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.,

v.

GOOGLE LLC,

Petitioners,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE STATES OF TENNESSEE,

ALABAMA, ALASKA, ARKANSAS, CALIFORNIA,

COLORADO, CONNECTICUT, IDAHO, ILLINOIS,

INDIANA, KENTUCKY, LOUISIANA,

MASSACHUSETTS, MINNESOTA, MISSISSIPPI,

NEBRASKA, NEW HAMPSHIRE, NEW JERSEY,

NEW YORK, NORTH CAROLINA, OREGON,

RHODE ISLAND, SOUTH CAROLINA,

SOUTH DAKOTA, VERMONT, VIRGINIA, AND

THE DISTRICT OF COLUMBIA AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

JONATHAN SKRMETTI

Attorney General

State of Tennessee

J. MATTHEW RICE

Special Assistant to

the Solicitor General

ANDRÉE S. BLUMSTEIN

Solicitor General

Counsel of Record

GABRIEL KRIMM

Assistant

Solicitor General

Office of the Attorney General

P.O. Box 20207

Nashville, TN 37202

(615) 741-3492

andree.blumstein@ag.tn.gov

Counsel for Amicus Curiae State of Tennessee

i

TABLE OF CONTENTS

Table of Authorities .................................................... ii

Interest of Amici Curiae ............................................. 1

Summary of the Argument ........................................ 1

Argument .................................................................... 3

I.

This Court Presumes That Acts of Congress

Respect Traditional State Prerogatives. ............. 3

II. Lower Courts Have Misconstrued Section 230

and Displaced Broad Swaths of State Law. ........ 6

III. Due Respect for Federalism Supports a

Narrow View of “Publisher” Immunity That

Does Not Reach the Targeted Promotion of

Content. .............................................................. 10

Conclusion................................................................. 15

ii

TABLE OF AUTHORITIES

Cases

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) (per curiam)...................... 5

Alden v. Maine,

527 U.S. 706 (1999) ............................................... 3

Apex Hosiery Co. v. Leader,

310 U.S. 469 (1940) ............................................... 5

BFP v. Resol. Tr. Corp.,

511 U.S. 531 (1994) ............................................... 5

Bond v. United States,

564 U.S. 211 (2011) ............................................... 4

Bond v. United States,

572 U.S. 844 (2014) ....................................... 4, 5, 6

CBOCS West, Inc. v. Humphries,

553 U.S. 442 (2008) ............................................. 10

Cubby, Inc. v. CompuServe, Inc.,

776 F. Supp. 135 (S.D.N.Y. 1991) ....................... 11

Daniel v. Armslist, LLC,

926 N.W.2d 710 (Wis. 2019) ............................. 7, 8

Doe v. MySpace, Inc.,

528 F.3d 413 (5th Cir. 2008) ................................. 7

Fair Hous. Council of San Fernando Valley v.

Roommates.com, LLC, 521 F.3d 1157 (9th

Cir. 2008) (en banc) ............................................. 10

Force v. Facebook, Inc.,

934 F.3d 53 (2d Cir. 2019) .................. 6, 11, 13, 14

iii

FTC v. Bunte Bros.,

312 U.S. 349 (1941) ............................................... 5

Goddard v. Google, Inc.,

No. C 08-2738 JF (PVT), 2008 WL 5245490

(N.D. Cal. Dec. 17, 2008)................................... 7, 8

Gregory v. Ashcroft,

501 U.S. 452 (1991) ..................................... passim

Herrick v. Grindr, LLC,

306 F. Supp. 3d 579 (S.D.N.Y. 2018) .................... 7

Jane Doe No. 1 v. Backpage.com, LLC,

817 F.3d 12 (1st Cir. 2016) ............................. 6, 14

Jones v. Dirty World Ent. Recordings LLC,

755 F.3d 398 (6th Cir. 2014) ................................. 7

Jones v. United States,

529 U.S. 848 (2000) ............................................... 5

Kimzey v. Yelp Inc.,

21 F. Supp. 3d 1120 (W.D. Wash. 2014) ............... 7

Malwarebytes, Inc. v. Enigma Software Grp.

