Amicus Curiae Brief — Reynaldo Gonzalez, et al., Petitioners v. Google LLC
Supreme Court briefJan 19, 2023
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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 AUTHORS ALLIANCE AND
INTERNET CREATORS AS AMICI CURIAE IN
SUPPORT OF THE RESPONDENT
BENJAMIN W. BERKOWITZ
Counsel of Record
STEVEN A. HIRSCH
MATAN SHACHAM
JULIA L. GREENBERG
KEKER, VAN NEST & PETERS LLP
633 Battery Street
San Francisco, CA 94111
(415) 391-5400
bberkowitz@keker.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................. i
TABLE OF AUTHORITIES ...................................... ii
INTEREST OF AMICI CURIAE ................................1
SUMMARY OF ARGUMENT.....................................6
BACKGROUND ..........................................................7
ARGUMENT .............................................................14
I.
Congress intended Section 230 to
foster a free Internet where diverse
and independent expression thrives. .............14
II.
Recommendations contribute to the
flourishing of free expression,
creativity, and innovation on the
Internet. ..........................................................19
III.
Altering Section 230’s intermediaryliability protections for
recommendations may have dire
consequences for current and future
creators, chilling the free flow of
ideas on the Internet. .....................................28
CONCLUSION ..........................................................37
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003)..............................15
Blumenthal v. Drudge,
992 F. Supp. 44 (D.C. Cir. 1998) .........................16
Force v. Facebook, Inc.,
934 F.3d 53 (2d Cir. 2019) ...................................17
Zeran v. AOL, Inc.,
129 F.3d 327 (9th Cir. 1997)................................16
Statutes
47 U.S.C.
§ 230 .......................................... 6–9, 14, 18, 19, 25,
26, 28, 31, 33, 35
§ 230(a)(1).............................................................14
§ 230(a)(3).......................................................15, 36
§ 230(a)(5).............................................................15
§ 230(b)(1).............................................................15
§ 230(b)(2).............................................................15
§ 230(c)(1) ....................... 2, 6, 16, 17, 19, 28, 29, 34
§ 230(c)(2) .............................................................17
§ 230(f)(2) .............................................................17
§ 230(f)(3) .............................................................17
§ 230(f)(4) .............................................................17
iii
Other Authorities
Allow States and Victims to Fight
Online Sex Trafficking Act of 2017,
164 Cong. Rec. S1849 (Mar. 21,
2018) ......................................................... 18, 19, 35
Becky Hughes, Food Businesses Lose
Faith in Instagram After Algorithm
Changes, N.Y. Times (Mar. 22,
2022),
https://www.nytimes.com/2022/03/22
/dining/instagram-algorithmreels.html .............................................................31
Ben Smith, How TikTok Reads Your
Mind, N.Y. Times (Dec. 5, 2021),
https://www.nytimes.com/2021/12/05
/business/media/tiktokalgorithm.html .....................................................20
Chris Stokel-Walker, Meet the workers
who quit their jobs to become fulltime YouTubers, Fast Co. (Dec. 21,
2022),
https://www.fastcompany.com/90828
284/meet-the-workers-who-quittheir-jobs-to-become-full-timeyoutubers..............................................................11
Christopher Cox, Section 230: A
Retrospective, Ctr. for Growth and
Opportunity (Nov. 2022),
https://www.thecgo.org/research/sect
ion-230-a-retrospective/ ...................................8, 18
iv
David Post, A bit of Internet history, or
how two members of Congress helped
create a trillion or so dollars of
value, Wash. Post (Aug. 27, 2015),
https://www.washingtonpost.com/ne
ws/volokhconspiracy/wp/2015/08/27/a-bit-ofinternet-history-or-how-twomembers-of-congress-helped-createa-trillion-or-so-dollars-of-value/ ............................8
Engine, Startups, Content Moderation,
& Section 230 (2021),
https://bit.ly/3XnGG15 .........................................35
Fan fiction, Merriam-Webster’s
Dictionary (last updated Jan. 11,
2023), https://www.merriamwebster.com/dictionary/fan%20fictio
n ............................................................................21
Facebook, What are recommendations
on Facebook?,
https://www.facebook.com/help/1257
205004624246 ......................................................21
Facebook, What are recommendations
on Instagram?,
https://www.facebook.com/help/3138
29416281232 ........................................................21
v
Fresh Air, How YouTube became one of
the planet’s most influential media
businesses, NPR (Sept. 8, 2022),
https://www.npr.org/2022/09/08/1121
703368/how-youtube-became-one-ofthe-planets-most-influential-mediabusinesses ............................................................21
Kitae Kim and Shin-Il Moon, When
Algorithmic Transparency Failed:
Controversies Over AlgorithmicDriven Content Curation in the
South Korean Digital Environment,
Am. Behav. Scientist (2021) ................................33
Leading Creator Platforms, AdAge (Dec.
8, 2022),
https://adage.com/article/media/tikto
k-and-podcasts-join-youtubeleading-creator-platforms/2456176 .....................10
Namera Tanjeem, 50 Shades and More:
11 Published Fan Fiction Books,
BookRiot (Sept. 12, 2019),
https://bookriot.com/publishedfanfiction-books/ ...................................................22
Oxford Econ., The State of The Creator
Economy: Assessing the Economic,
Societal, and Cultural Impact of
YouTube in the US in 2021 (July 22,
2021), https://bit.ly/3WgkS6k ..............................13
vi
Pew Rsch. Ctr., Internet/Broadband
Fact Sheet (Apr. 7, 2021),
https://www.pewresearch.org/interne
t/fact-sheet/internet-broadband/ ...........................7
Richard Florida, The Rise of the Creator
Economy, Creative Class Grp.
(Nov. 2022), https://bit.ly/3XKTizj ...... 9–13, 21, 22
TikTok, How TikTok recommends
videos #ForYou (June 18, 2020),
https://newsroom.tiktok.com/enus/how-tiktok-recommends-videosfor-you ..................................................................20
YouTube, Recommended videos,
https://www.youtube.com/howyoutub
eworks/productfeatures/recommendations/ .................................20
1
INTEREST OF AMICI CURIAE1
Amici curiae are a diverse group of Internet
creators and a non-profit organization that seeks to
advance the interests of authors to serve the public
good by sharing their creations broadly online. Amici
Internet creators are individuals who use digital
technology to make and post original creative content,
such
as
educational,
informational,
and
entertainment videos, which audiences can access,
engage with, and share online. Amicus organization
Authors Alliance supports Internet creators, such as
academic authors, by providing information about
their digital rights and by advocating for policies to
help creators create, preserve, and share their works
online.
