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.

Petitioners,

GOOGLE LLC,

Respondent.

___________

On Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

___________

BRIEF OF TECHFREEDOM AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

___________

January 18, 2023

CORBIN K. BARTHOLD

Counsel of Record

BERIN SZÓKA

ARI COHN

TECHFREEDOM

110 Maryland Ave. NE #205

Washington, DC 20002

(202) 803-2867

cbarthold@techfreedom.org

i

Table of Contents

Page

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

INTEREST OF AMICUS CURIAE ......................... 1

STATUTORY BACKGROUND ............................... 2

SUMMARY OF ARGUMENT ................................. 7

ARGUMENT .......................................................... 10

I.

SECTION 230 AND THE FIRST AMENDMENT

WORK IN HARMONY ...................................... 10

A. Platform-Versus-Publisher

Fallacy 1.0 ............................................... 10

B. Platform-Versus-Publisher

Fallacy 2.0 ............................................... 12

II. WHATEVER THE COMPLAINT, SECTION 230

IS NOT THE PROBLEM ................................... 17

A. Gutting Section 230 Would Disappoint

Those Who Decry “Big Tech Censorship” ........................................................ 19

B. Gutting Section 230 Would Disappoint

Those Who Want to Curb Hate Speech

and Protect Marginalized Voices ........... 22

CONCLUSION ...................................................... 24

ii

Table of Authorities

Page(s)

Cases

Banaian v. Bascom,

No. 2020-0496 (N.H., May 11, 2022) ................... 16

Barrett v. Rosenthal,

40 Cal.4th 33 (Cal. 2006) ............................... 18, 20

Batzel v. Smith,

333 F.3d 1018 (9th Cir. 2003) .............................. 13

Brown v. Ent. Merchants Ass’n,

564 U.S. 786 (2011) ................................................ 7

Chicago Lawyers’ Comm. v. Craigslist,

519 F.3d 666 (7th Cir. 2008) ................................ 18

Cubby, Inc. v. CompuServe Inc.,

776 F. Supp. 135 (S.D.N.Y. 1991) .......................... 3

Domen v. Vimeo, Inc.,

6 F.4th 245 (2d Cir. 2021) ...................................... 2

Donato v. Moldow,

374 N.J. Super. 475 (N.J. App. Div.

2005) ..................................................................... 18

Google Inc. v. Hood,

822 F.3d 212 (5th Cir. 2016) ................................ 13

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) ................................................ 7

iii

Miami Herald Pub. Co. v. Tornillo,

418 U.S. 241 (1974) .............................................. 15

Moody v. NetChoice, LLC,

No. 22-277 (U.S.) .................................................. 12

Murphy v. Twitter, Inc.,

60 Cal. App. 5th 12 (Cal. Ct. App.

2021) ..................................................................... 18

NetChoice, LLC v. Moody,

No. 22-393 (U.S.) .................................................. 12

NetChoice, LLC v. Moody,

34 F.4th 1196 (11th Cir. 2022) ...................... 14, 15

NetChoice, LLC v. Paxton,

142 S. Ct. 1715 (2022) .......................................... 12

NetChoice, LLC v. Paxton,

No. 22-555 (U.S.) .................................................. 12

NetChoice, LLC v. Paxton,

49 F.4th 439 (5th Cir. 2022) ........................ passim

People v. Conagra Grocery Prods. Co.,

17 Cal. App. 5th 51 (Cal. Ct. App.

2017) ..................................................................... 21

Reno v. ACLU,

521 U.S. 844 (1997) ................................................ 5

Stratton Oakmont, Inc. v. Prodigy Servs.

Co., 1995 WL 323710 (N.Y. Sup. Ct.,

May 24, 1995) ................................................. 2, 3, 7

iv

Tacket v. Gen. Motors Corp.,

836 F.2d 1042 (7th Cir. 1987) ................................ 6

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) .............................................. 15

Zeran v. Am. Online,

129 F.3d 327 (4th Cir. 1997) .......................... 5, 6, 7

Zeran v. Am. Online,

985 F. Supp. 1124 (E.D. Va. 1997) .................. 6, 18

Constitution and Statutes

Const. art. I, § 6, cl. 1 ................................................ 14

47 U.S.C. § 230(c)(1) .......................................... passim

47 U.S.C. § 230(f)(2) .................................................... 4

Other Authorities

141 Cong. Rec. H. 8471 (Aug. 4, 1995)

(statement of Rep. Zoe Lofgren) .......................... 13

Corbin K. Barthold, Section 230 Heads

to the Supreme Court, Reason (Nov.

4, 2022), https://bit.ly/3QoUtC1 ............................. 1

Ken Bensinger & Sheera Frenkel, Talk

of ‘Civil War,’ Ignited by Mar-a-Lago

Search, Is Flaring Online, N.Y.

Times (Oct. 5, 2022), https://nyti.ms/

3GuHslD ............................................................... 22

v

Brendan Carr (@BrendanCarrFCC),

Twitter (Oct. 3, 2022), 4:51 PM,

https://bit.ly/3G2n24E .......................................... 19

Chris Cox, Testimony of Former U.S.

Rep. Chris Cox Before the Senate

Subcomm. on Comm’ns, Tech.,

Innovation, and the Internet (July 28,

2020), https://bit.ly/3FwFf8X ................................. 4

Ted Cruz, Facebook Has Been Censoring

or Suppressing Conservative Speech

for Years, Fox News (Apr. 11, 2018),

https://fxn.ws/3GwQRcm ..................................... 11

Billy Easley, Revising the Law That Lets

Platforms Moderate Content Will

Silence Marginalized Voices, Slate

(Oct. 29, 2020), https://bit.ly/

3k60LKR............................................................... 23

Fostering a Healthier Internet to Protect

Consumers, Hearing Before the

House Energy & Com. Comm. (Oct.