USA, LLC, 141 S. Ct. 13 (2020) ............................ 6

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ............................... 3

McDonnell v. United States,

579 U.S. 550 (2016) ............................................... 5

Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

Inc., 591 F.3d 250 (4th Cir. 2009) ......................... 7

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ............................................... 9

Palmer v. Com. of Mass.,

308 U.S. 79 (1939) ................................................. 5

iv

Perfect 10, Inc. v. CCBill LLC,

488 F.3d 1102 (9th Cir. 2007) ............................... 7

Shelby Cnty. v. Holder,

570 U.S. 529 (2013) ............................................... 4

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Eng’rs, 531 U.S. 159 (2001) .................... 5

Stokeling v. United States,

139 S. Ct. 544 (2019) ........................................... 10

Stratton Oakmont, Inc. v. Prodigy Services Co.,

No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct.

May 24, 1995) ...................................................... 11

United Auto., Aircraft & Agric. Implement

Workers of Am. v. Wisc. Emp. Rels. Bd.,

351 U.S. 266 (1956) ............................................... 5

United States v. Bass,

404 U.S. 336 (1971) ............................................... 5

United States v. Five Gambling Devices Labeled

in Part “Mills,” & Bearing Serial Nos. 593221, 346 U.S. 441 (1953) ....................................... 5

U.S. Forest Serv. v. Cowpasture River Pres. Ass’n,

140 S. Ct. 1837 (2020) ................................. 4, 5, 10

Universal Commc’n Sys., Inc. v. Lycos, Inc.,

478 F.3d 413 (1st Cir. 2007) ................................. 7

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) ....................................... 4, 5, 14

Zeran v. Am. Online, Inc.,

129 F.3d 327 (4th Cir. 1997) ................................. 6

v

Constitution and Statutes

U.S. Const. Art. I, § 8, cl. 3 ........................................ 15

U.S. Const. Art. VI, cl. 2 .............................................. 3

U.S. Const. amend. X .................................................. 3

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

Other Authorities

John Conyers, Jr., Class Action “Fairness”—A

Bad Deal for the States and Consumers, 40

Harv. J. on Legis. 493 (2003) ................................ 8

Gregory M. Dickinson, Rebooting Internet

Immunity, 89 Geo. Wash. L. Rev. 347

(2021) ....................................................... 11, 12, 14

Gregory M. Dickinson, The Internet Immunity

Escape Hatch, 47 BYU L. Rev. 1435 (2022) ..... 7, 8

Facebook, Social Media, Privacy, and the Use and

Abuse of Data: Joint Hearing Before the S.

Comm. on Com., Sci., & Transp. and the S.

Comm. on the Judiciary, S. Hrg. No. 683,

115th Cong., Tr. (Doc. J-115-40)......................... 12

Sang Ah Kim, Social Media Algorithms: Why You

See What You See, 2 Geo. L. Tech. Rev. 147

(2017) ............................................................. 12, 13

Coby Warren Logan, Federal Class Action Reform

Legislation: The “Unfair” Approach to

Addressing the Issues of Modern Mass Tort

Litigation, 40 Tort Trial & Ins. Prac. L.J.

1145 (2005) ............................................................ 9

vi

Agnieszka McPeak, Platform Immunity

Redefined, 62 Wm. & Mary L. Rev. 1557

(2021) ............................................................... 6, 11

Restatement (Second) of Torts (1977)....................... 10

Val Rigodon, Death by a Thousand Duck Bites in

a No-Man’s Land: Navigating Section 230’s

Scope and Impact in a Changing Internet and

World, 25 CUNY L. Rev. 311 (2022)......... 9, 11, 13

Gary T. Schwartz, Considering the Proper

Federal Role in American Tort Law, 38 Ariz.

L. Rev. 917 (1996). ................................................ 8

The Federalist No. 45 (J. Madison) (J. Cooke ed.

1961) ...................................................................... 3

The Federalist No. 51 (J. Madison) (J. Cooke ed.