Amici are uniquely situated to provide insight
into the impact of targeted online recommendations.
Amici creators post their creative content on digital
distribution platforms like Facebook, Instagram,
LinkedIn, TikTok, Twitter, and YouTube. They rely
on the hosting, display, and recommendation of their
content on these platforms to help promote it and to
reach new audiences that might enjoy their work.
1 No counsel for a party authored this brief in whole or in part.
Nonprofit organization Engine’s Digital Entrepreneur Project
made a monetary contribution intended to fund the preparation
and submission of this brief. None of the parties or their counsel,
nor any other person or entity other than Engine’s Digital
Entrepreneur Project, made a monetary contribution intended
to fund the preparation or submission of this brief.
2
Amici creators have successfully grown their
audiences, shared their creative works, and expanded
their businesses with the assistance of platform
recommendations.
Amicus
Authors
Alliance
represents authors who have similarly benefited from
such curation mechanisms online. Amici believe that
Section 230(c)(1)’s intermediary protections limiting
liability for hosting third-party content include the
platforms’ recommendation and curation of that
content, consistent with Congress’s express policy
goals of promoting diverse discourse and free
expression online. Amici further believe that these
protections from liability have been essential to the
willingness of intermediaries to recommend the
digital works of independent creators to new
audiences.
Amici include the following:
Authors Alliance is a nonprofit organization
that advances the interests of authors who want to
serve the public good by sharing their creations
broadly. Its over 2,400 members are predominately
academic authors who have as their highest priority
seeing their writings reach wide and diverse
audiences, in many cases through platforms or other
forms of online distribution.
Brian Flanagan is the Chief Operating
Officer of Mythical Entertainment, an independent,
creator-led entertainment studio that produces
popular comedy, variety, culinary, and gaming shows
3
online, reaching an audience of 77 million YouTube
subscribers.
Dr. Bernard Hsu is a toxicologist and creator
of the Chubbyemu, a YouTube channel with more
than 2.7 million subscribers, which provides
educational medical analysis.
Harry Jho is the founder and CEO of Sockeye
Media LLC. He is also the co-creator of Mother Goose
Club, a YouTube channel with more than 9 million
subscribers, which introduces preschoolers to nursery
rhymes, original songs, and educational videos.
Jeremy Johnston is a family video blogger
(“vlogger”) known for his J House Vlogs channel,
which has 2.7 million subscribers on YouTube and
more than 3.3 billion views. J House Vlogs features
videos about his family, including his wife Kendra
and their five children.
Hassan Khadair is a comedian and
impressionist with 6.2 million followers on TikTok
and two million followers on his YouTube channel,
featuring reaction videos to Internet content.
Dr. Rena Malik is a urologist and pelvic
surgeon who posts weekly videos about urologic,
sexual, and bladder health on her YouTube channel
to her 1.3 million subscribers.
Jordan Maron is the creator of online alias
CaptainSparklez. Among other channels, he hosts a
4
YouTube channel with 11.4 million subscribers,
featuring videos of him playing popular video games.
Kevin McCarty is the creator of The
McCartys, a weekly video show on YouTube with
more than six million subscribers, featuring comedic
videos about his family.
Milad Mirg is the creator of food videos with
6.5 million TikTok followers and 4.6 million YouTube
subscribers. During the height of the COVID-19
pandemic, his videos became popular as he offered
behind-the-scenes looks at his fast-food job at
Subway.
Kati Morton is a licensed therapist and the
creator of a YouTube channel with 1.2 million
subscribers, showcasing mental-health videos to
educate and empower people.
Nick Nimmin is the creator of a YouTube
channel with more than 800,000 subscribers where
he provides tips, tools, and training to help content
creators grow their businesses online.
Sarina Peterson and Brianna Rapini are
two sisters on a mission to demystify high-school
biology with educational and humorous cartoons in
their Amoeba Sisters videos, a YouTube channel with
1.5 million subscribers.
Emily Scott Robinson is a singer-songwriter
who launched her career as a touring artist on the
5
Internet, by sharing her music for free on Bandcamp.
In 2021, her fans fully funded her new album project
in less than 24 hours via an online campaign.
Tim Schmoyer is the founder and creator of
Video Creators, a YouTube channel with 572,000
subscribers, and an agency that provides advice to
creators and brands on how to grow their audiences
on YouTube.
Rachel Smith is the creator of Rachel’s
English, a YouTube channel with 4.6 million
subscribers, featuring weekly video lessons teaching
viewers how to speak conversational English.
Devin Stone, a practicing lawyer, is the
creator of LegalEagle, a YouTube channel with 2.7
million subscribers. The channel’s mission is to
explain the laws and legal issues faced by people in
their everyday lives and bring legal literacy to the
public.
Alex Su is a lawyer with more than 200,000
followers across LinkedIn, Twitter, Instagram, and
TikTok. His content, which has received more than
100 million views, includes humorous videos, jokes,
and commentary about the legal industry.
Dr. Mikhail Varshavski is a family physician
and the creator of Doctor Mike, a YouTube channel
with 10.4 million subscribers, which provides biweekly entertaining and relatable videos about
common medical issues.
6
SUMMARY OF ARGUMENT
Providing immunity to intermediaries for the
display, recommendation, and curation of third-party
content is central to the purpose of Section 230 of the
Communications Act of 1934, enacted as part of the
Communications Decency Act of 1996 (“Section
230”)2: Section 230’s protections for Internet
platforms have enabled online creators—those who
make, share, and promote innovative expression and
diverse discourse online—to reach and grow new
audiences on the Internet. This Court should hold
that Section 230(c)(1)’s protections for intermediaries
hosting third-party content extend to the targeted
recommendation of that content by intermediaries.
Section 230(c)(1)’s protections have helped
shape the Internet into a democratic space that
promotes free expression, creativity, and innovation.
