants immunity only from

‘publisher’ or ‘speaker’ liability.” Id. at 15. Yet courts

have strayed from “the most natural reading of the text

by giving Internet companies immunity for their own

content.” Id. at 16.

Of particular concern is the conduct of website

operators such as YouTube, a social media platform owned

and operated by Google, which is used by billions of people

to post, share, view and comment on videos on a wide range

of topics – including videos that promote demonizing lies

about Jews (e.g., that Jews started World War II, Jews

were responsible for the September 11 terrorist attacks,

and Jewish Americans are disloyal to their country),

videos that deny or minimize the Holocaust, and videos

that fuel hatred of and violence and terrorism against

Jews.

These website operators do not simply post these

videos – conduct for which they would be immunized from

publisher liability under § 230. They collect extensive

data about a user, including the user’s prior social media

posts, “friends,” and viewing habits, to determine what

else the user would be receptive to viewing. Based on that

assessment, the website operators communicate their own

messages to the user, recommending new content for the

user to view.

Several judges who have rejected that § 230’s text

supports sweeping immunity for website operators have

explained in detail how these targeted recommendations

4

work. See Force v. Facebook, 934 F.3d 53, 76-89 (2d Cir.

2019), cert. denied, 140 S. Ct. 2761 (2020) (Katzmann,

J., concurring in part and dissenting in part); Gonzalez,

2 F.4th at 913-18, 918-38 (9th Cir. 2021) (Berzon, J.,

concurring, and Gould, J., concurring in part and

dissenting in part).

Social media operators do not make just one or two

recommendations to their users; they “dominate the

user experience.” Gonzalez, 2 F. 4th at 917. As Judge

Katzmann of the Second Circuit stated, “The cumulative

effect of recommending several friends, or several groups

or events, has an impact greater than the sum of each

suggestion. It envelops the user, immersing her in an

entire universe filled with people, ideas, and events she

may never have discovered on her own.” Force, 934 F.3d

at 62-63.

Judge Katzmann provided a particularly detailed

analysis of how computer service providers operate, and

the dangers posed by affording them sweeping immunity

under § 230. See id. at 76-89. The Judge delivered an

ominous message about how social media has evolved

since the law’s enactment, way beyond what Congress

could have envisioned:

Congress could not have anticipated the

pernicious spread of hate and violence that

the rise of social media likely has since

fomented [since § 230’s enactment]. Nor could

Congress have divined the role that social

media providers themselves would play in

this tale. Mounting evidence suggests that

providers designed their algorithms to drive

5

users toward content and people the users

agreed with – and that they have done it too

well, nudging susceptible souls ever further

down dark paths.

Id. at 88 (emphasis added).

Website operators like Google and YouTube have

no incentive to stop affirmatively recommending and

directing content to their users, even though they know

that their actions may encourage users’ hatred of Jews

and incite violence and terrorism against Jews. Indeed,

website operators are financially motivated to recommend

as much content as possible. The longer a user stays on

the website’s platform, the more the website operator

earns in advertising revenues. See Gonzalez, 2 F. 4th

at 936 (Gould, J., concurring in part and dissenting in

part) (“It is not realistic to anticipate that social media

companies will self-police adequately in the face of their

incentives to maximize profits by maximizing advertising

revenues, which means increasing the eyeballs directed

to their websites.”).

Joining “the growing chorus of voices” that do not

support expanding immunity to website operators under

§ 230 when they recommend and direct content to their

users (Gonzalez, 2 F. 4th at 913), Judge Berzon of the Ninth

Circuit understood that these targeted recommendations

“are well outside the scope of traditional publication.” Id.

at 914. Justice Thomas recognized that extending the

immunity under § 230 “beyond the natural reading of the

text can have serious consequences.” Malwarebytes, 141

S. Ct. at 13.

6

This brief focuses on some of the many serious

consequences our nation faces and will continue to face if

computer service providers are immunized from liability

when they knowingly and affirmatively steer their users

to content that foments hatred of Jews and encourages

violence and terrorism against them. The safety and

security of an already targeted Jewish community will

be further imperiled, and the rights of terror victims and

their families will be seriously undermined, none of which

can be what Congress intended when it enacted § 230.