16, 2019) (statement of Rep. Cathy

McMorris Rodgers), https://bit.ly/

3H3lms5................................................................ 11

Donald G. Gifford, Public Nuisance as a

Mass Products Liability Tort, 71 U.

Cin. L. Rev. 741 (2003) ......................................... 21

vi

David Greene, Publisher or Platform? It

Doesn’t Matter, Electronic Frontier

Foundation (Dec. 8, 2020),

https://bit.ly/3GPqDDo ......................................... 11

Elliot Harmon, No, Section 230 Does Not

Require Platforms to Be “Neutral”,

Electronic Frontier Foundation

(April 12, 2018), https://bit.ly/

2DJ1zO4 ......................................................... 13, 14

Peter Kafka, Why Disney Didn’t Buy

Twitter, Vox (Sept. 7, 2022),

https://bit.ly/3VYI74w .......................................... 15

Jeff Kosseff, A User’s Guide to Section

230, and a Legislator’s Guide to

Amending It (or Not), 37 Berkeley

Tech. L.J. (forthcoming),

https://bit.ly/3Fu1zkT........................................... 19

Jeff Kosseff, The Twenty-Six Words

That Created the Internet (Cornell

Univ. Press 2019) ......................................... passim

Merriam-Webster.com Dictionary,

https://bit.ly/31FRgnU ........................................... 4

Catherine Padhi, Ted Cruz vs. Section

230: Misrepresenting the

Communications Decency Act,

Lawfare (Apr. 20, 2018),

https://bit.ly/2vxKDYE ......................................... 11

vii

Platform Responsibility & Section 230:

Filtering Practices of Social Media

Platforms, Hearing Before the House

Comm. on the Judiciary (Apr. 26,

2018) (Testimony of Berin Szóka),

https://bit.ly/3Wdbqkd............................................ 1

Restatement (Second) of Torts ..................................... 6

Berin Szóka & Ari Cohn, The Wall

Street Journal Misreads Section 230

and the First Amendment, Lawfare

(Feb. 3, 2021), https://bit.ly/3GltTVK .................... 1

Berin Szóka & Ashkhen Kazaryan,

Section 230: An Introduction for

Antitrust & Consumer Protection

Practitioners, The Global Antitrust

Institute Report on the Digital

Economy (2020) ...................................................... 2

TechFreedom, Armchair Discussion

with Former Congressman

Christopher Cox, YouTube (Aug. 10,

2017), https://bit.ly/3FtJG5D ................................. 2

Brief of TechFreedom as Amicus ISO

Petitioner, Malwarebytes, Inc. v.

Enigma Software Group USA, LLC,

No. 19-1284 (U.S., June 12, 2020) ......................... 1

viii

Comments of TechFreedom, In re

Petition for Rulemaking to Clarify

Provisions of Section 230 of the

Communications Act of 1934, FCC

Dkt. RM-11862 (Sept. 2, 2020),

https://bit.ly/31XVlpe ......................................... 1, 2

Suzanne Vranica, et al., Elon Musk’s

Campaign to Win Back Twitter

Advertisers Isn’t Going Well, Wall St.

J. (Dec. 22, 2022), https://on.wsj.com/

3IASicw ................................................................. 15

Christopher S. Yoo, Free Speech and the

Myth of the Internet as an

Unintermediated Experience, 78 Geo.

Wash. L. Rev. 697 (2010) ..................................... 20

INTEREST OF AMICUS CURIAE*

TechFreedom is a nonprofit, nonpartisan think

tank based in Washington, D.C. It is dedicated to

promoting technological progress that improves the

human condition. It seeks to advance public policy

that makes experimentation, entrepreneurship, and

investment possible.

Throughout its existence, TechFreedom has

staunchly defended free speech on the Internet.

Accordingly, TechFreedom’s experts have long been at

the forefront of the fight to protect Section 230, the

bulwark of online free expression. Through its articles,

reports, congressional testimony, legal briefs,

regulatory comments, and more, TechFreedom seeks

to explain why Section 230 is so important, and why

eliminating or narrowing it would be a catastrophic

mistake. See, e.g., Corbin K. Barthold, Section 230

Heads to the Supreme Court, Reason (Nov. 4, 2022),

https://bit.ly/3QoUtC1; Berin Szóka & Ari Cohn, The

Wall Street Journal Misreads Section 230 and the

First Amendment, Lawfare (Feb. 3, 2021),

https://bit.ly/3GltTVK; Platform Responsibility &

Section 230: Filtering Practices of Social Media

Platforms, Hearing Before the House Comm. on the

Judiciary (Apr. 26, 2018) (testimony of Berin Szóka),

https://bit.ly/3Wdbqkd; Brief of TechFreedom as

Amicus ISO Petitioner, Malwarebytes, Inc. v. Enigma

Software Group USA, LLC, No. 19-1284 (U.S., June

12, 2020); Comments of TechFreedom, In re Petition

for Rulemaking to Clarify Provisions of Section 230 of

* No party’s counsel authored any part of this brief. No person or

entity, other than TechFreedom and its counsel, helped pay for

the brief’s preparation or submission.

2

the Communications Act of 1934, FCC Dkt. RM-11862

(Sept. 2, 2020), https://bit.ly/31XVlpe.