When enacting Section 230, Congress expressly
stated its intent to promote a free and open Internet
where diverse and independent expression thrives. In
the years since Section 230 was enacted, Congress has
acknowledged that expression, innovation, and
entrepreneurship online have flourished due, in no
small part, to the statute’s immunity provision.
2 47 U.S.C. § 230.
7
Platform
recommendations
allow
such
expression to flourish by elevating independent and
emerging creators’ works. Amici creators are
geographically
and
demographically
diverse
individuals who make creative works online, and
amicus Authors Alliance represents a wide and
diverse group of public-minded authors. These
creators use digital platforms to share their content.
Platform recommendations are essential for creators
to reach new and growing audiences, grow their small
businesses, and disseminate diverse discourse online.
Altering Section 230’s intermediary-liability
protections for recommendations could have
significant consequences for current and future
creators and for free expression online. Major
platforms might be less likely to host and promote
independent creators’ content. New and emerging
creators may be unlikely to reach new audiences. And
speech generally could be chilled online, hindering
Congress’ policy goals of fostering a free and open
Internet.
BACKGROUND
In the more than 25 years since Section 230 was
enacted, the Internet has become a center of
American life.3 Today’s Internet is defined by
3 In 2021, “93% of American adults use[d] the [I]nternet” with
“roughly three-quarters of American adults” having access to
internet service in their homes.
Pew Rsch. Ctr.,
Internet/Broadband
Fact
Sheet
(Apr.
7,
2021),
https://www.pewresearch.org/internet/fact-sheet/internet-
8
“millions of websites featuring user-created content.”4
“Virtually every successful online venture that
emerged after 1996 . . . relies in large part (or entirely)
on content provided by their users, who number in the
hundreds of millions, or billions.”5
Section 230 immunity has fostered a diverse
world of independent online creators. Before the
Internet, the media industry belonged to the
gatekeepers. Authors who wanted to publish their
works and share them with the world needed book
deals with publishing houses. Filmmakers who
wanted to make films needed cooperation from movie
studios. Today, independent authors, filmmakers,
and other creators no longer need a book publisher,
major studio, or other national distributor to make
and distribute their creative works. “Digital
broadband/.
See Christopher Cox, Section 230: A Retrospective, Ctr. for
Growth
and
Opportunity,
18
(Nov.
2022),
https://www.thecgo.org/research/section-230-a-retrospective/
[hereinafter “Section 230 Retrospective”].
4
5 David Post, A bit of Internet history, or how two members of
Congress helped create a trillion or so dollars of value, Wash.
Post
(Aug.
27,
2015),
https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/08/27/a-bit-of-internet-history-or-how-twomembers-of-congress-helped-create-a-trillion-or-so-dollars-ofvalue/.
9
technologies and platforms enable [c]reators to
bypass traditional institutional gatekeepers in the
movie, music, publishing, and broadcasting
industries.”6 Section 230 enabled this shift: Platforms
of all types and sizes can host, display, curate, and
recommend diverse user-created content without fear
of ruinous litigation.
Creators today create, make available, and share
a wide range of creative works online. Creators are
independent and diverse artists—including, among
others, authors, designers, photographers, video
producers, comedians, photojournalists, craftspeople,
teachers, doctors, lawyers, and other professionals—
who make and share “unique creative content,
whether in the form of video, film, art, music, design,
text, games, or any other media” to which “audiences
can access and respond.”7 More than 85 million people
in the United States consider themselves online
creators.8
The independent and diverse nature of these
creators has led to an explosion of free expression,
creativity, and innovation online. The subject matter
of creators’ content “runs the gamut from books,
6 Richard Florida, The Rise of the Creator Economy, Creative
Class Grp., 4 (Nov. 2022), https://bit.ly/3XKTizj [hereinafter
“Creator Economy Report”].
7 Id. at 8
8 See id.
10
music, and TV and film to news, business, politics,
science, and sports to popular culture, beauty and
fashion, lifestyle, parenting, home improvement,
travel, food and restaurants, fitness, pets, astrology,
parenting, humor, [and] games.”9 The “Creator
Economy” is estimated to be a $100 billion industry.10
Creators use a variety of platforms—such as
Discord, Facebook, Instagram, iTunes, LinkedIn,
Medium, Patreon, Pinterest, Reddit, Roblox, Spotify,
Spring, Substack, TikTok, Twitch, Twitter, and
YouTube—to share their works, reach audiences, and
build communities.11 For example, a creator might
make YouTube videos and engage viewers through
YouTube comments, convene her audiences with
Discord servers to build a community, manage
subscriptions and special-access content through
Patreon, sell merchandise with Spring, and promote
her content on Instagram, LinkedIn, Pinterest, and
Twitter. By using platforms to create, distribute,
engage with, promote, and monetize their works,
creators can reach a wide audience.12
9 Id. at 13.
10 See id. at 4.
11 See id. at 4, 18.
12 See, e.g., Kurt Kaufer, TikTok and Podcasts Join YouTube as
Leading Creator Platforms, AdAge (Dec. 8, 2022),
https://adage.com/article/media/tiktok-and-podcasts-joinyoutube-leading-creator-platforms/2456176 (“One of the key
growth and monetization strategies for creators has always been
11
Creators also have diverse goals. Many “are
devoted hobbyists who are pursuing creative
activities they are deeply passionate about.”13 “A
growing number are social and political activists, who
are principally motivated by the desire to serve causes
bigger than themselves and have social and political
impact.”14 Some creators, such as amicus Authors
Alliance’s members, prioritize seeing their works
reach as broad and diverse an audience as possible,
and write primarily to share knowledge and new
insights with the world.
Others seek to provide educational content and
build connections in underserved communities.
Amicus Rachel Smith, for example, makes
educational content for those learning English as a
second language. Her YouTube followers have told
her that her videos have helped them feel more
comfortable in everyday conversations and to earn job
promotions. Similarly, amicus Dr. Bernard Hsu
discusses case studies in medicine on his YouTube
to go multiplatform. Expanding their footprints to other
platforms allows them to showcase their creativity in new ways
and reach incremental audiences.”).
13 Creator Economy Report, supra, at 4; see, e.g., Chris Stokel-
Walker, Meet the workers who quit their jobs to become full-time
YouTubers,
Fast
Co.