II. Affording Sweeping Immunity to Computer Service

Providers Under § 230(c)(1) for Making Targeted

Recommendations of Information to Users Would

Foment Already Soaring Antisemitism

Antisemitism, the world’s oldest hatred, is climbing in

the United States and around the world. The hate crime

statistics that the Federal Bureau of Investigation (FBI)

collected for 2020 (the most recent year reported by the

FBI) reveal that although Jews comprise no more than two

percent of the population in the United States, they are

the most targeted religious group in this country. Close

to 60 percent of the religiously motivated hate crimes

are against Jews. See Federal Bureau of Investigation,

Hate Crime Statistics 2020, https://crime-data-explorer.

fr.cloud.gov/pages/explorer/crime/hate-crime.

When FBI Director Christopher Wray testified

before the House Committee on Homeland Security on

November 15, 2022, he stated, “Antisemitism and the

violence that comes out of it is a persistent and present

fact.” Noting that the FBI would be making combating

antisemitism a “national priority” after recent incidents

7

of violence against Jews, Director Wray said that

America’s Jewish community “deserves and desperately

needs our support because it’s getting hit from all sides.”

Josh Kaplan, FBI Director Warns that America’s Jews

‘Desperately’ Need Support, The Jewish Chronicle, Nov.

20, 2022, https://www.thejc.com/news/world/fbi-directorwarns-that-americas-jews-desperately-need-support1lciKDv3Cg9dhG6vt9Ro3t.

Every year, the Anti-Defamation League (ADL)

tracks incidents of antisemitic harassment, vandalism and

assault in the U.S., and publishes this information in an

Annual Audit of Antisemitic Incidents. In its latest audit,

for 2021, the ADL recorded 2,717 antisemitic incidents

across the United States, a 34 percent increase from

2020, and a record high since the ADL began tracking

antisemitic incidents in 1979. See Anti-Defamation

League, Audit of Antisemitic Incidents 2021, https://www.

adl.org/audit2021. Antisemitic incidents occurred in every

state of the U.S., as well as in the District of Columbia. Id.

Hatred of Jews is expressed in numerous ways,

including on social media. As the ADL aptly put it in

a recent report on online antisemitism, social media

platforms are being used “to put a new spin on an ancient

form of hatred.” Anti-Defamation League, 2021 Online

Antisemitism Report Card, May 3, 2022, https://www.adl.

org/resources/reports/2021-online-antisemitism-reportcard, at 4.

Antisemitic conspiracy theories abound on social

media – that Jews possess extraordinary power, and

they manipulate and control world governments, political

figures, and financial and other institutions. Social media

8

conspiracy posts claim that Jews planned the 9/11 terrorist

attacks, that Jews were behind the Covid pandemic, and

that Jews are to blame for allegedly dangerous vaccines.

See id. at 3-8. See also Center for Countering Digital Hate

(CCDH), Failure to Protect, How Tech Giants Fail to Act

on User Reports of Antisemitism, https://counterhate.

com/wp-content/uploads/2022/05/Failure-to-Protect.

pdf., at 7-19.

Jews are falsely depicted on social media as disloyal,

caring more about Jewish interests and the State of Israel

than the country in which they live. They are also falsely

portrayed as greedy, and as liars and cheaters. ADL 2021

Online Antisemitism Report Card at 5.

Denying or minimizing the scope of the Holocaust is

a common manifestation of antisemitism on social media.

Id. at 5-6. According to one 2021 study, YouTube is hosting

five videos with over 800,000 views that deny aspects of

the Holocaust or claim that Jews made a “declaration of

war” on Nazi Germany. CCDH Report at 12. The study

also noted Twitter posts with the “well-known antisemitic

hashtag ‘#holohoax’” and claims that Anne Frank’s diary

was fabricated. Id.

Demonizing Israel and denying the right of the

Jewish people to live as a nation state in their homeland

– a right that is afforded to other groups of people – are

manifestations of antisemitism 2 that are also posted

In 2016, the International Holocaust Remembrance

Alliance (IHRA) – an intergovernmental organization comprised

of governments (over 35 countries around the world are members)

and experts committed to combating Holocaust denial and

antisemitism – adopted a non-legally binding working definition

2

9

on social media (see ADL 2021 Online Antisemitism

Report Card at 6), including by social media users who

should reasonably be expected to know better. For

example, a member of the New York State Assembly

shared a map of the Middle East on Twitter that failed

to include Israel. The image was accompanied by the

hashtag “#Free Palestine,” a phrase that is commonly

used by Israel-bashers and antisemites to call for Israel’s

destruction. The Assemblymember deleted the post

after it was widely criticized. Carly Ortiz-Lytle, New

York State Legislator Shares Image Erasing Israel from

the Map, Washington Examiner, May 13, 2021, https://

www.washingtonexaminer.com/news/new-york-statelegislator-shares-image-erasing-israel-from-map.