TechFreedom has influenced the debate over this

vital law before, see, e.g., Domen v. Vimeo, Inc., 6 F.4th

245, 253 (2d Cir. 2021) (citing Berin Szóka & Ashkhen

Kazaryan, Section 230: An Introduction for Antitrust

& Consumer Protection Practitioners, The Global

Antitrust Institute Report on the Digital Economy

(2020)), and we aspire to influence it here. We hope

that, upon reaching the end this brief, the reader will

better understand why Section 230 is “one of the

greatest protections of free online speech in the world.”

Jeff Kosseff, The Twenty-Six Words That Created the

Internet (“Twenty-Six Words”), 4 (Cornell Univ. Press

2019).

STATUTORY BACKGROUND

In the summer of 1995, a New York trial court

issued a ruling against Prodigy, one of the early online

service providers. The company, concluded Stratton

Oakmont, Inc. v. Prodigy Services Co., 1995 WL

323710 (N.Y. Sup. Ct., May 24, 1995), could be held

liable for allegedly defamatory statements posted on

one of its bulletin boards. What made this decision

“surpassingly stupid,” as former Rep. Chris Cox would

later describe it, was that it exposed Prodigy to

liability simply because the firm had engaged in what

we now call content moderation. TechFreedom,

Armchair Discussion with Former Congressman

Christopher Cox, YouTube (Aug. 10, 2017), https://bit.

ly/3FtJG5D.

3

A few years before, another early online service

provider, CompuServe, had defeated a similar lawsuit.

Unlike Prodigy, CompuServe did not engage in

content moderation. It neither knew nor sought to

know what was said in its forums. Cubby, Inc. v.

CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991),

therefore found that CompuServe was simply a

distributor—a passive conduit—of others’ material.

Prodigy, by contrast, monitored its service in an effort

to spot and remove content that ran against “the

culture of the millions of American families” that it

“aspire[d] to serve.” Prodigy, 1995 WL 323710 at *2.

This, according to Stratton Oakmont, made it a

publisher of the content it hosted. (Don’t get too

attached to the “distributor” label. As we’ll see, it

merely describes a subset of publishers, and is not

itself a “freestanding” legal concept. Resp. Br. 48.)

A distributor (really, a secondary publisher), such

as a bookstore or library, faces liability for others’

speech only if it knew or should have known of the

speech’s illegality. A (primary) publisher, such as a

book producer or a newspaper, faces stricter liability

for the speech it disseminates. But cf. Resp. Br. 48-49

(noting that this more stringent standard has eroded).

By making a “choice” to “gain the benefits of editorial

control,” Stratton Oakmont declared, Prodigy had

transformed itself from a distributor into a publisher,

thereby exposing itself to “greater liability than

CompuServe and other computer networks that make

no such choice.” 1995 WL 323710 at *5.

Cox and then-Rep. Ron Wyden wanted (among

other things) to protect services in Prodigy’s position

from publisher liability. In other words, they wanted

4

to eliminate the “moderator’s dilemma”—a legal

regime under which an online forum that moderates

some content becomes legally responsible for all the

content it hosts. To that end, they introduced the bill

that would become the law that we now know as

Section 230. Compare Chris Cox, Testimony of Former

U.S. Rep. Chris Cox Before the Senate Subcomm. on

Comm’ns, Tech., Innovation, and the Internet, at 3

(July 28, 2020), https://bit.ly/3FwFf8X (explaining

that Section 230 eliminated the moderator’s dilemma)

and U.S. Brief 15 (acknowledging the same) with Cruz

Brief 7-9 (construing Section 230 in a way that would

revive the moderator’s dilemma) and Hawley Brief 48 (same).

Section 230’s pivotal provision states: “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.” 47

U.S.C. § 230(c)(1). The law defines an “interactive

computer service” as something that enables “multiple

users” to use “a computer server.” Id. § 230(f)(2). Such

a service, when it hosts third-party content as

contemplated by Section 230(c)(1), operates as a

platform: “a means or opportunity to communicate

ideas or information to a group of people.” MerriamWebster.com Dictionary (Jan. 13, 2023), https://bit.ly/

31FRgnU. In sum, with limited exceptions, Section

230(c)(1) protects any “provider or user” of a

platform—from large websites and apps to individual

blogs and social media accounts—from liability for

disseminating speech created by others.

Originally called the Internet Freedom and Family

Empowerment Act, Cox and Wyden’s bill was hitched,

5

in the commotion of the legislative process, to a very

different Senate bill, the Communications Decency

Act, which sought in essence to ban pornography from

the Internet. Compare Kosseff, Twenty-Six Words,

supra, at 57-74 (explaining the distinct origins of the

two bills) with Cruz Brief 9-10 (erroneously treating

Section 230 and the original CDA’s anti-porn

provisions as a single coherent scheme) and Hawley

Brief 11 (same). Both bills were then passed as part of

the Telecommunications Act of 1996. A year later the

Supreme Court struck down the Senate’s anti-porn

regulation as a violation of the First Amendment.

Reno v. ACLU, 521 U.S. 844 (1997). Cox and Wyden’s

deregulatory effort passed through this divorce

unscathed. It even kept the name of its unconstitutional former spouse: to this day it is misleadingly

known as Section 230 of the Communications Decency

Act.

A few months after the Supreme Court invalidated

the “true” CDA, Judge Wilkinson issued the first

major decision on Section 230. Under Section

230(c)(1), he wrote in Zeran v. America Online, 129

F.3d 327 (4th Cir. 1997), “lawsuits seeking to hold [an

online] service provider liable for its exercise of a

publisher’s traditional editorial functions—such as

deciding whether to publish, withdraw, postpone, or

alter content—are barred,” id. at 330.