1961) ...................................................................... 4

1 Rodney A. Smolla, Law of Defamation (2d ed.

2019) (Nov. 2022 Update) ..................................... 7

Roger Trangsrud, Federalism and Mass Tort

Litigation, 148 U. Pa. L. Rev. 2263 (2000) ....... 8, 9

INTEREST OF AMICI CURIAE

The States of Tennessee, Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Idaho, Illinois, Indiana, Kentucky, Louisiana, Massachusetts,

Minnesota, Mississippi, Nebraska, New Hampshire,

New Jersey, New York, North Carolina, Oregon,

Rhode Island, South Carolina, South Dakota, Vermont, Virginia, and the District of Columbia have a

significant interest in protecting their historic powers

from incursion by the federal government. 1 Since the

founding, our federal system has principally relied on

state law to compensate victims of wrongful conduct.

But the States’ ability to remedy internet-related

wrongs has been severely hampered by the judicial expansion of internet “publisher” immunity under Section 230 of the Communications Decency Act. What

was enacted as a narrow protection from defamation

liability has become an all-purpose license to exploit

and profit from harmful third-party conduct, with ordinary people in the amici States left to pay the price.

Amici thus urge this Court to reverse the decision below and adopt an interpretation of publisher immunity that preserves the States’ traditional authority to

allocate loss among private parties.

SUMMARY OF THE ARGUMENT

The federalism canon supports a narrow interpretation of Section 230’s “publisher” immunity.

1 No counsel for any party authored this brief, in whole or in part,

and no person or entity other than Amici contributed monetarily

to its preparation or submission.

2

I. This Court considers federalism when determining the scope of federal statutes. Recognizing that

Congress legislates against the backdrop of our federal

system, the Court typically allows only the clearest

textual commands to alter the balance of state and

federal power. This federalism-based interpretive

principle is deeply rooted in this Court’s jurisprudence

and is often invoked to preserve the States’ broad authority.

II. Current precedent fails to account for federalism when interpreting Section 230. Adopting an everexpanding view of what it means to “treat[]” an internet company as a “publisher” of third-party content,

lower courts have granted immunity beyond anything

Congress intended. This broad interpretation of Section 230 has resulted in the widespread preemption of

state laws and the concomitant erosion of traditional

state authority to allocate loss among private parties.

III. The Court should apply the federalism canon

to interpret Section 230 narrowly in this case. Congress intended the statute’s “publisher” immunity provision to provide only a limited carve-out for those who

operated like traditional publishers in what was

then—in 1996—a nascent internet. But internet companies now do far more than simply publish thirdparty content; they actively engage and interact with

their users through tailored content recommendations

and other sophisticated programming. The text of

Section 230 does not cover novel interactions like the

targeted promotion at issue here—much less in a clear

3

or obvious way. Accordingly, a straightforward application of the federalism canon weighs heavily in favor

of reversal.

ARGUMENT

I.

This Court Presumes That Acts of Congress

Respect Traditional State Prerogatives.

“As every schoolchild learns, our Constitution establishes a system of dual sovereignty” that divides

power “between the States and the Federal Government.” Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).

Under that system, the federal government wields

only the “enumerated powers” surrendered by the

States in the Constitution, M’Culloch v. Maryland, 17

U.S. (4 Wheat.) 316, 405 (1819), which are necessarily

“few and defined,” The Federalist No. 45, at 313 (J.

Madison) (J. Cooke ed. 1961).

The States, by contrast, retain “numerous and indefinite” powers that “extend to all the objects . . . concern[ing] the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity” of the country. Id.; see also U.S. Const. amend.

X (“reserv[ing] to the States [and] the people” all “powers not delegated” to the federal government or “prohibited” by the Constitution). Thus, while legitimate

acts of Congress are the “supreme Law of the Land,”

U.S. Const. Art. VI, cl.2, the very fact that “[t]he States

exist” and exercise broad residual power “refut[es]”

any notion that the federal government acts as the “ultimate, preferred mechanism for expressing the people’s will,” Alden v. Maine, 527 U.S. 706, 759 (1999).