As another example, in May 2020, The New York

Times published an article which focused on Israel’s

of antisemitism. The definition includes a core description of

antisemitism, as well as contemporary examples of antisemitism

that include examples relating to Israel. See International

Holocaust Remembrance Alliance, What is Antisemitism? NonLegally Binding Working Definition of Antisemitism, https://

holocaustremembrance.com/resources/working-definitionscharters/working-definition-antisemitism. The IHRA working

definition has gained international acceptance, including by

the United States government. See Exec. Order No. 13899, 84

Fed. Reg. 68779 (Dec. 11, 2019), at https://www.federalregister.

gov/documents/2019/12/16/2019-27217/combating-anti-semitism

(requiring, inter alia, that all executive departments and

agencies charged with enforcing Title VI of the Civil Rights

Act consider the IHRA definition, including the contemporary

examples of antisemitism). See also Melissa Weiss, Biden

Admin ‘Enthusiastically Embraces’ Full IHRA Definition of

Antisemitism, Jewish Insider, Mar. 1, 2021, https://jewishinsider.

com/2021/03/tony-blinken-biden-ihra-definition-antisemitism/.

10

dedication to fighting Covid, by quickly assembling its

national resources to set up a task force that included

scientists, doctors, engineers, government officials and

military officers. David M. Halbfinger, Israeli Army’s

Idea Lab Aims at a New Target: Saving Lives, N.Y.

Times, May 7, 2020, https://www.nytimes.com/2020/05/07/

world/middleeast/coronavirus-israel.html?smid=twnytimes&smtyp=cur. Though a praiseworthy effort on

Israel’s part, the Times demonized the Jewish state when

it promoted the article on Twitter, writing: “The Israeli

Defense Ministry’s research-and-development arm is best

known for pioneering cutting-edge ways to kill people

and blow things up. Now it is turning to saving lives.”

See Frank Camp, NYT Tweet: Israel’s Defense Ministry

‘Known For Pioneering . . . Ways To Kill People’ Now

Helping In Fight Against COVID-19, The Daily Wire,

May 11, 2020, https://www.dailywire.com/news/nyt-tweetisraels-defense-ministry-known-for-pioneering-ways-tokill-people-now-helping-in-fight-against-covid-19.

Young people are particularly susceptible to absorbing

the many forms of antisemitism they are exposed to

and encouraged to view on social media. Social media

platforms “repackage” antisemitism for young people,

using memes, emojis, and games. ADL 2021 Online

Antisemitism Report Card at 7. For example, Twitch,

a social media platform, streamed a modified version of

a popular game called Pokemon, but it was reframed as

Pokemon Clover, a game that included hateful, antisemitic

tropes. Id. at 7-8.

Several recent research reports and surveys relating

to antisemitism in the age of social media exemplify

the urgency of making social media platforms legally

11

accountable under § 230(c)(1) when they knowingly and

deliberately steer their users to content that fuels hatred

of and violence against Jews. One collaborative research

report was made possible with grant funding from

Google’s philanthropic arm, Google.org. Amadeu Antonio

Foundation, Expo Foundation and HOPE Not Hate,

Antisemitism in the Digital Age, Online Antisemitic

Hate, Holocaust Denial, Conspiracy Ideologies and

Terrorism in Europe, Oct. 2021, https://hopenothate.org.

uk/wp-content/uploads/2021/10/google-report-2021-10-v3.

pdf.

After examining antisemitism across nine social

media platforms or websites, including Facebook and

YouTube, this report described what it characterized as

its “most worrying finding”:

[W]e found antisemitism on every platform we

explored. While the amount of different types

of antisemitism varies between platforms,

it remains possible to locate all forms and

extremes of antisemitism on all platforms. . . .

[M]ajor tech platforms have created online

spaces where antisemitism has been allowed

to flourish with tragic and long-lasting

effects, not least terrorism against Jewish

communities.

Id. at 10-11 (emphasis added).

Of particular relevance to the present case, the

report focused on the reach of YouTube, which “currently

claims to have over 2 billion active monthly users and to

upload 500 hours of content every minute, with as many

12

as 81% of US adults reporting that they use the website.”

Id. at 69. In addition to emphasizing the sheer volume of

antisemitic content on YouTube, the report noted with

concern that the platform “amplifies the effect of extremist

content and effectively radicalises its users.” Id.