The plaintiff, Kenneth Zeran, argued that

Section 230(c)(1) protects websites only from

publisher liability, not “distributor” liability. As both

the district court, through Judge Ellis, and the Fourth

Circuit, led by Judge Wilkinson, explained, however,

Zeran misunderstood “the true nature of so-called

6

distributor liability and its relationship to publisher

liability.” Zeran v. Am. Online, 985 F. Supp. 1124,

1133 (E.D. Va. 1997). “Distributor liability, or more

precisely, liability for knowingly or negligently

distributing defamatory material, is merely a species

or type of liability for publishing defamatory

material.” Id. In other words, “distributor liability” is

just a more lenient standard of liability for a certain

kind of publisher. It follows that, in using the term

“publisher,” Section 230(c)(1) protects websites from

both (primary) publisher and “distributor” (secondary

publisher) liability. Id.; 129 F.3d at 332. See also Resp.

Br. 48-52.

Both the district court and the Fourth Circuit

invoked (among other things) the Restatement

(Second) of Torts and Judge Easterbrook’s opinion in

Tacket v. General Motors Corp., 836 F.2d 1042 (7th

Cir. 1987). The Restatement declares: “One who

intentionally and unreasonably fails to remove

defamatory matter that he knows to be exhibited” on

his property “is subject to liability for its continued

publication.” § 577(2). Judge Easterbrook elaborated:

“Adoption of another’s publication is an old basis of

liability …. Failing to remove a libel from your

building, after notice and an opportunity to do so, is a

form of adoption.” Tacket, 836 F.2d at 1046. In short,

to distribute another’s material, when you know or

should know what that material says, is to be a

publisher of it.

Judge Wilkinson explained why this makes sense

as a matter of logic. Section 230, he pointed out, simply

can’t protect publishing unless it also protects

distributing. The greater protection must include the

7

lesser. To see why, suppose that someone objects to a

piece of content hosted by a platform. The platform

then knows about the content and, knowing about it,

must decide what to do with it. It is put to the “choice”

of “editorial control.” Stratton Oakmont, 1995 WL

323710 at *3. In working out whether to leave the

content up, downrank it, label it, or remove it, the

platform approaches the content as a publisher does,

and in so doing enjoys the protection of Section

230(c)(1). 129 F.3d at 332-33.

Not surprisingly, given its respected author, its

careful research, and its persuasive reasoning, the

Fourth Circuit’s Zeran decision proved enormously

influential. Following its lead, courts have held that

Section 230(c)(1) protects platforms (i.e., “interactive

computer service[s]”) from liability for chatroom

remarks, social media posts, forwarded emails, dating

profiles, product and employer reviews, business

location listings, and more. Thanks to Section 230, the

Internet’s most popular destinations—Google,

Facebook, YouTube, Reddit, Wikipedia—are filled

with user-generated content. It is only a small

exaggeration to say that Section 230 contains the

twenty-six words that created the Internet. See

Kosseff, Twenty-Six Words, supra.

SUMMARY OF ARGUMENT

“‘The basic principles of freedom of speech and the

press,’” Justice Scalia once wrote for this Court, “‘do

not vary’ when a new and different medium of

communication appears.” Brown v. Ent. Merchants

Ass’n, 564 U.S. 786, 790 (2011) (quoting Joseph

Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952)).

8

Section 230 was enacted to honor this principle, not to

undermine it.

With Section 230 in place, the Internet has

flourished. Companies can offer search engines, social

media, customer review aggregators, dating apps, and

comment sections—and non-profits and private

citizens can offer crowd-sourced encyclopedias and

community forums—without getting pummeled with

lawsuits for other people’s misconduct. Everybody

wins. By (usually) pinning culpability for illegal

content squarely on the person who created it, Section

230 enables Internet services to grow and thrive by

offering user-generated content. By filling the

Internet with different speech environments, the

services’ innovation enables a wide array of people to

find places online where they feel comfortable

speaking. Section 230 is a boon for free speech, for the

Internet, and for free speech on the Internet.

Section 230 is not a “Big Tech” regulation. Yet some

prominent critics of so-called “Big Tech censorship,”

overcome with scorn for the tech industry, cf. Cruz

Brief 1, 3, 5, 18, 19 (repeatedly vilifying “Big Tech

companies”), want to turn it into one. These critics

have sought to deprive “Big Tech” of Section 230

protection by any means necessary. Even when their

approach would cause immense collateral damage—

limiting Section 230, or even the First Amendment, for

everyone on the Internet—they press on.

A popular belief among these critics is that, in one

way or another, Section 230 distinguishes between

“platforms” and “publishers.” In Section I, we explain

why this notion is wrong. The crude original version of

9

the idea holds that a “platform” must be “neutral” (as

measured … somehow) to enjoy Section 230 protection. This theory—platform-versus-publisher fallacy

1.0—is a nonstarter: it’s no more than a wishful

attempt to rewrite the statute. A revised version of the

idea—recently accepted by the Fifth Circuit—posits

that Section 230 transforms each entity it protects

from a “publisher” into a “platform” that can be

compelled by the government to speak. In addition to

asking the text of Section 230 to do far more than it

can bear, this theory—platform-versus-publisher

fallacy 2.0—claims, quite absurdly, that Section 230

short-circuits the First Amendment. Touch Section

230, this theory claims, and you lose your right to edit

your website (or even your social media account) as

you see fit, free of government interference.

