Amicus Curiae Brief — Jane Doe, Petitioner v. Facebook, Inc.

Supreme Court briefOct 27, 2021

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No. 21-459

IN THE

___________

JANE DOE,

Petitioner,

FACEBOOK, INC.,

___________

Respondent.

On Petition for a Writ of Certiorari to

the Supreme Court of Texas

__________

BRIEF OF THE LIBERTY JUSTICE CENTER

AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

__________

October 27, 2021

Daniel R. Suhr

Counsel of Record

Brian K. Kelsey

Mallory Reader

LIBERTY JUSTICE CENTER

141 W. Jackson Blvd.

Suite 1065

Chicago, IL 60604

(312) 637-2280

dsuhr@libertyjusticecenter.org

bkelsey@libertyjusticecenter.org

mreader@libertyjusticecenter.org

QUESTION PRESENTED

Whether Section 230 of the Communications

Decency Act provides immunity from suit to internet

platforms in any case arising from the publication of

third-party content, regardless of the platform’s own

misconduct.

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF CONTENTS ............................................. ii

TABLE OF AUTHORITIES ...................................... iii

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

INTRODUCTION AND SUMMARY OF REASONS

TO GRANT THE PETITION...................................... 1

REASON TO GRANT THE PETITION ..................... 3

I. THE PREVAILING INTERPRETATION OF

SECTION 230 IMPROPERLY IMMUNIZES THE

MISCONDUCT OF SOCIAL MEDIA

PLATFORMS. ........................................................ 3

CONCLUSION ............................................................ 8

iii

TABLE OF AUTHORITIES

Cases

Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th

Cir. 2006) ................................................................. 5

Carafano v. Metrosplash.com, Inc., 339 F.3d 1119

(9th Cir. 2003) .......................................................... 5

Cohen v. Facebook, 252 F. Supp. 3d 140 (E.D.N.Y.

2017) ......................................................................... 7

Doe ex rel. Roe v. Backpage.com, LLC, 104 F. Supp.

3d 149 (D. Mass. 2015) ............................................ 4

Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008)... 5

Fields v. Twitter, 200 F. Supp. 3d 964 (N.D. Cal.

2016) ......................................................................... 7

Gauck v. Karamian, 805 F. Supp. 2d 495 (W.D. Tenn.

2011) ......................................................................... 6

Jane Doe No. I v. Backpage.com, LLC, 817 F.3d 12,

(1st Cir. 2016) .............................................. 2, 3, 4, 5

Jones v. Dirty World Entm’t Recordings LLC, 755

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

S.C. v. Dirty World, LLC, No. 11-CV-00392, 2012

U.S. Dist. LEXIS 118297 (W.D. Mo. March 12,

2012) ......................................................................... 6

Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d

413 (1st Cir. 2007) ................................................... 5

Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir.

1997). ........................................................................ 3

Statutes

18 U.S.C. § 1591 .......................................................... 5

18 U.S.C. § 1595 .......................................................... 5

18 U.S.C. § 2339(b)...................................................... 7

18 U.S.C. § 2421(a)...................................................... 5

47 U.S.C. § 230(a)(3) ................................................... 8

47 U.S.C. § 230(c)(1).................................................... 2

47 U.S.C. § 230(e)(5) ................................................... 5

Other Authorities

Danielle Keats Citron & Benjamin Wittes, The

Problem Isn’t Just Backpage: Revising Section 230

Immunity, 2 Geo. L. Tech. Rev. 453 (2018) .... 5, 6, 8

David S. Ardia, Free Speech Savior or Shield for

Scoundrels: An Empirical Study of Intermediary

Immunity Under Section 230 of the

Communications Decency Act, 43 Loy. L.A. L. Rev.

373 (2010)................................................................. 2

Kashmir Hill, The Dirty Business: How

Gossipmonger Nik Richie Stays Afloat, FORBES

(Nov. 11, 2010, 8:37 PM), https://permaarchives.org/warc/20170909184903/https://www.for

bes.com/ .................................................................... 6

Kate Knibbs, Cleaning Up the Dirty, RINGER (Apr.

19, 2017, 12:21 PM), https://perma.cc/WF3X-K9EM

.................................................................................. 6

Kira M. Geary, Comment: Section 230 of the

Communications Decency Act, Product Liability,

and a Proposal for Preventing Dating-App

Harassment, 125 Penn. St. L. Rev. 501 (2021) ...... 7

Zack Bedell & Benjamin Wittes, Tweeting Terrorists,

Part I: Don’t Look Now but a Lot of Terrorist

Groups Are Using Twitter, LAWFARE (Feb. 14,

2016, 5:05 PM), https://perma.cc/JFN4-LQJZ ....... 7

INTEREST OF AMICUS CURIAE1

The Liberty Justice Center is a nonprofit, publicinterest litigation firm that seeks to defend free

speech, expand school choice, secure the rights of

workers, and protect all Americans from government

overreach. We are nonpartisan, do not accept

government funding, and do not support or promote

political campaigns. Our groundbreaking lawsuits

stake out Americans’ constitutional rights.