A second report, also issued in 2021, demonstrates

that social media companies are failing to act in response

to anti-Jewish content on their platforms, even if the

content is specifically reported and flagged. CCDH

Report at 4. According to these researchers, social media

platforms “have become safe places to spread racism and

propaganda against Jews.” Id.

For three consecutive years, the ADL has conducted

a nationally representative survey of Americans on the

subject of online hate and harassment. In its most recent

report, the ADL noted that major technology companies

had announced throughout 2020 and 2021 that they were

taking “unprecedented action” against the longstanding

hate, harassment, misinformation and conspiracy

theories on their social media platforms. ADL Center for

Technology & Society, Online Hate and Harassment, The

American Experience 2021, Mar. 2021, https://www.adl.

org/online-hate-2021, at 6. Yet this “blitz of self-regulation

for technology companies” failed to yield positive results:

“[T]he level of online hate and harassment reported by

users barely shifted when compared to reports from a year

ago.” Id. Thirty-six percent of the Jewish respondents

to the survey experienced online harassment, more than

the previous year (33%). Id.

Survey results issued in 2021 by the American Jewish

Committee (AJC) also revealed worrisome findings.

13

The AJC conducted one of the largest-ever surveys of

American Jews and the general public in the United

States regarding their perceptions of and experiences

with antisemitism. American Jewish Committee, State

of Antisemitism in America 2021, https://www.ajc.org/

sites/default/files/pdf/2022-10/Antisemitism-Report-2021_

Reader-10.22.pdf. The survey confirmed that hatred of

Jews continues to be a serious problem in the United

States. Approximately one in four American Jews (24%

of the respondents) were targets of antisemitism over the

previous 12 months. Id. at 5. Twelve percent said that

they had been targets of antisemitism online or on social

media, and seven percent stated that it had happened

more than once. Id.

The impact is alarming and should be intolerable to

Jews and non-Jews alike in this country: Approximately

four out of every 10 American Jews (39%) have changed

their behavior out of fear of antisemitism. Id. at 20.

Twenty-five percent have avoided posting content online

that would enable others to identify them as Jews or reveal

their views on Jewish issues. Id. Twenty-two percent

say they have avoided wearing, carrying, or displaying

anything that might help others identify them as Jewish.

Id. Seventeen percent have avoided certain places, events,

or situations based on concerns about their safety or

comfort as Jews. Id.

Fear for their physical safety is warranted based

on the number of recent brutal and deadly attacks that

specifically targeted Jews. Three major incidents of lethal

violence occurred in 2019 alone. In April of that year,

an antisemite entered a crowded synagogue in Poway,

California, on the last day of Passover, killing a woman

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who was there to honor her late mother, and injuring three

others, including the rabbi and an eight-year-old girl.

Anti-Defamation League, Audit of Antisemitic Incidents

2019, https://www.adl.org/audit2019. See also Ray

Sanchez & Stella Chan, California Synagogue Shooter

Sentenced to Life in Prison Without the Possibility

of Parole, CNN, Sept. 30, 2021, https://w w w.cnn.

com/2021/09/30/us/poway-synagogue-shooter-sentencing/

index.html#:~:text=deadly%202019%20shooting%20

at%20a%20Southern%20California%20synagogue.

In December 2019, two individuals (at least one of

whom was associated with an antisemitic Black Hebrew

Israelite sect), stormed a kosher market in Jersey City,

New Jersey, wielding five guns, including an AR-15 style

rifle. They killed three people in the store (and gunned

down a police officer in a cemetery): a woman who owned

the store with her husband, a rabbinical student who was

shopping there, and a store employee. Associated Press,

Jersey City Kosher Market Attack was ‘Fueled’ by AntiSemitism, State’s AG Says, Fox News, Dec. 12, 2019,

https://www.foxnews.com/us/jersey-city-kosher-marketanti-semitism. Authorities said that the perpetrators

were planning “greater acts of mayhem” in New Jersey’s

Jewish community. Joe Atmonavage & Blake Nelson,

Jersey City Shooters had Massive Bomb that Could Have

Killed People 500 Yards Away, Feds Say, NJ.com, Jan.

13, 2020, https://www.nj.com/news/2020/01/jersey-citykosher-market-shooters-planned-other-attack-on-jewishcenter-feds-say.html.

Also in December 2019, an antisemite armed with

a knife or machete entered a rabbi’s home during a

Chanukah celebration in Monsey, New York, swinging the

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weapon wildly at people. One person died, and several

others were injured. Charedi Man Stabbed in Monsey

Chanukah attack Dies Aged 72, Jewish News, Mar.