In recent years, Section 230 has become a

scapegoat. The law’s many detractors insist that the

Internet would be better off without it (or with it

greatly weakened). These naysayers are strangely

self-assured about this. Their confidence is especially

puzzling when one considers that some of them detest

Section 230 for enabling speech (namely, hate speech

and misinformation) while others loathe it for

enabling “censorship” (that is, content moderation).

The fact that so many believe so strongly that

curtailing Section 230 will serve utterly disparate

ends should give any serious person pause.

In Section II, we contend that putting new limits

on Section 230 would not satisfy the law’s opponents.

We begin with a few words on why the text of

Section 230 doesn’t support any such limits. We then

show how narrowing Section 230 would result in more,

10

not less, content moderation (or, if one insists, “Big

Tech censorship”). It’s not complicated: more liability

exposure means more caution in displaying (or

recommending) content. Finally, we explain why

narrowing Section 230 would simultaneously create

(1) more online spaces for misinformation and hate

speech and (2) fewer online spaces for marginalized

voices.

ARGUMENT

I.

SECTION 230 AND THE FIRST AMENDMENT

WORK IN HARMONY.

Section 230 does not distinguish between a

“platform” and a “publisher.” A platform, as it

disseminates third-party content, is a publisher. A

publisher, if and when it disseminates third-party

content, is a platform. Section 230(c)(1) protects a

platform—i.e., any provider or user of an “interactive

computer service”—as it publishes third-party

content. It’s that simple. Attempts to read a “platformversus-publisher” distinction into Section 230 are

contrived, misguided, pernicious (especially to broader

First Amendment rights), and wrong.

Platform-Versus-Publisher

Fallacy 1.0.

In its original form, the platform-versus-publisher

fallacy asserts that a website may invoke Section 230

only if it disseminates third-party content in a

“neutral” fashion. Sen. Ted Cruz once claimed, for

instance, that acting as “a neutral public forum” is

11

“the predicate” for “Section 230 immunity.” See

Catherine Padhi, Ted Cruz vs. Section 230: Misrepresenting the Communications Decency Act, Lawfare

(Apr. 20, 2018), https://bit.ly/2vxKDYE. Cruz asserted

that when a website “pick[s] and choose[s]” what

content to allow, it transforms itself from a “platform”

to a “publisher” unprotected by Section 230. Ted Cruz,

Facebook Has Been Censoring or Suppressing

Conservative Speech for Years, Fox News (Apr. 11,

2018), https://fxn.ws/3GwQRcm.

This crude version of the fallacy bears no

connection whatever to Section 230’s text, which

contains no mention of a platform/publisher distinction, and which offers not the slightest guidance on

what would make a platform “neutral.” Indeed, the

original platform-versus-publisher fallacy is at war

with the text of Section 230, which “explicitly grants

immunity to all intermediaries, both the ‘neutral’ and

the proudly biased.” David Greene, Publisher or

Platform? It Doesn’t Matter, Electronic Frontier

Foundation (Dec. 8, 2020), https://bit.ly/3GPqDDo.

See also Fostering a Healthier Internet to Protect

Consumers, Hearing Before the House Energy & Com.

Comm. (Oct. 16, 2019) (statement of Rep. Cathy

McMorris

Rodgers),

https://bit.ly/3H3lms5

(in

enacting Section 230, “Congress never intended to

provide immunity only to websites who are ‘neutral’”).

Hobbled as it is by this fatal defect—promoting, as

it does, a version of Section 230 that does not exist—

platform-versus-publisher fallacy 1.0 has gained no

traction in the courts. Even Sen. Cruz appears to have

abandoned it. Compare Cruz Brief 7-9 (moving on to

12

the publisher-versus-distributor fallacy) with Sec. I,

supra (explaining why that argument, too, fails).

Platform-Versus-Publisher

Fallacy 2.0.

As this Court knows, see NetChoice, LLC v. Paxton,

142 S. Ct. 1715 (2022); NetChoice, LLC v. Paxton, No.

22-555 (U.S.) (set for the Jan. 20, 2023, conference);

NetChoice, LLC v. Moody, No. 22-393 (U.S.) (same);

Moody v. NetChoice, LLC, No. 22-277 (U.S.) (same),

Florida and Texas have attempted to enact social

media speech codes. While defending its new law,

HB20, in court, Texas gave the platform-versuspublisher fallacy a facelift.

In this new version, websites are not offered a

(spurious) choice between “platform” status or

“publisher” status. Instead (the argument runs)

Section 230 flat out strips a host of third-party content

of its First Amendment right to editorial discretion. In

this spin on the fallacy—which the Fifth Circuit

adopted—Section 230 “reflects Congress’s factual

determination that Platforms are not ‘publishers,’”

and that they “are not ‘speaking’ when they host other

people’s speech.” NetChoice, LLC v. Paxton, 49 F.4th

439, 448, 467 (5th Cir. 2022); see also Paxton, 142 S.

Ct. at 1717 n.2 (Alito, J., joined by Thomas and

Gorsuch, JJ., dissenting from grant of application to

vacate stay).

Platform-versus-publisher fallacy 2.0 at least

points to something in Section 230’s text—but it

misunderstands what it points at. Section 230(c)(1)

states that platforms shall not “be treated as the

13

publisher or speaker” of the third-party content they

disseminate. Texas and the Fifth Circuit conflate not

treating a platform as a publisher, for purposes of

liability, with a platform’s not being a publisher, for

purposes of the First Amendment.