4

This division of power “preserves the integrity,

dignity, and . . . sovereignty of the States,” Bond v.

United States (Bond I), 564 U.S. 211, 221 (2011), and

thereby “secures to citizens the liberties that derive

from the diffusion of sovereign power,” Shelby Cnty. v.

Holder, 570 U.S. 529, 543 (2013) (quoting Bond I, 564

U.S. at 221); see also The Federalist No. 51, at 351 (J.

Madison) (J. Cooke ed. 1961) (discussing the “double

security” provided by the “compound republic of America”). Indeed, the federal system “assures a decentralized government . . . sensitive to the diverse needs of a

heterogenous society,” “increases opportunity for citizen involvement in democratic processes,” “allows for

more innovation and experimentation,” and “makes

government more responsive by putting the States in

competition for a mobile citizenry.” Gregory, 501 U.S.

at 458. These safeguards are a driving force behind

the success of the American experiment.

Recognizing the importance of state sovereignty,

this Court has long presumed that Congress legislates

with an eye toward “preserv[ing] the constitutional

balance between the National Government and the

States.” See Bond v. United States (Bond II), 572 U.S.

844, 862 (2014) (quoting Bond I, 564 U.S. at 222). To

displace traditional spheres of state authority, Congress must therefore “make its intention to do so ‘unmistakably clear in the language of [a] statute.’” Gregory, 501 U.S. at 460 (quoting Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 65 (1989)). And that is no

low hurdle: The text itself must contain “exceedingly clear language . . . to significantly alter the balance between federal and state power.” U.S. Forest

5

Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837,

1849–1850 (2020).

This federalism-based interpretive principle is

deeply rooted in the Court’s jurisprudence and is often

invoked when construing acts of Congress. The Court

has respected federalism when interpreting laws that

implicate civil rights, property rights, natural resources, and criminal punishment. See id. at 1849–

1850; Bond II, 572 U.S. at 857–860; Solid Waste

Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs,

531 U.S. 159, 174 (2001); Jones v. United States, 529

U.S. 848, 858 (2000); BFP v. Resol. Tr. Corp., 511 U.S.

531, 544 (1994); Will, 491 U.S. at 65; United States v.

Bass, 404 U.S. 336, 349–350 (1971). It has respected

federalism when protecting state power to regulate local transportation services and labor relations. See

United Auto., Aircraft & Agric. Implement Workers of

Am. v. Wisc. Emp. Rels. Bd., 351 U.S. 266, 274–275

(1956); Apex Hosiery Co. v. Leader, 310 U.S. 469, 513

(1940); Palmer v. Com. of Mass., 308 U.S. 79, 84

(1939). It has respected federalism when considering

laws setting qualifications for state office, Gregory,

501 U.S. at 457–464, and laws regulating interactions

between state officials and their constituents, McDonnell v. United States, 579 U.S. 550, 576–577 (2016).

And it has repeatedly shown respect for federalism

when construing congressional delegations of legislative power. See Ala. Ass’n of Realtors v. HHS, 141 S.

Ct. 2485, 2489 (2021) (per curiam); United States v.

Five Gambling Devices Labeled in Part “Mills,” &

Bearing Serial Nos. 593-221, 346 U.S. 441, 449–450

(1953); FTC v. Bunte Bros., 312 U.S. 349, 351 (1941).

6

In each of these contexts, and countless others, “‘it

is incumbent upon the . . . courts to be certain of Congress’[s] intent before’” holding that a “‘law overrides’

the ‘usual constitutional balance of federal and state

powers.’” Bond II, 572 U.S. at 858 (quoting Gregory,

501 U.S. at 460).

II. Lower Courts Have Misconstrued Section

230 and Displaced Broad Swaths of State

Law.

Unfortunately, the lower courts have largely disregarded federalism when interpreting and applying

Section 230.

“[C]ases applying [Section 230] are notable for

their expansive interpretation.” Agnieszka McPeak,

Platform Immunity Redefined, 62 Wm. & Mary L. Rev.