(Dec.
21,
2022),
https://www.fastcompany.com/90828284/meet-the-workerswho-quit-their-jobs-to-become-full-time-youtubers (describing
hobbyists who left established careers to pursue their passions
and share videos on successful YouTube channels).
14 Creator Economy Report, supra, at 4.
12
channel, often exploring rare diseases, to shed light
on lesser-known medical risks for underserved
populations. And amicus Milad Mirg, a child of
Iranian immigrants, first started a YouTube channel
when he was eight years old to connect with others
and learn about entrepreneurship. Since then, his
growing platform has created a community for those
working in the fast-food industry.
Many creators are professionals who seek to have
a broader reach beyond their clinical work. For
example, amicus Kati Morton, a licensed therapist,
provides mental-health advice on her YouTube
channel. As a practicing therapist, she is limited in
her private practice to seeing 30 to 40 people per
week. But her YouTube channel has expanded her
ability to help people: She now also reaches more than
one million subscribers with her videos on YouTube.
Similarly, amicus Dr. Rena Malik is a urologist and
pelvic surgeon. On her YouTube channel, she shares
evidence-based content about bladder and sexual
health. She also reaches far more people online—
more than one million viewers per week—than she
reaches in her clinic, where she sees 40 to 50 patients
weekly.
For millions of creators, sharing their creative
works online also serves as their small businesses.15
In 2021, more than 425,000 Americans were full-time
15 See Creator Economy Report, supra, at 8, 9, 16.
13
creators.16 Many creators “monetize their efforts
through memberships, subscriptions, digital tips,
advertising, brand partnerships, endorsements,
direct funding from platforms, and other forms of
digital payments.”17 Other have received substantial
advances when platforms try “to lure high-profile
figures away from traditional media companies.”18
For example, amicus Kevin McCarty, a former
teacher, hosts a comedy video channel featuring his
family and makes a living through brand deals on
social media and ad revenue on YouTube. In the past
year, his channel has grown to more than six million
subscribers and received more than eight billion
views. His business has generated more than a
million dollars in revenue. Similarly, Jordan Maron,
the creator of popular gaming videos as
CaptainSparklez, has accumulated between four to
five billion views across his channels in the past 12
years, allowing him to become a full-time creator and
hire employees to continue expanding his business.
For many creators, building a successful small
business online is the modern American dream: an
opportunity to financially support themselves
See Oxford Econ., The State of The Creator Economy:
Assessing the Economic, Societal, and Cultural Impact of
YouTube in the US in 2021, 4 (July 22, 2021),
https://bit.ly/3WgkS6k.
16
17 Creator Economy Report, supra, at 8.
18 Id. at 16.
For example, newsletter platform Substack “paid a
$250,000 advance to attract the blogger Matthew Yglesias from
Vox and a $430,000 contract for two years to attract Danny
Lavery, who founded the humor blog The Toast.” Id.
14
through their self-expression while also having a
broader impact on society as a whole.
ARGUMENT
I.
Congress intended Section 230 to foster
a free Internet where diverse and
independent expression thrives.
When Congress enacted Section 230 in 1996, it
recognized the importance of free expression for
Americans and the potential for the Internet to
encourage debate and discourse in American society.
It therefore passed legislation to immunize
intermediaries to foster creativity and innovation
with minimal government interference.
Congress made its intent clear in the text of the
statute. Section 230’s preamble explains that “[t]he
rapidly developing array of Internet and other
interactive computer services available to individual
Americans represent[s] an extraordinary advance in
the availability of educational and information[al]
resources to our citizens.”19 The preamble further
states that “[t]he Internet and other interactive
computer services offer a forum for a true diversity of
political discourse, unique opportunities for cultural
development, and myriad avenues for intellectual
19 47 U.S.C. § 230(a)(1).
15
activity.”20 Congress recognized that Americans
increasingly were “relying on interactive media for a
variety of political, educational, cultural, and
entertainment services”—a statement that is even
more true today.21
Based on these findings, Congress identified a
broader policy goal of “promot[ing] the continued
development of the Internet and other interactive
computer services and other interactive media” and
“preserv[ing] the vibrant and competitive free market
that presently exists for the Internet and other
interactive computer services, unfettered by Federal
or State regulation.”22 Congress wanted the Internet
to flourish with minimal government interference,
emphasizing that it “wanted to encourage the
unfettered and unregulated development of free
speech on the Internet, and to promote the
development of e-commerce.”23
But Congress also recognized that “[t]he amount
of information communicated via interactive
computer services is . . . staggering. The specter of tort
liability in an area of such prolific speech would have
20 Id., § 230(a)(3).
21 Id., § 230(a)(5).
22 Id., § 230(b)(1)–(2).
Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003),
superseded by statute as stated in RLI Ins. Co. v. Langan Eng’g,
834 F. App’x 362 (9th Cir. 2021).
23
16
an obvious chilling effect.”24 Because “[i]t would be
impossible for service providers to screen each of their
millions of postings for possible problems, interactive
computer service providers might choose to severely
restrict the number and type of messages posted”
rather than face potential liability.25
Congress “considered the weight of the speech
interests implicated and chose to immunize service
providers to avoid any such restrictive effect.”26
Congress therefore decided to place liability for any
tortious speech on the speaker, not on the third-party
intermediary hosting that speech. That is,
“[Congress] opted not to hold interactive computer
services liable for their failure to edit, withhold or
restrict access to offensive material disseminated
through their medium.”27 Congress thus “made a
policy choice . . . not to deter harmful speech through
the separate route of imposing tort liability on
companies that serve as intermediaries for other
parties’ potentially injurious messages.”28
Congress enacted the necessary immunity in
Section 230(c)(1), which states that “no provider or
24 Zeran v. AOL, Inc., 129 F.3d 327, 331 (9th Cir. 1997).
25 Id.
26 Id.
27 Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.C. Cir. 1998).