As Judge Southwick grasped, in his dissent from

the Fifth Circuit’s decision, platforms that

disseminate third-party content both exercise

“editorial discretion” and enjoy protection “from

traditional publisher liability.” Paxton, 49 F.4th at

506. Although Judge Southwick opined that “this may

be exactly how Section 230 is supposed to work,” id.

(emphasis added), he was being too modest: it’s clearly

how it’s supposed to work. In enacting Section 230,

Congress sought to bolster intermediaries’ First

Amendment rights, not brush them aside (something,

of course, that no statute could do in any event). See,

e.g., Google Inc. v. Hood, 822 F.3d 212, 220 (5th Cir.

2016) (“First Amendment values … drive” Section

230); Batzel v. Smith, 333 F.3d 1018, 1028 (9th Cir.

2003) (Section 230 “sought to further First Amendment … interests on the Internet”); 141 Cong. Rec. H.

8471 (Aug. 4, 1995) (statement of Rep. Zoe Lofgren)

(Section 230 “preserve[s] the First Amendment … on

the Net”).

The fact that a website is not liable for speaking,

when it disseminates others’ content, does not mean

that it is not speaking. Websites “are within their First

Amendment rights to moderate their online platforms

however they like, and they’re additionally shielded by

Section 230 for many types of liability for their users’

speech. It’s not one or the other: It’s both.” Elliot

Harmon, No, Section 230 Does Not Require Platforms

14

to Be “Neutral”, Electronic Frontier Foundation (April

12, 2018), https://bit.ly/2DJ1zO4.

“An entity that exercises ‘editorial discretion,’” the

Fifth Circuit claimed, “accepts reputational and legal

responsibility for the content it edits.” Paxton, 49

F.4th at 464. Therefore, the Fifth Circuit reasoned,

Congress can indeed strip an entity of its First

Amendment right to editorial discretion, so long as

Congress also creates a legal regime under which that

entity bears no legal or reputational responsibility for

its editorial decisions.

Packaged within this argument is a quixotic and

undefended belief that if Congress strengthens your

ability to speak (by removing potential legal or

reputational consequences), it may weaken your right

to free speech (by telling you what to say). The Fifth

Circuit’s unstated assumption is, in effect, that

Congress can silence a disfavored entity, or turn it into

a state puppet, by handing it a poison chalice.

The argument’s stated premise—no responsibility,

no rights—fares no better. Consider the Speech and

Debate Clause, which provides legislators legal

immunity for what they say on the House or Senate

floor. CONST. ART. I, § 6, cl. 1. No one would claim that,

because he enjoyed constitutionally backed legal

immunity for his words, Charles Sumner was not

“speaking” when he denounced “the harlot, Slavery,”

in the Senate. (Preston Brooks sure thought he was.)

Similarly, the notion that speaking must come with

some kind of a reputational risk “simply isn’t a

prerequisite to First Amendment protection.”

NetChoice, LLC v. Moody, 34 F.4th 1196, 1218 (11th

15

Cir. 2022) (discussing Miami Herald Pub. Co. v.

Tornillo, 418 U.S. 241, 244, 258 (1974), and Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 636-37 (1994)).

And platforms’ editorial decisions do affect their

reputations. The very people who decry “Big Tech

censorship” prove the point. Thanks largely to certain

high-profile content moderation decisions (e.g.,

ejecting Donald Trump from their services), large

social media platforms have a poor reputation among

certain users. If the topic of “Big Tech” were not so

politically charged, the connection between platforms’

editorial decisions and their reputations would be too

obvious to require elaboration. See, e.g., Suzanne

Vranica, et al., Elon Musk’s Campaign to Win Back

Twitter Advertisers Isn’t Going Well, Wall St. J. (Dec.

22, 2022), https://on.wsj.com/3IASicw (discussing

companies’ unwillingness to purchase Twitter ads

that get displayed next to hate speech); Peter Kafka,

Why Disney Didn’t Buy Twitter, Vox (Sept. 7, 2022),

https://bit.ly/3VYI74w (discussing Disney’s decision to

back out of buying Twitter, after CEO Bob Iger

realized that the “nastiness” on the platform would

damage Disney’s image as a “manufactur[er of] fun”);

Kosseff, Twenty-Six Words, supra, at 241 (discussing

Twitter’s awareness that hosting ISIS content would

“risk ruining the company’s reputation with

customers”) (emphasis added).

There is, quite simply, no tradeoff between

Section 230 protection and First Amendment

protection. And thank goodness: such a tradeoff would

have dreadful implications. Think back to the Fifth

Circuit’s contention that, under Section 230,

“Platforms are not ‘publishers.’” Paxton, 49 F.4th at

16

467. By that logic, no one who enjoys Section 230

protection is a “publisher.” To claim that Section 230

strips platforms of their First Amendment rights, in

other words, is to claim that it strips everyone on the

Internet of their First Amendment rights. If Section

230 protects what you (a user of an interactive

computer service) retweet—as it does, see Banaian v.

Bascom, No. 2020-0496 (N.H., May 11, 2022)—you

can, in the Fifth Circuit’s view, be forced to let the

government tell you what to retweet.

*

*

*

At its root, the platform-versus-publisher fallacy is

an intensely revisionist exercise. It surveys the

Internet as it exists today, spots some large social

media platforms, assumes that those platforms are

akin to public utilities, and then tries to reverseengineer Section 230 into a utility regulation for those

platforms (and, somehow, them alone). This is bad

history as well as bad law. Section 230 governs the

whole Internet. It was enacted precisely so that a

diverse range of platforms, large and small—any

“provider or user of an interactive computer service,”

§ 230(c)(1)—could flourish there. It ensures that Yelp

can host customer reviews, Wikipedia can host crowdsourced encyclopedia entries, news sites can host

comment sections, and an average citizen’s carpentry

website can host a carpentry forum.