1557, 1574 (2021). Courts have “relied on policy and

purpose arguments to grant sweeping protection to Internet platforms.” Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 141 S. Ct. 13, 15 (2020)

(Thomas, J., statement respecting denial of certiorari). This approach embraces “a capacious conception of what it means to treat” an internet company

“as the publisher or speaker of information provided

by a third party.” Jane Doe No. 1 v. Backpage.com,

LLC, 817 F.3d 12, 19 (1st Cir. 2016) (paraphrasing 47

U.S.C. § 230(c)(1)). In the name of “Congress’s objectives,” courts openly “favor . . . immunity,” Force v. Facebook, Inc., 934 F.3d 53, 64 (2d Cir. 2019), and freely

ignore the limitations of Section 230’s text, see Zeran

v. Am. Online, Inc., 129 F.3d 327, 331–334 (4th Cir.

1997) (blurring the distinction between “publisher”

7

and “distributor” liability). These decisions have “extended the immunity in § 230 far beyond anything

that plausibly could have been intended by Congress.”

1 Rodney A. Smolla, Law of Defamation § 4:86 (2d ed.

2019) (Nov. 2022 Update).

The result has been widespread preemption of

state law to which “publishing” third-party content is

at best “tangentially related.” Gregory M. Dickinson,

The Internet Immunity Escape Hatch, 47 BYU L. Rev.

1435, 1471 (2022). Straining to protect internet companies as “publisher[s],” courts have used Section 230

to preempt state-law claims for breach of contract,

Goddard v. Google, Inc., No. C 08-2738 JF (PVT), 2008

WL 5245490, at *5 (N.D. Cal. Dec. 17, 2008); gross and

ordinary negligence, Doe v. MySpace, Inc., 528 F.3d

413, 422 (5th Cir. 2008); negligence per se, Daniel v.

Armslist, LLC, 926 N.W.2d 710, 726 (Wis. 2019); unlawful and unfair competition, Kimzey v. Yelp Inc., 21

F. Supp. 3d 1120, 1121, 1123 (W.D. Wash. 2014); products liability, negligent design, and failure to warn,

Herrick v. Grindr, LLC, 306 F. Supp. 3d 579, 588–592

(S.D.N.Y. 2018); the intentional infliction of emotional

distress, Jones v. Dirty World Ent. Recordings LLC,

755 F.3d 398, 402, 417 (6th Cir. 2014); public nuisance, Armslist, 926 N.W.2d at 726; civil conspiracy,

id.; infringement of state-based intellectual property

rights, Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102,

1108, 1118–1119 (9th Cir. 2007); state cyberstalking

and securities violations, Universal Commc’n Sys.,

Inc. v. Lycos, Inc., 478 F.3d 413, 422 (1st Cir. 2007);

tortious interference with a business expectancy,

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

591 F.3d 250, 252–253 (4th Cir. 2009); and aiding or

8

abetting other tortious conduct, Goddard, 2008 WL

5245490, at *7; Armslist, 926 N.W.2d at 726.

Indeed, the broad displacement of state law has

created a “rift between the law applicable to online

versus offline entities,” essentially eradicating state

law claims against any defendant who “happens to operate online.” Dickinson, supra, 47 BYU L. Rev. at

1471.

This precedent strikes at the heart of one of “the

classic concerns” of state law: allocating loss among

private parties. See John Conyers, Jr., Class Action

“Fairness”—A Bad Deal for the States and Consumers,

40 Harv. J. on Legis. 493, 501 (2003). Although the

past century has seen increasing “willing[ness] to regulate all sorts of behavior through the federal government . . ., Congress has scrupulously, and with very

few exceptions, respected the right of the states to develop, enforce, and apply” their own judgment as to

“what kinds of behaviors give rise to a private action

for damages.” Roger Trangsrud, Federalism and Mass

Tort Litigation, 148 U. Pa. L. Rev. 2263, 2266 (2000)

(footnotes omitted). “[D]uring all that period, Congress [largely] respected tort law as a state prerogative.” Gary T. Schwartz, Considering the Proper Federal Role in American Tort Law, 38 Ariz. L. Rev. 917,

921 (1996). For example, while the Federal Aviation

Administration “comprehensively regulates the airline industry, passengers injured in crashes sue under

state law.” Transgrud, supra, at 2266 (footnotes omitted). While the Food and Drug Administration reviews “[t]he safety and efficacy of prescription

drugs . . ., state law provides the remedy for those hurt

9

by such products.” Id. And while the Occupational

Safety and Health Administration “regulates working

conditions of buildings and construction sites,” workers’ “injuries are remedied under state law.” Id.