30, 2020, https://www.jewishnews.co.uk/charedi-manstabbed-in-monsey-chanukah-attack-dies-aged-72/.

In May 2021 – when Israel was fighting a defensive

war against Hamas terrorists in Gaza, who launched

over 4000 rockets into Israel and targeted innocent

Israeli civilians – antisemitism surged, including on social

media. During that time, the ADL documented social

media posts praising Hitler, promoting false antisemitic

stereotypes about Jewish control, as well as calls for

Israel’s destruction, including posts that stated: “GAS

THE KIKES RACE WAR NOW.” Jacob Magid & JTA,

ADL: ‘Dangerous and Drastic Surge’ in Antisemitism in

US Linked to Gaza Violence, The Times of Israel, May

21, 2021, https://www.timesofisrael.com/adl-dangerousand-drastic-surge-in-antisemitism-in-us-linked-to-gazaviolence/.

Also during that period, Jews were brutally and

senselessly assaulted in cities across the U.S. In Los

Angeles, for example, a group of men waving Palestinian

flags attacked diners seated outside at a sushi restaurant,

throwing punches, bottles and other objects. The

attackers used antisemitic language to determine who

was Jewish. Andrew Lapin/JTA, Pro-Palestinian

Demonstrators Attack Jews at LA Restaurant, The

Jerusalem Post, May 20, 2021, https://www.jpost.com/

diaspora/antisemitism/pro-palestinian-demonstratorsattack-jews-at-la-restaurant-668598.

In New York City, a man who was observably Jewish

– he was wearing a yarmulke – was violently attacked by

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a mob of people as he was walking to a rally to support the

State of Israel. The mob surrounded him, punched and

kicked him with weapons all over his body, and sprayed

pepper spray or mace in his eyes. As they attacked him,

the mob yelled antisemitic words such as, “You filthy Jew.

We’re going to f--king kill you. Go back to Israel. Hamas

is going to kill you.” The Jewish man thankfully survived,

but later said, “I was literally just in a fetal position,

trying to guard my head and face, literally just trying to

make it out of there alive. I thought I was going to die.

I thought I was really going to die.” TOI Staff, ‘Thought

I was Going to Die’: NY Jewish Man Details Assault by

Pro-Palestine Mob, The Times of Israel, May 22, 2021,

https://www.timesofisrael.com/i-thought-i-was-going-todie-jewish-man-recounts-assault-by-pro-palestine-mob/.

The deadliest attack on Jews in the history of

the United States occurred on October 27, 2018. An

antisemite entered the Tree of Life Synagogue in

Pittsburgh, Pennsylvania, armed with a rifle and two

handguns, during a circumcision ceremony. During his

shooting spree, the perpetrator reportedly yelled, “All

Jews must die!” Eleven people were killed and at least

six were injured. TOI Staff & Michael Machosky, Yelling

‘All Jews Must Die,’ Gunman Opens Fire in Pittsburgh

Synagogue, The Times of Israel, Oct. 27, 2018, https://

www.timesofisrael.com/4-reported-dead-several-injuredin-shooting-at-pittsburg-synagogue/.

The perpetrator of this deadly rampage against Jews

reportedly used social media, his Gab account, to link to

YouTube videos 71 times. The videos reportedly included

neo-Nazi propaganda, clips that portrayed Black people as

violent thugs, and videos calling Jewish people “satanic.”

17

Craig Timberg, Elizabeth Dwoskin, Tony Romm &

Andrew Ba Tran, Two Years After #Pizzagate Showed

Dangers of Hateful Conspiracies, They’re Still Rampant

on YouTube, The Washington Post, Dec. 10, 2018, https://

www.washingtonpost.com/business/technology/hatefulconspiracies-thrive-on-youtube-despite-pledge-to-cleanup-problematic-videos/2018/12/10/625730a8-f3f8-11e89240-e8028a62c722_story.html.

All these studies, and the examples of all the vicious

unprovoked physical violence that Jews have been

enduring, demonstrate that hatred of Jews and brutal,

deadly violence and terrorism against Jews are serious

problems in the United States, that social media platforms

are playing a major role in fomenting these problems, and

that social media companies are not doing enough to tackle

the problems. While § 230 plainly immunizes social media

companies from publishing hateful antisemitic content,

the law should not protect them when they actively

incite hatred, violence and terrorism against Jews, by

recommending antisemitic content to their users that the

users themselves did not seek out. These companies can

and must be held accountable for knowingly steering their

users toward extremist and bigoted views and behavior

that includes lethal violence and terrorism against Jews.

