Amicus Brief as to § 230(c)(1) in Gonzalez v. Google

(Note that this case is about immunity when Internet platforms provide access to material, not the separate question about immunity when Internet platforms block access to material.)

Here's the Summary of Argument:

An interactive computer service's automated recommendations qualify for statutory immunity under Section 230(c)(1). Congress enacted this policy choice in clear text, supported by powerful statutory context, including express findings and purposes that it wrote into the statute itself. And Congress did so in service of a national policy favoring free and open discourse on the still-developing internet—a policy that has proved enormously successful in the years since. This Court should resist Petitioners' invitation to impose sweeping changes on the Nation's internet policy, and instead leave any such changes—if they ever prove necessary—to Congress.

Section 230's text should decide this case. Section 230(c)(1) immunizes the user or provider of an "interactive computer service" from being "treated as the publisher or speaker" of information "provided by another information content provider." And, as Section 230(f)'s definitions make clear, Congress understood the term "interactive computer service" to include services that "filter," "screen," "pick, choose, analyze," "display, search, subset, organize," or "reorganize" third-party content. Automated recommendations perform exactly those functions, and are therefore within the express scope of Section 230's text.

Section 230(c)(1)'s use of the phrase "treated as the publisher or speaker" further confirms that Congress immunized distributors of third-party information from liability. At common law, a distributor of third-party information could be held liable only when the doctrine permitted the distributor to be treated as the publisher. As Petitioners and the United States agree, Congress understood and incorporated that common-law meaning of "treated as the publisher" into Section 230(c)(1). Given that a distributor cannot be "treated as the publisher" of certain third-party information, however, there is no alternative mechanism for holding the distributor liable based on the improper character of the information. Indeed, Congress enacted Section 230(c)(1) specifically to avoid the sweeping consequences that the common-law regime of knowledge-based distributor liability would inflict on the developing internet.

Section 230(c)(1)'s surrounding and subsequent statutory context bolsters this conclusion. Section 230(c)(1) provides the same protection to "user[s]" as to "provider[s]" of interactive computer services. Petitioners do not defend the position that users who like, retweet, or otherwise amplify third-party content should be held liable for the character of that content, but Section 230(c)(1)'s text renders that an inescapable consequence of their argument. The better inference is that Congress chose to protect a wide range of speech and speech-promoting conduct for providers and users of interactive computer services alike. In addition, other statutory enactments illustrate that Congress knew how to impose liability on distributors when it wanted to—such as in the Digital Millennium Copyright Act, for example, where Congress also wrote a detailed notice-and-takedown framework into the statute to ensure that distributors received adequate procedural protections as well.

Petitioners' and the United States' attempts to distinguish between mere automated recommendations (for which distributors purportedly could be liable) and the recommended content (for which they could not) find no support in the text. To the contrary, the text makes clear that even a bare automated recommendation constitutes "pick[ing]" or "choos[ing]" content, an activity expressly contemplated by Section 230. Moreover, to hold a distributor liable based in part upon the improper content of information created by a third party would conflict with the common-law meaning of the terms Congress chose.

Congress enacted Section 230(c)(1) to protect the continuing development of the internet and ensure that it would remain a national forum for the free exchange of ideas. This is a case where the statutory text successfully implements Congress's purposes by providing broad protections to automated recommendations of third-party information. But this Court need not guess at Congress's purposes here, as it might be reluctant to do in a different case, because Congress enacted its purposes into the statute itself. Those purposes are part of the statutory text like any other statutory text, and deserving of the respect this Court would give to any text that passed through bicameralism and presentment into law. If any changes to our Nation's statutory regulation of the internet are necessary, this Court should leave them to Congress.

I was delighted to sign on to this brief, both as a signatory and as one of the counsel, and to kibitz on strategizing and editing. But the bulk of the credit should go to Anupam Chander (Georgetown) and Edward Lee (Chicago Kent), who were the lead academic drafters, and to Michael Gottlieb, Aaron Nathan, Jonathan Patchen, Brandon Franklin, and Harris Mateen, all from Willkie Farr & Gallagher LLP, who were the pro bono lawyer drafters.

I should also personally tip my hat to Daphne Keller (Stanford), whose work opened my eyes to the § 230(f) argument, which I think is key to the case; § 230 expressly provides immunity from liability to "interactive computer service[s]" that include "access software provider[s]," which § 230(f) defines to include:

a provider of software (including client or server software), or enabling tools that do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.

This makes clear, I think, that § 230 generally protects not just software that hosts third party material, but also software tools that automatically select such material to recommend to users.

And here is the full list of amici:

• Enrique Armijo (Elon)
• Jane Bambauer (Arizona)
• Hannah Bloch-Wehba (Texas A&M)
• Stuart N. Brotman (Tennessee)
• Anupam Chander (Georgetown Law)
• Mailyn Fidler (Nebraska)
• Mike Godwin (noted longtime commentator and author)
• James Grimmelmann (Cornell)
• Gautam S. Hans (Cornell)
• Laura A. Heymann (William & Mary)
• Justin (Gus) Hurwitz (Nebraska)
• Kate Klonick (St. John's)
• Edward Lee (Chicago-Kent)
• David S. Levine (Elon)
• Geoffrey A. Manne (formerly Lewis & Clark, now Executive Director of the International Center for Law and Economics)
• Elizabeth L. Rosenblatt (Tulsa)
• Rebecca Tushnet (Harvard)
• John Villasenor (UCLA)
• Eugene Volokh (UCLA)