When it comes to the internet, however, the campaign toward ever-expanded “publisher” immunity increasingly eliminates States’ ability to allocate losses

for internet-related wrongs. Without the courts’ aggressive reading of Section 230, the States would have

been free to “try novel social and economic experiments” in assigning such losses. New State Ice Co. v.

Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). That approach “comports with basic federalism principles,” Coby Warren Logan, Federal Class

Action Reform Legislation: The “Unfair” Approach to

Addressing the Issues of Modern Mass Tort Litigation,

40 Tort Trial & Ins. Prac. L.J. 1145, 1171 (2005), and

is particularly appropriate in areas where new technology raises the question of who should bear the costs

of a harm.

But instead of letting state law sort it out, courts

have almost completely prevented people from holding

internet companies “accountable for harms,” even

when those harms “were facilitated or caused by

the[ir] internet platforms,” Val Rigodon, Death by a

Thousand Duck Bites in a No-Man’s Land: Navigating

Section 230’s Scope and Impact in a Changing Internet

and World, 25 CUNY L. Rev. 311, 311 (2022) (emphasis added). It is highly unlikely Congress intended

this near-global displacement of state law when it enacted Section 230 in 1996. By its terms, the statute

10

only prohibits the “treat[ment]” of an internet company “as the publisher or speaker” of third-party expression. 47 U.S.C. § 230(c)(1). It does not use “exceedingly clear language” setting out a general immunity from the plethora of personal-injury actions

described. Cowpasture, 140 S. Ct. at 1849–1850; supra Part I. In other words, “[t]he Communications Decency Act was not meant to create a lawless no-man’sland on the Internet.” Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157,

1164 (9th Cir. 2008) (en banc). But as a result of the

judicial gloss on Congress’s terse language, losses that

originate on the internet now simply lie where they

fall.

III. Due Respect for Federalism Supports a Narrow View of “Publisher” Immunity That

Does Not Reach the Targeted Promotion of

Content.

This Court is free to ignore that gloss, see CBOCS

West, Inc. v. Humphries, 553 U.S. 442, 471 (2008)

(Thomas, J., dissenting), and it should. Returning to

Section 230’s text and interpreting it with federalism

in mind yields a more limited view of “publisher” immunity that leaves intact traditional state authority.

The term “publisher” has a well-recognized pedigree that should inform the statute’s meaning. See

Stokeling v. United States, 139 S. Ct. 544, 551 (2019).

Under traditional defamation law, “publishers” exercise editorial control over the content they disseminate, and are thus subject to liability when they “reprint[]” someone else’s libel. Restatement (Second) of

Torts § 578, Comment b (1977). Their ability to filter

11

libelous statements thus distinguishes “publishers”

from mere “distributors” of libel—like “news vendors,

book stores, and libraries”—whose actual knowledge

of the libel must be proved “before liability can be imposed.” Cubby, Inc. v. CompuServe, Inc., 776 F. Supp.

135, 139 (S.D.N.Y. 1991).

“In its early days, the internet more closely resembled the traditional publication world, and pre-Section

230 courts quickly adopted [these] publication-world

principles.” Gregory M. Dickinson, Rebooting Internet

Immunity, 89 Geo. Wash. L. Rev. 347, 365 (2021). But

libel law’s distinction between “publishers” and “distributors” soon created a perverse incentive. As illustrated by the now-infamous Stratton Oakmont, Inc. v.