Under the correct reading of the law, all these

entities are protected by both Section 230 and the

First Amendment. Congress sought to protect speech

on the Internet, and it succeeded. According to the

platform-versus-publisher arrivistes, these entities

17

are not necessarily protected by either Section 230 or

the First Amendment. Congress laid a trap. Exercise

your First Amendment rights (by failing to be

“neutral,” in the eyes of the state), and you could find

yourself unprotected by Section 230. Still worse,

exercise your Section 230 rights, and you could find

yourself unprotected by the First Amendment.

Either outcome would be (to borrow a word from

the Fifth Circuit) a “staggering” twist. Paxton, 49

F.4th at 445. It should come as a great relief,

therefore, that neither version of the platform-versuspublisher fallacy bears any resemblance to how either

Section 230 or the First Amendment actually works.

“The story of Section 230 is the story of American free

speech in the Internet age,” Kosseff, Twenty-Six

Words, supra, at 8, not the story of the greatest

“Gotcha!” in the history of American law.

II.

WHATEVER THE COMPLAINT, SECTION 230 IS

NOT THE PROBLEM.

Several briefs on the other side attempt to depict

the broad (and correct) understanding of Section 230

as a “policy” choice that courts have grafted onto the

law. See, e.g., Pet. Brief 47-52; U.S. Brief 11-12; Cruz

Brief 13-14, 16; Hawley Brief 9-10, 12-13. But this

ignores the fact that the text of Section 230(c)(1) is

broad. An immunity from being treated as “the

publisher” of third-party content is a broad immunity

indeed—as has been understood from the beginning.

When, writing for the district court in Zeran, Judge

Ellis concluded that Section 230(c)(1) is a broad

protection, he did so entirely in a section entitled

18

“Conflict with the Language of the CDA.” 985 F. Supp.

1132-33. Only then did he proceed to confirm the point

in a section entitled “Conflict with the Purposes and

Objectives of the CDA.” Id. at 1134. As many other

courts would later confirm, Judge Ellis got it right.

See, e.g., Chicago Lawyers’ Comm. v. Craigslist, 519

F.3d 666, 671 (7th Cir. 2008) (Easterbrook, J.)

(“Section 230(c)(1) is general.”); Murphy v. Twitter,

Inc., 60 Cal. App. 5th 12, 33 (Cal. Ct. App. 2021)

(“[T]he terms of section 230(c)(1) are broad and

direct[.]”); Donato v. Moldow, 374 N.J. Super. 475, 497

(N.J. App. Div. 2005) (Section 230(c)(1) contains a

“broad general immunity” and “has received” no more

than a “textual construction”).

That the petitioners, the United States, and their

amici might be unhappy with Section 230(c)(1)’s

breadth is no reason to give the law a cramped

reading. Even if one were to conclude that a “gap”

exists between Section 230’s “broad statutory

language” and “the specific wrongs” Section 230 was

meant to address, that “gap” would be “for Congress,

rather than the courts, to bridge.” Barrett v.

Rosenthal, 40 Cal.4th 33, 63 (Cal. 2006) (Moreno, J.,

concurring).

The respondent’s brief discusses the correct

understanding of Section 230(c)(1)’s text at greater

length. See Resp. Brief 46-52. We make an additional

point: Even if there were colorable text-based

arguments for narrowing Section 230, that does not

mean that doing so would be a good idea. Indeed,

neither of the main factions pushing to restrict Section

230 would be happy with the result.

19

Gutting Section 230 Would Disappoint Those Who Decry “Big Tech

Censorship.”

“The Section 230 critics who believe that platforms

already block too much user content would be

particularly disappointed” by a ruling that guts

Section 230. Jeff Kosseff, A User’s Guide to Section

230, and a Legislator’s Guide to Amending It (or Not),

37 Berkeley Tech. L.J. (forthcoming), https://bit.ly/

3Fu1zkT. Without Section 230, after all, “risk-averse

platforms would block more content than they

otherwise would with the full Section 230 protections

in place.” Id.

Some in the faction that decries “Big Tech

censorship” contend that this case is about “just”

recommendations—the idea being that one could

(1) rule for the petitioners without (2) causing platforms to remove a lot more content. See, e.g., Brendan

Carr (@BrendanCarrFCC), Twitter (Oct. 3, 2022), 4:51

PM, https://bit.ly/3G2n24E (arguing that this case is

only about “whether 230 shields Google from liability

for affirmatively recommending ISIS videos to users”).

That’s a dubious claim—as other commentators from

that same faction are happy to demonstrate. See

Hawley Brief 17 (arguing that Google should face

liability whenever it “continu[es] to operate its

recommendation algorithms” while aware that any

unlawful content exists on its platform). But in any

event, even a ruling that “just” caused platforms to be

more cautious about recommending content would

blow up in this faction’s face. A ruling that mutilated

Section 230 for recommendations would be almost

20

indistinguishable, in the eyes of the “Big Tech

censorship” faction, from a decision that destroyed

Section 230 altogether.

Imagine, for example, a ruling that Section 230

offers only “distributor” protection for recommenddations. Cf. Cruz Brief 7-9; Hawley Brief 4-8. In such

a world, “a provider would be at risk of liability each

time it received notice,” via a complaint, that a

recommendation contains a potentially unlawful

message. Barrett, 40 Cal.4th at 45. Each complaint

would “requir[e] an investigation of the circumstances,

a legal judgment about the [unlawful] character of the

information, and an editorial decision on whether to

continue the [recommendation].” Id. Although “this

might be feasible for the traditional print publisher,”

the “sheer number of postings … would create an

impossible burden in the Internet context.” Id.