III. A f f o r d i n g S w e e p i n g I m m u n i t y U n d e r

§ 230(c)(1) for Making Targeted Recommendations

of Information to Users Would Undermine the

Legal Protections Afforded to American Victims

of International Terrorism

The Anti-Terrorism Act (ATA), 18 U.S.C. § 2333,

allows United States nationals to recover damages for

18

injuries suffered “by reason of an act of international

terrorism.” In 2016, Congress amended and broadened

the scope of liability under the ATA by enacting the Justice

Against Sponsors of Terrorism Act (JASTA), Pub. L. No.

144-222, 130 Stat. 852 (2016). Now, “any person who aids

and abets, by knowingly providing substantial assistance,

or who conspires with the person who committed” an act

of international terrorism is also subject to civil liability.

18 U.S.C. § 2333(d)(2).

In contrast to the “modest” original goal of Section

230 (Gonzalez, 2 F.4th at 887), Congress made it clear

that by enacting JASTA, Congress intended to provide

American victims of international terrorism with “the

broadest possible basis, consistent with the Constitution of

the United States, to seek relief” against perpetrators of

international terrorism. Id. at 889 (emphasis in original).

That includes persons, entities and countries that “have

provided material support, directly or indirectly, to

foreign organizations or persons that engage in terrorist

activities against the United States.” JASTA, § 2(b).

It is crucial that these anti-terrorism laws be fully and

vigorously enforced, because America’s war on terrorism,

which began in 2001 after the September 11 terrorist

attacks, is far from over. In a recently issued bulletin,

the U.S. Department of Homeland Security (DHS) made

it clear that our country continues to face serious terrorist

threats that are fomented by social media:

The United States remains in a heightened

threat environment. Lone offenders and small

groups motivated by a range of ideological

beliefs and/or personal grievances continue

19

to pose a persistent and lethal threat to the

Homeland. Domestic actors and foreign

terrorist organizations continue to maintain a

visible presence online in attempts to motivate

supporters to conduct attacks in the Homeland.

U.S. Department of Homeland Security, Summary of

Terrorism Threat to the United States, National Terrorism

Advisory System Bulletin, Nov. 30, 2022, https://www.dhs.

gov/ntas/advisory/national-terrorism-advisory-systembulletin-november-30-2022. DHS specifically noted “the

enduring threat to faith-based communities,” and singled

out the Jewish community. Id.

Going beyond the plain text of § 230(c)(1) to afford

immunity to social media platforms when they knowingly

and recklessly recommend and direct specific content to

selected users that will radicalize them, incite them to

hate Jews, and encourage them to commit deadly violence

and terrorism against Jews, undermines our country’s

continuing war on terrorism. It also undermines the

enforceability and effectiveness of our anti-terrorism laws

which enable terror victims and their families to secure at

least some measure of justice from terrorist perpetrators,

and their aiders, abettors, and co-conspirators, for the

senseless death and devastation they all played a role in

causing.

It is already problematic that social media platforms

are afforded immunity from liability under § 230(c)(1) for

publishing the false and reprehensible anti-Jewish content

of others. This Court should not tolerate broadening that

immunity, well beyond the language of the law.

20

Social media platforms would not be left defenseless

if they were not afforded immunity for making targeted

recommendations of content to their users. They would

still have available to them the same defenses that other

non-immune defendants possess.

Particularly at this time of surging antisemitism and

alarming physical attacks on Jews, social media platforms

must be held accountable when they purposefully feed

extremist antisemitic content to users and push them

toward brutal and deadly violence and terrorism that

threaten the safety and security of the Jewish people.

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CONCLUSION

For the foregoing reasons, this Court should

interpret § 230(c)(1), consistent with the language of the

law, so that interactive computer service providers are

immune from liability when they engage in traditional

activities of publication, but not when they make targeted

recommendations of information provided by another

information content provider.

Respectfully submitted,

Susan B. Tuchman

Counsel of Record

Zionist Organization

of A merica

633 Third Avenue,

Suite 31-B

New York, NY 10017

(212) 481-1500

stuchman@zoa.org

Clifford A. Rieders

The Rieders Foundation

161 West Third Street

Williamsport, PA 17701

(570) 323-8711

Attorneys for Amici Curiae