28 Zeran, 129 F.3d at 330–31.
17
user of an interactive computer service[29] shall be
treated as the publisher or speaker of any information
provided by another information content provider.”30
“Subject to certain delineated exceptions, . . . Section
230(c)(1) thus shields a defendant,” such as an online
platform, “from civil liability when: (1) it is a ‘provider
or user of an interactive computer service,’ as defined
by § 230(f)(2); (2) the plaintiff’s claims ‘treat[]’ the
defendant as the ‘publisher or speaker of information,’
id. § 230(c)(1); and (3) that information is ‘provided
by’ an ‘information content provider,’ id. § 230(f)(3),
other than the defendant interactive computer
service,”31 such as a user posting on the platform.32
“In light of Congress’s objectives, the Circuits are in
general agreement that the text of Section 230(c)(1)
should be construed broadly in favor of immunity.”33
29 An “interactive computer service” is “any information service
system” or “access software provider,” including software or a
tool that can “filter, screen, allow, or disallow content; pick,
choose, analyze, or digest content; or transmit, receive, display
forward, . . . organize, [or] reorganize . . . content.” 47 U.S.C.
§ 230(f)(2), (4).
30 Id., § 230(c)(1).
Force v. Facebook, Inc., 934 F.3d 53, 63–64 (2d Cir. 2019)
(collecting cases).
31
While not directly at issue in this case, Congress also
recognized the importance of allowing platforms to moderate the
content they host to keep their platforms safe. See 47 U.S.C.
§ 230(c)(2).
32
33 Id.
18
Since enacting Section 230, Congress has
acknowledged the centrality of the law to “the free
and open Internet.”34 Section 230 “promotes free
expression and innovation by protecting online
platforms from a range of laws that might otherwise
hold them unfairly accountable for everything their
individual users may say and do online.”35 In
particular, Congress has acknowledged that Section
230 “has encouraged innovations ranging from the
earliest online bulletin board systems to today’s
platforms for social media and user-generated
video.”36 “For America, [S]ection 230 is very likely the
reason we have a multitude of billion-dollar internet
employers and the Europeans have exactly zero.”37
“Without Section 230’s clear limitation on liability, it
is difficult to imagine that most of the online services
on which we rely every day would even exist in
anything like their current form.”38 In sum: “Without
34 Allow States and Victims to Fight Online Sex Trafficking Act
of 2017, 164 Cong. Rec. S1849, S1860 (Mar. 21, 2018) (Statement
of U.S. Sen. Patrick Leahy).
35 Id.
36 Id.
37 Id. at S1870 (Statement of U.S. Sen. Ron Wyden).
Section 230 Retrospective, supra, at 22.
Former U.S.
Representative Christopher Cox co-authored Section 230 with
U.S. Senator Ron Wyden (then U.S. Representative Wyden). See
id. at 1.
38
19
the protections of [Section] 230, the internet would be
a very different place today.”39
II.
Recommendations contribute to the
flourishing of free expression, creativity,
and innovation on the Internet.
Petitioners contend that “recommendations”
should “fall outside the scope of [S]ection 230(c)(1).”40
But they ignore how Section 230’s protections for
platform curation have created a new economy of
creators who depend on their ability to share
innovative and diverse discourse online, consistent
with Congress’s stated policy goals in enacting
Section 230. Because platforms trust that their
recommendations of third-party content are
immunized by Section 230(c)(1), they elevate and
recommend creative works from diverse and
independent creators. Many online creators owe their
success in large part to digital platforms’
recommendation of their works.
Because Section 230(c)(1) immunizes platforms
of all types and sizes from ruinous and costly
litigation, platforms host, display, curate, and
recommend third-party content to their users without
fear of potential liability. Platforms curate the billions
of pieces of user-created content on their services by
39 164 Cong. Rec. S1849, supra, at S1860 (Statement of U.S. Sen.
Leahy).
40 Pets. Br. at 29.
20
providing personalized recommendations for content
that users might find interesting, relevant, or useful
to them specifically.
Such curation comes in many forms. For
example, platforms “curate” information through
search results by ranking results by usefulness. If a
high-school biology student searches for “cell mitosis”
on YouTube, she might find amici Sarina Peterson’s
and Brianna Rapini’s Amoeba Sister videos, which
would help her understand why cells divide and
multiply. Platforms also display information on
homepages, sidebars, and timelines that they
anticipate is relevant or useful to a user based on
their prior use of a platform. For example, TikTok’s
“For You” feed provides videos that it anticipates a
user will enjoy based on their prior viewing and usage
history.41 After watching a video, a YouTube user
might also see videos on similar topics on their
homepage or next in their queue.42 Other platforms,
like Facebook and Instagram, display information to
41 See TikTok, How TikTok recommends videos #ForYou (June
18,
2020),
https://newsroom.tiktok.com/en-us/how-tiktokrecommends-videos-for-you; Ben Smith, How TikTok Reads
Your
Mind,
N.Y.
Times
(Dec.
5,
2021),
https://www.nytimes.com/2021/12/05/business/media/tiktokalgorithm.html.
See
YouTube,
Recommended
https://www.youtube.com/howyoutubeworks/productfeatures/recommendations/.
42
videos,
21
a user in their feed based on their prior use of the
service.43
Creators reach new audiences that they might not
otherwise be able to reach based on these various
forms of platform curation. For example, 24-year-old
Steve Lacy “edged [megastar] Harry Styles out of the
No. 1 position on the Billboard charts in the fall of
2022” after Mr. Lacy’s single “Bad Habit” went viral
through recommended video clips on TikTok.44
Similarly, YouTube launched the careers of
mainstream superstars like Justin Bieber who were
discovered after becoming popular on the platform.45
In the context of textual works, writers who publish
on platforms dedicated to fan fiction46 have gone on
to have successful mainstream literary careers after
being “discovered” by those in the trade publishing
See Facebook, What are recommendations on Facebook?,
https://www.facebook.com/help/1257205004624246; Facebook,
What
are
recommendations
on
Instagram?,
https://www.facebook.com/help/313829416281232.
43
44 Creator Economy Report, supra, at 7.
Fresh Air, How YouTube became one of the planet’s most
influential media businesses, NPR (Sept. 8, 2022),
https://www.npr.org/2022/09/08/1121703368/how-youtubebecame-one-of-the-planets-most-influential-media-businesses.
45
Fan fiction includes “stories involving popular fictional
characters that are written by fans and often posted on the
Internet.” Fan fiction, Merriam-Webster’s Dictionary (last
updated
Jan.