Prodigy Services Co., No. 31063/94, 1995 WL 323710

(N.Y. Sup. Ct. May 24, 1995), an internet company’s

efforts to moderate third-party posting could be construed as “editorial control” that would make the company a “publisher” as opposed to a mere “distributor,”

id. at *4. And as “millions of people flocked to the internet” to post their (sometimes libelous) thoughts,

“manually moderating millions of comments, content,

and posts became a heavy burden.” Rigodon, supra, at

316. Thus, a company could either avoid defamation

liability by letting third-party posters run amok, or it

could attempt to clean up as much third-party content

as possible and risk liability as a “publisher” of any

libel that happened to slip through the cracks. Read

against this backdrop, Congress’s choice of the term

“publisher” plainly took aim at eliminating a particular species of defamation liability, not the digital

“printing” of third-party content more generally. See

McPeak, supra, at 1574; Force, 934 F.3d at 78–80

12

(Katzmann, C. J., concurring in part and dissenting in

part) (providing detailed account of the meaning of

“publisher” at the time of enactment).

Since 230’s enactment, however, advances in computer technology have made the internet a dramatically different place. Social media companies that now

claim Section 230 immunity do not just “publish” usergenerated material; they actively exploit it. To make

money, they “run ads.” Facebook, Social Media, Privacy, and the Use and Abuse of Data: Joint Hearing

Before the S. Comm. on Com., Sci., & Transp. and the

S. Comm. on the Judiciary, S. Hrg. No. 683, 115th

Cong., Tr. (Doc. J-115-40) at 21 (statement of Mark

Zuckerberg, Chairman and CEO of Facebook). 2 And

their customers (the advertisers) “want as many [people] as possible to see th[ose] ads.” Sang Ah Kim, Social Media Algorithms: Why You See What You See, 2

Geo. L. Tech. Rev. 147, 148 (2017). The platforms thus

seek to maximize ad exposure by “engaging” users,

getting them to spend as much time as possible “interacting with content on the platform, including viewing, liking, commenting, sharing, and saving [thirdparty] posts.” Id. at 147–148.

To drive this “engagement,” the companies use sophisticated computer programming that recommends

content to users in an intentional, deliberate way. Id.

at 149–151; see also Dickinson, supra, 89 Geo. Wash.

L. Rev. at 370 (crediting “backend data storage and

processing technologies” for “enabl[ing] a shift” to this

2 https://www.congress.gov/115/chrg/CHRG-115shrg37801/

CHRG-115shrg37801.pdf.

13

“dynamic and interactive” model). “Even if a user is

passive and does not engage with a post,” computer

algorithms “record[] the duration of time [the] user

keeps the post on [his or her] screen” and takes it as

“an indication of the user’s interest in the content of

the post.” Kim, supra, at 150. The companies then

use that information to recommend other content to

users—including, as alleged in this case, harmful ISIS

content. So users post content (text, pictures, videos,

etc.) on a platform to reach a wide audience, and the

company running the platform uses that content to

hook other users and sell ad space. See Pet.App. 83a–

84a (Berzon, J., concurring) (noting that platforms

“amplify and direct . . . content” to users “interested in

or susceptible to those messages” so that users will

“stay on the platform to watch more”). When this arrangement generates collateral damage, however, injured parties have been consistently denied recovery

for the internet companies’ own “design choices and

actions” because courts have placed those actions

within the role of “publisher.” Rigodon, supra, at 318.

If Congress wants to immunize internet companies from liability to this dramatic extent, it needs to

pass a law expanding Section 230. “Section 230 offers

no guidance on how to separate the third-party content from the [platform operator’s] design choice.” Id.

at 324. And “it strains the English language to say

that in . . . recommending” content to users, a platform

“is acting as ‘the publisher of . . . information provided

by another information content provider.’” Force, 934

F.3d at 76–77 (Katzmann, C. J., concurring in part

and dissenting in part) (quoting 47 U.S.C. § 230(c)(1)).