Platforms would therefore be likely to stop

recommending a piece of content whenever someone

lodged a complaint against it.

But what good is content that never gets

recommended? It’s recommendations that the people

on the wrong end of the so-called “censorship” covet.

They want the reach that allows them to be heard over

the great crowd of voices on the Internet. See

Christopher S. Yoo, Free Speech and the Myth of the

Internet as an Unintermediated Experience, 78 Geo.

Wash. L. Rev. 697, 701 (2010). Indeed, many of the

same people who want to gut Section 230 also

complain of “shadow banning,” by which they mean a

platform’s allowing a user to post but blocking the

posts from getting recommended to others. Yet a

ruling that withheld Section 230 protection from

21

recommendations would effectively make shadow

banning (so understood) unavoidable and common.

In short, relegating recommendations to

“distributor” liability status “would allow any person

or company who is unhappy with user content to bully

a service provider” into all but hiding that content

from other users, “lest the provider face significant

legal exposure.” Kosseff, Twenty-Six Words, supra, at

94. And the situation would be still worse if platforms

were assumed to have constructive knowledge of the

content they recommend. The platforms would stop

recommending—or even letting users recommend, as

by retweeting—large swathes of content from the getgo.

It is hard to overstate how risk-averse platforms

lacking Section 230 protection would have reason to

be. They’d face far more than just defamation suits (or

terrorism suits like this one). In the past quarter

century or so, for instance, enterprising local

governments have developed a taste for novel and

aggressive theories of public-nuisance liability. See

Donald G. Gifford, Public Nuisance as a Mass

Products Liability Tort, 71 U. Cin. L. Rev. 741 (2003).

Some of these theories have gained traction in court.

See, e.g., People v. Conagra Grocery Prods. Co., 17 Cal.

App. 5th 51 (Cal. Ct. App. 2017) (imposing hundreds

of millions of dollars in public-nuisance liability on

companies that legally sold lead paint more than half

a century ago). Absent Section 230 protection, such

theories could easily be applied to platforms that

disseminate third-party content.

22

Let’s take an example. The New York Times

recently warned “that a growing number of Americans

are anticipating, or even welcoming, the possibility of

sustained political violence.” Ken Bensinger & Sheera

Frenkel, Talk of ‘Civil War,’ Ignited by Mar-a-Lago

Search, Is Flaring Online, N.Y. Times (Oct. 5, 2022),

https://nyti.ms/3GuHslD. “Experts say the steady

patter of bellicose talk”—including on social media—

“has helped normalize,” on the political right, the

notion that violence is, and even should be, coming. Id.

Whenever such violence breaks out, platforms will

face blame for having hosted some of the “patter” that

helped “normalize” violence in the minds of those who

committed it. Remove Section 230, and the platforms

that host such “patter” become vulnerable to publicnuisance liability. Platforms in such a bind are likely

to crack down on even mildly heated rightwing

political rhetoric.

Gutting Section 230 Would Disappoint Those Who Want to Curb Hate

Speech and Protect Marginalized

Voices.

If those who worry about “Big Tech censorship”

lose from narrowing Section 230, you might think that

those who worry about the spread of extremism and

disinformation, and about protecting marginalized

voices, must win. But it’s not so simple.

Recall the moderator’s dilemma: Before Section

230, a platform could limit its liability either by doing

virtually no content moderation or by doing lots of it.

Eliminating Section 230 would bring the dilemma

back to life. In response, platforms would probably

23

move in two very different directions. For those

concerned about hate speech and vulnerable

communities, this split would likely produce the worst

of both worlds.

Some small, fringe platforms would likely reach for

“distributor” status. These platforms would attempt to

bury their heads in the sand, striving to know as little

as possible about what takes place on their sites

(including by making it as hard as possible to notify

them about objectionable or unlawful content). On

these services, hate speech and disinformation would

flourish like never before.

The mainstream platforms, meanwhile, would

grudgingly accept “publisher” status, with all the

extra responsibility that that entails. These platforms

would remove (or stop recommending) content the

moment anyone asserted that it was defamatory or

otherwise illegal. Kosseff, Twenty-Six Words, supra, at

94. In practice, that would spur these services to expel

(or downrank) those who dare to accuse the powerful

of discrimination, corruption, or incompetence. See

Billy Easley, Revising the Law That Lets Platforms

Moderate Content Will Silence Marginalized Voices,

Slate (Oct. 29, 2020), https://bit.ly/3k60LKR.

Before the Internet, as protected by Section 230,

“only the powerful had access to the newspaper ink

and broadcast airwaves, allowing them to tell their

stories.” Kosseff, Twenty-Six Words, supra, at 225. An

average citizen could raise awareness about a

defective product, a corrupt politician, or a toxic

workplace “only if [a] reporter considered the story

worthy of an on-air report.” Id. Curtail Section 230,

24

and we regress toward that more closed, more silent,

more stifled world. “Without Section 230, the

traditional media”—whose “power structures” are

often “stacked against the disenfranchised”—“would

have even more power over speech.” Id. at 223.

CONCLUSION

The judgment should be affirmed.

January 18, 2023

Respectfully submitted,

CORBIN K. BARTHOLD

Counsel of Record

BERIN SZÓKA

ARI COHN

TECHFREEDOM

110 Maryland Ave. NE #205

Washington, DC 20002

(202) 803-2867

cbarthold@techfreedom.org