11,
2023),
https://www.merriamwebster.com/dictionary/fan%20fiction.
46
22
industry.47 Digital platforms thus enable outsiders to
break through in ways that would have been
“virtually unimaginable under the traditional
music/entertainment industry.”48
Amicus Kati Morton has experienced how the
power of recommendations on platforms can help
those in need. Ms. Morton started her mental-health
awareness YouTube channel over 10 years ago. Over
that time, she has gained one million subscribers and
reached people all over the world. She believes that
she never would have been able to reach a global
audience without the power of curation on YouTube,
social media, and the Internet. Members of her online
community have told her that they found her channel
through YouTube recommendations and when
searching for answers to mental-health questions.
Without platforms hosting and recommending
accurate, helpful content, Ms. Morton worries that a
person struggling with mental-health issues would
look for answers and fail to find them.
Similarly, online recommendations have fueled
significant viewership growth for amicus Jordan
Maron, creator of popular gaming videos under his
alias CaptainSparklez. Mr. Maron has created
47 See, e.g., Namera Tanjeem, 50 Shades and More: 11 Published
Fan
Fiction
Books,
BookRiot
(Sept.
https://bookriot.com/published-fanfiction-books/.
48 Creator Economy Report, supra, at 7.
12,
2019),
23
gaming content for the past 12 years and has watched
the evolution of the online video space as it has gone
from niche to mainstream. In that time, he has
accumulated four to five billion views across his
channels on different platforms. Despite having an
older YouTube channel with an established audience,
he still finds that around 50 percent of his viewership
comes from accounts that are not subscribed to his
channel. Content-recommendation mechanisms drive
that growth. While he has seen fluctuations in his
viewership in the past 12 years, he believes that his
audience would not exist if not for YouTube and other
platforms recommending his videos to new people.
Meanwhile, amicus Milad Mirg believes
recommendations are the single most valuable
contributor to his creator business, allowing him to
build a community online. When Mr. Mirg started
sharing his fast-food industry work experiences on
social media, he unexpectedly created a community of
people who also work in the field. Few social media
users, if any, search for “Subway worker” or “working
a fast-food job.” Instead, he understands that
recommendations enabled him to find, connect with,
and help people like him. Mr. Mirg reached one
million subscribers on YouTube in the first 24 days of
posting about his job at Subway. He also received
hundreds of thousands of comments and messages
from people telling him that they were able to look at
their profession—which has historically been looked
down upon—in a whole new light. Viewers told him
that they began to find their jobs in fast food more fun
24
because Mr. Mirg offered them a shift in perspective
about the industry. He believes none of this would
have been possible without recommendations.
The same is true for amicus Hassan Khadair, a
comedy creator who uses puppetry in his comedic acts
on YouTube. He believes that he would not have been
able to garner a significant audience online without
YouTube’s recommendations or TikTok’s “For You”
page. Instead, he now reaches eight million followers
across social media and has had four billion views.
This success is especially important for Mr. Khadair
who struggled to connect with others as an Asian
American growing up in post-9/11 America. Today,
thanks to social media recommendations, he believes
that he can be the entertainment role model he wishes
he had had when he was a child.
Amicus Dr. Rena Malik likewise believes that,
without recommendations, it would have been nearly
impossible for her to find interested viewers, reach a
sizeable audience, and widely share evidence-based
information. As a urologist, Dr. Malik creates
evidence-based videos about bladder health, sexual
health, and urologic conditions. Her videos debunk
commonly held misconceptions, offer information
viewers might not have known they needed, and
answer questions viewers might be too embarrassed
to ask. Her YouTube channel has reached nearly 200
million views, empowered viewers to talk about their
health, and encouraged them to seek appropriate
medical care when necessary. Dr. Malik believes that,
25
because so much content is shared online every day,
it would be nearly impossible for her to find interested
followers without recommendations. She also believes
that recommendations are useful for viewers: It is
important for people searching for medical
information to be able to find accurate,
comprehensive, evidence-based content. Without
recommendations, users would struggle to sift
through the billions of pieces of content to find the
information useful and relevant to them.
Similarly, amicus Dr. Mikhail Varshavski, a
board-certified family medicine physician, shares
evidence-based educational content in relatable and
popular formats to engage younger generations to
learn about their health. Dr. Varshavski has seen
how the rise in misinformation and low health
literacy led his patients to make poor decisions about
their health. Being able to break down complex
scientific concepts and debunk misinformation for 50
million viewers monthly on Doctor Mike makes him a
much more effective physician. He believes that this
opportunity has only been possible for him because
platforms, benefiting from Section 230, recommend
interesting and credible content to viewers for them
to enjoy.
Amicus Rachel Smith, the creator of the YouTube
channel Rachel’s English, has benefited from
YouTube’s search functionality—another kind of
platform recommendation. When displaying search
results, platforms curate information: That is, they
26
display information relevant to the search requests by
ranking results by anticipated usefulness to the
searcher. This is, in effect, another form of
recommendation. Ms. Smith makes videos with
conversational speaking lessons for those learning
English as a second language. People learning
English who recognize that they need help with their
pronunciation or with listening comprehension often
search online for resources to help. Rachel’s audience
has grown to more than 4.5 million subscribers
through search-based recommendations.
Similarly, amici Sarina Peterson and Brianna
Rapini believe that the search functionality on
YouTube drove their channel’s early success. The
sisters launched their YouTube channel, Amoeba
Sisters, to demystify biology, including topics such as
DNA replication, cell cycles, biomolecules, and cell
mitosis. In the early days of their channel, a large
portion of their views came from users searching such
terms. While many users now search “Amoeba
Sisters” to find their videos, they relied on biology
keyword searches to initially find an audience.
Platform recommendations also benefit niche
creators whose content, like that of academic authors,
might not appeal to everyone. Amicus Authors
Alliance’s diverse members have benefited from
Section 230’s protections, which have enabled them to
find and grow audiences for their works online.
Academic authors, as well as other writers without an
established readership, often struggle with visibility.
27
A platform’s ability to recommend their content to
those interested in it helps those authors reach
readers and accrue reputational capital. In this way,
platform recommendations have enabled a wider and
more diverse group of authors to disseminate their
works and share new insights with the world.