By telling “the reader—you, specifically—will like this

14

content,” internet companies act more like “a matchmaker” than “a publisher.” Id. at 76, 82. And, here,

YouTube’s algorithms allegedly matched a user with

and promoted harmful ISIS content. “[T]hese types of

targeted recommendations and . . . interactions” fall

squarely “outside the scope of traditional publication.”

Pet.App. 84a (Berzon, J., concurring).

At a minimum, Congress has not “ma[de] its intention” to displace state law in these circumstances

“‘unmistakably clear in the language of [Section 230].’”

Gregory, 501 U.S. at 452 (quoting Will, 491 U.S. at 65).

Thus, the federalism canon resolves any ambiguity in

the interpretive question and weighs heavily against

a broad reading of Section 230 immunity. See supra

Part I.

This does not, of course, mean that modern internet companies will inevitably face liability for recommending content. For centuries, state law has sorted

through “questions of intent, negligence, foreseeability, causation, and the like” when novel economic arrangements produce novel externalities. Dickinson,

supra, 89 Geo. Wash. L. Rev. at 377. And courts are

perfectly capable of recognizing “attenuated causal

chain[s] . . . forged entirely out of surmise.” Jane Doe,

817 F.3d at 25. Reining in Section 230 immunity thus

would not open the floodgates; it would simply allow

cases to proceed “where a plaintiff’s injury is causally

connected to third-party-created content, [and] the defendant’s alleged wrongdoing is not based on a failure

to moderate that content.” Dickinson, supra, 89 Geo.

Wash. L. Rev. at 372. That approach both adheres to

Section 230’s text and respects the role of federalism.

15

* * *

The federal system cannot thrive without state

law playing its proper, traditional role. Although Congress may limit that role when it regulates “Commerce

. . . among the several States,” U.S. Const. Art. I, § 8,

cl. 3, this Court should look askance at the notion that

Congress intended the targeted language of Section

230 to immunize internet companies from nearly all

forms of private liability. The federalism canon counsels against that result and favors reversal here.

CONCLUSION

The judgment of the Ninth Circuit should be reversed.

16

Respectfully submitted,

JONATHAN SKRMETTI

Attorney General

State of Tennessee

ANDRÉE S. BLUMSTEIN

Solicitor General

Counsel of Record

J. MATTHEW RICE

Special Assistant to

the Solicitor General

GABRIEL KRIMM

Assistant Solicitor General

Office of the Attorney General

P.O. Box 20207

Nashville, TN 37202

(615) 741-3492

andree.blumstein@ag.tn.gov

Counsel for Amicus Curiae

State of Tennessee

DECEMBER 6, 2022

ADDITIONAL COUNSEL

Steve Marshall

Attorney General

State of Alabama

Treg R. Taylor

Attorney General

State of Alaska

Leslie Rutledge

Attorney General

State of Arkansas

Rob Bonta

Attorney General

State of California

Phil Weiser

Attorney General

State of Colorado

William Tong

Attorney General

State of Connecticut

Karl A. Racine

Attorney General

District of Columbia

Lawrence G. Wasden

Attorney General

State of Idaho

Kwame Raoul

Attorney General

State of Illinois

Theodore E. Rokita

Attorney General

State of Indiana

Daniel Cameron

Attorney General

Commonwealth

of Kentucky

Jeff Landry

Attorney General

State of Louisiana

Maura Healey

Attorney General

Commonwealth

of Massachusetts

Keith Ellison

Attorney General

State of Minnesota

Lynn Fitch

Attorney General

State of Mississippi

Doug Peterson

Attorney General

State of Nebraska

John M. Formella

Attorney General

State of

New Hampshire

Matthew J. Platkin

Attorney General

State of New Jersey

Letitia James

Attorney General

State of New York

Joshua H. Stein

Attorney General

State of North Carolina

Ellen F. Rosenblum

Attorney General

State of Oregon

Peter F. Neronha

Attorney General

State of Rhode Island

Alan Wilson

Attorney General

State of

South Carolina

Mark Vargo

Attorney General

State of South Dakota

Susanne R. Young

Attorney General

State of Vermont

Jason S. Miyares

Attorney General

Commonwealth

of Virginia