Similarly, amicus Emily Scott Robinson believes
that she owes her career as a touring artist to the
Internet. From the beginning of her independent
music career in 2015, she shared her music for free on
Bandcamp and YouTube. Since then, she has grown a
community of fans through recommendations on
YouTube, Instagram, Spotify, and other streaming
services. Her fandom has helped her break into the
music scene, gain national recognition, and sign a
record deal. She believes that being able to freely
share and distribute her music on the Internet—and
reach potentially interested listeners through
recommended feeds on music platforms—has been
essential to her career as a musician.
Similar to less-established authors and
musicians, amicus Dr. Bernard Hsu has produced
medical videos for seven years, but found that his
videos only began reaching viewers once platforms
began recommending them. Now his videos get
millions of views. He believes that his videos, which
often explore rare diseases and poisonings, couldn’t
have had a tangible impact without a large audience.
Instead, the popularity of some of Dr. Hsu’s videos has
helped shed light on toxic exposures that lead to
28
breast cancer and underrecognized cancers that
disproportionately affect young men of African
descent. As a result of one of his videos on a rare sickle
cell-associated kidney cancer, research studies on the
disease, which had previously struggled to find
participants, became fully enrolled. Dr. Hsu believes
that, without platform recommendations, he would
not have been able to have this degree of impact.
III.
Altering Section 230’s intermediaryliability protections for
recommendations may have dire
consequences for current and future
creators, chilling the free flow of ideas on
the Internet.
Disturbing Section 230’s current protections for
recommendations
could
have
significant
repercussions for content creators. Many platforms
may be less willing to recommend, curate, or
otherwise surface content if they could face liability
for doing so. This would harm creators and the free
flow of ideas online in at least three ways.
First, independent and emerging creators could
see their audiences shrink. Without Section 230(c)(1)
immunity for recommendations, platforms may be
less likely to recommend the works of lesser-known or
new creators, preferring instead to display, if any,
established brands in an effort to reduce the risk of
incurring liability. Some platforms today already
distinguish between “verified” users (often major
29
brands, news organizations, and celebrities) and
everyone else. This gap might become an abyss if
Section 230(c)(1) protections change. For example, a
platform may choose to elevate, say, news articles
from major national publications like The New York
Times, The Wall Street Journal, and The Washington
Post, but opt not to promote articles from local or
independent newspapers and journalists because it
lacks the resources to verify the news information.
This would limit the reach of those local or
independent newspapers and journalists, potentially
further eviscerating local and independent news
media.
Similarly, without Section 230(c)(1) protections
for recommendations, platforms may promote fewer
smaller, more independent, and newer creators and
their creative works. This would limit newer creators
to their homegrown audiences in favor of corporate
channels perceived to be “pre-vetted”—in other
words, safer and more reliable with respect to content
moderation. Platforms would become traditional
gatekeepers and curtail the free flow of diverse
discourse online. Amicus Mr. Maron believes, for
example, that, if platforms change the way in which
they host and recommend content, his established
audience of nearly 12 million would likely survive.
But he acknowledges that, for others taking a risk to
build a new business or trying to find a foothold
online, changes to recommendation mechanisms
could be immediately disastrous.
30
Amicus Harry Jho, for example, remembers a
time before platforms existed when it was difficult for
emerging and independent creators to share their
works. As former teachers, Mr. Jho and his wife
started Mother Goose Club to revive nursery rhymes
as teaching tools for preschoolers. They spent years
trying, with limited success, to get their content
distributed by traditional media platforms. But
digital media platforms changed everything. Over the
past 15 years, the Jhos have built a network of
channels that have amassed over 30 billion views and
30 million subscribers. They have also produced liveaction, animation, gameplay, and how-to videos for
preschoolers and their parents, as well as over a dozen
music albums. They’ve rejoiced as families and
schools around the world have used their songs to
teach children English. Without social-media
platforms welcoming and promoting newcomers like
the Jhos, Mother Goose Club might never have been
able to help children around the world.
Moreover,
platform
changes
prioritizing
established brands over lesser-known independent
creators might also undermine creators’ small
businesses—shrinking many creators’ income and
their ability to employ others. As amicus Ms. Morton’s
YouTube channel has grown, she has hired four
people to assist with content ideas, editing, and
scheduling. She has also written two books and been
invited to speak all over the world. Amicus Dr.
Varshavski too has hired both full- and part-time
employees to help him produce his show. Similarly,
31
amicus Mr. McCarty acknowledges that, without
internet platforms recommending his family’s videos,
he would not be able to provide for his family as a fulltime creator. Meanwhile, after years of developing
his own YouTube channel, amicus Tim Schmoyer was
able to launch an agency, Video Creators, to help
thousands of other YouTubers grow their audience
online, too.
Without
recommendation
mechanisms
distributing creators’ work to potentially interested
users, the creator economy would likely shrink:
Aspiring creators may have fewer incentives or
opportunities to launch their channels, and current
creators might see their viewership, impact, and
businesses diminish, leading to less diverse discourse
online.49
Second, disturbing Section 230’s current
protections for recommendations could reduce the
flow of controversial, intellectual, or innovative free
49 Platform changes to curation mechanisms have previously had
an immediate and real impact on creators’ small businesses. See,
e.g., Becky Hughes, Food Businesses Lose Faith in Instagram
After Algorithm Changes, N.Y. Times (Mar. 22, 2022),
https://www.nytimes.com/2022/03/22/dining/instagramalgorithm-reels.html. For example, when Instagram changed its
algorithm to prioritize short-form videos in early 2022,
“[a]ccounts that [didn’t] regularly post the short-form videos
appear[ed] below those that ha[d] embraced” those videos,
“resulting in a notable drop in engagement in posts—and, in
turn, sales—for many small businesses.” Id.
32
expression (or content that is perceived as such by an
algorithm).
Facing
potential
liability
for
recommendations, platforms might be pressured to
moderate the content itself more aggressively, which
would also harm creators. Closely reviewing every
video or post that a platform might recommend would
be onerous, and likely impossible, for most platforms.
Instead, platforms might opt for arbitrary or blanket
moderation for recommendations. They may
recommend only content falling into categories where
those platforms anticipate the liability risks might be
the lowest. For example, platforms might decide to
only recommend news videos from major news
organizations, or might decide not to recommend any
news or news-related videos at all. Another platform
might opt to recommend only videos about
noncontroversial subjects—say, videos featuring
cosmetics tutorials, cute animals, or “unboxing” of
popular children’s toys. Platforms for sharing written
work might similarly take a conservative approach,
recommending writings by established trade authors
and further entrenching major players while harming
academic or less-established authors. This, too, would
harm creators, because platforms would promote only
the most generic, sanitized, and mainstream content
while disregarding more specialized, challenging, or
valuable content.
Such content moderation might particularly
disadvantage creators whose content is difficult for a
platform (and its algorithmic curation system) to
33
distinguish from harmful content.50 For example,
news reporting or commentary about terrorist groups
and informational videos about sexual-health
resources might be mistaken for harmful content and
excluded
from
algorithmic
recommendations.
Creators, storytellers, and educators seeking to
provide information about controversial topics would
become unable to reach those who might benefit from
the information.
For smaller, emerging platforms that have fewer
resources for nuanced content moderation, arbitrary
moderation becomes even more likely. This is
particularly troubling because the ability to share
information about debated and less-explored topics is
essential for a vibrant democratic discourse, as
recognized by Congress in enacting Section 230 and
as reflected by the importance of First Amendment
values in American society. Pressure to limit content
recommendations for fear of litigation could hamper
the free flow of creators’ speech and ideas online.
50 Due to reliance on algorithmic and autonomous filtering
to
curate billions of pieces of user-created content, even wellmeaning content moderation can have unintended impacts. For
example, one study reports that YouTube’s algorithmic
moderation of South Korean videos deprioritized political speech
in an effort to minimize hate speech on the platform. See Kitae
Kim and Shin-Il Moon, When Algorithmic Transparency Failed:
Controversies Over Algorithmic-Driven Content Curation in the
South Korean Digital Environment, Am. Behav. Scientist, 850–
51 (2021).
34
Instead, today, recommendations allow a
diversity of speakers and speech to flourish. For
amicus Mr. Mirg, this is essential. He believes
recommendations promote viewers’ freedom to choose
who they want to learn from and what they want to
learn. Without recommendations, he worries that our
collective perspectives on every topic would be more
limited. Online discourse today is not restricted to a
few perspectives, cherrypicked by social-media
companies seeking to minimize potential liability.
Rather,
creators’
success
is
driven
by
recommendations based on users’ own interests
allowing a more diverse marketplace of ideas, because
users themselves come to social media with different
intellectual and cultural interests and perspectives.
Similarly, amicus Dr. Varshavski believes that the
Internet today allows for creativity, diversity, and
accuracy that might not otherwise exist. From his
perspective, to be successful in media in the past, a
creator had to please a producer; but now, in this
democratized modern world, creators answer to their
audiences instead.
Third, changes to Section 230(c)(1) would
ultimately entrench dominant platforms and limit
smaller ones and new entrants. This would harm
creators, too, as they rely on unique and independent
platforms to reach niche and targeted audiences, and
rely on competition among platforms for new and
better opportunities. Smaller platforms would likely
face more pressure to limit recommendations or,
alternatively, would fear spending hundreds of
35
thousands of dollars on litigation, which is not
feasible for smaller or nascent enterprises.51
Investors, too, may be hesitant to invest in developing
new types of platforms—a particular concern for
Section 230’s drafters.52 This would likely further
entrench dominant players and deter new and unique
platforms, ultimately leading to fewer and less
diverse platforms for creators to share their
expressive works.
Amicus Alex Su has experienced the value of
competition among platforms for creators. Mr. Su first
built his audience on LinkedIn when the professionalnetworking platform was emerging as a content
competitor to other social media platforms.
Historically, LinkedIn was viewed as an online
resume database, Su says; but around 2016, it also
began delivering more compelling content to users.
Mr. Su believes that, at the time, it would have been
difficult for him to build an audience on more
51 See Engine, Startups, Content Moderation, & Section 230, 4–5
(2021), https://bit.ly/3XnGG15 (explaining that litigation costs
can range from $3,000 to more than $500,000 depending on
progression of case).
52 See 164 Cong. Rec. S1849, supra, at S1870 (Statement of Sen.
Ron Wyden) (“If internet startups are no longer protected by
[S]ection 230 and they are exposed to the threat of near constant
litigation, it is going to be a lot tougher for them to secure
injections of funding and grow. Fewer venture capital firms will
be willing to risk their deep pockets if their early-round
investments are swallowed up by legal fees instead of paying for
coders.”).
36
mainstream platforms that were already crowded
with established creators, like YouTube. But, on an
emerging content platform like LinkedIn, Mr. Su was
able to quickly grow an audience. While he later
expanded to other platforms, he believes that the
existence of a new entrant to the social-media
landscape allowed him to reach a niche audience—
lawyers—through
recommendations
on
that
platform. He experienced the same dynamic when he
joined TikTok in 2020, when the platform was still a
newcomer on the American social-media scene. Once
again, Mr. Su explains, he gained an audience quickly
because there were few TikTok creators posting lawrelated content at the time.
Ultimately, removing intermediary immunity for
recommendation and curation would shift the
Internet away from its more democratic roots and
likely foreclose opportunities for newer, emerging,
and independent creators to find audiences. This
would hurt Internet users—effectively, all of us—
because they would be less likely to find relevant,
thought-provoking, and entertaining content online.
It also would undermine Congress’s policy of
developing the Internet as “a forum for a true
diversity of political discourse, unique opportunities
for cultural development, and myriad avenues for
intellectual activity.”53
53 See 47 U.S.C.
§ 230(a)(3).
37
CONCLUSION
For the reasons set forth above, this Court
should affirm the decision of the Ninth Circuit.
Respectfully submitted,
BENJAMIN W. BERKOWITZ
Counsel of Record
STEVEN A. HIRSCH
MATAN SHACHAM
JULIA L. GREENBERG
KEKER, VAN NEST & PETERS, LLP
633 Battery Street
San Francisco, CA 94111
Telephone: (415) 391-5400
Facsimile: (415) 397-7188
bberkowitz@keker.com
Counsel for
Amici Curiae
January 19, 2023
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