To support these goals, the Liberty Justice Center

began bringing suits on behalf of our clients who have

had their Freedom of Speech restricted by social

media platforms. Regardless of the cause of action,

Section 230 is being used by these platforms as a

defense to claim absolute immunity from suit. The

Liberty Justice Center’s interest in this case is to have

the Court clarify the scope of internet platforms’

immunity from suit under Section 230 of the

Communications Decency Act.

INTRODUCTION AND SUMMARY OF

REASONS TO GRANT THE PETITION

“What many consider the largest public space in

human history is not public at all.” David S. Ardia,

Free Speech Savior or Shield for Scoundrels: An

Empirical Study of Intermediary Immunity Under

Section 230 of the Communications Decency Act, 43

1 No counsel for a party authored any part of this brief, and no

person other than amicus curiae, its members, or its counsel

made a monetary contribution intended to fund its preparation

or submission. Amicus curiae timely provided notice of intent to

file this brief to all parties, and all parties have consented to the

filing of this brief.

Loy. L.A. L. Rev. 373, 377 (2010). The Internet—a

communication network available to anyone with

computer access—contains no true “public forum.” Id.

Rather, it is a network of “privately owned Web sites,

privately owned serves, privately owned routers, and

privately owned backbones.” Id. This does not mean

that these private intermediaries are free from all

limits: “civil and criminal liability may attach to the

content they intermediate.” Id.

The pervasiveness of internet platforms and the

power they hold over modern speech make them

attractive targets for both regulators and litigants.

But targeting internet platforms comes with risks for

both the intermediary and for America’s system of free

expression. Id. at 379. Mindful of this, Congress

stepped in by enacting Section 230 (“Section 230”) of

the Communications Decency Act (“CDA”) in 1996.

Section 230 provides that: “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).

“In deceptively simple language,” Section 230

“sweep[s] away the common law’s distinction between

publisher and distributor liability[.]” Ardia, supra, at

377, 379. In doing so, it grants operators of interactive

websites “broad protection from claims based on the

speech of third parties.” Id. The “broad construction

accorded to section 230 as a whole has resulted in a

capacious conception of what it means to treat a

website operator as the publisher or speaker of

information provided by a third party.” Jane Doe No.

I v. Backpage.com, LLC, 817 F.3d 12, 19 (1st Cir.

2016), cert. denied, 2017 U.S. LEXIS 441 (claims

related to websites’ active participation in human

trafficking enterprise barred by Section 230).

As this Brief will explain, the prevailing

interpretation of Section 230 improperly immunizes

the misconduct of internet companies—especially

social media platforms. The Court should take this

opportunity to define the proper, narrow scope of

Section 230 immunity based on the text of the statute.

REASON TO GRANT THE PETITION

The prevailing interpretation of Section

230

improperly

immunizes

the

misconduct of social media platforms.

The claim that Section 230 has operated to shield

website operators from lawsuits arising out of their

own misconduct is not hypothetical. This is because

Section 230 has been read so that “lawsuits seeking to

hold a 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[.]” Zeran v. Am. Online,

Inc., 129 F.3d 327, 330 (4th Cir. 1997).

For example, the First Circuit allowed Section 230

to be used as a successful defense against the claim

that the website purposely facilitated sex trafficking.

Backpage.com, 817 F.3d at 15. In Jane Doe I v.

Backpage.com, LLC, three children, beginning at the

age of 15, were trafficked through advertisements

posted on Backpage under the “Adult Entertainment”

category. Id. at 17. Sometimes their traffickers posted

the advertisements directly, and sometimes the

victims themselves were forced to post the

advertisements. Id. The advertisements typically

included images of the child and coded terminology

meant to refer to the fact that the girls were underage.

Id.

The three girls sued Backpage asserting three sets

of claims. Id. Of relevance here is the set of claims

alleging that Backpage engaged in sex trafficking of

minors as defined by federal and state law. Id. After a

motion to dismiss from Backpage, the district court

dismissed the action in its entirety. Doe ex rel. Roe v.

Backpage.com, LLC, 104 F. Supp. 3d 149, 165 (D.

Mass. 2015). On appeal to the First Circuit, the girls

challenged the district court’s conclusion that Section

230 shielded Backpage from liability for their conduct

that allegedly amounted to participation in sex

trafficking. Backpage.com, 817 F.3d at 18. The girls

asserted that “Backpage’s rules and processes

governing the content of advertisements were

designed to encourage sex trafficking.” Id. at 16. And

that allegation was not unfounded. Backpage’s search

system screened out advertisements that contained

certain prohibited terms, like “barely legal” and “high

school,” but when a user’s search failed for using such

terms, they could easily use coded search terms, like

“brly legl” or “high schl.” Id. at 17. The First Circuit,

begrudgingly, affirmed the district court’s decision to

dismiss. Id. at 29.

Writing for the Court, Circuit Judge Selya

acknowledged that “[t]his is a hard case — hard not in

the sense that the legal issues defy resolution, but

hard in the sense that the law requires that we, like

the court below, deny relief to plaintiffs whose

circumstances evoke outrage.” Id. at 15. That is

because there has been “near-universal” agreement

from the federal courts that Section 230 should not be

construed stingily. Id. at 18; see, e.g., Doe v. MySpace,

Inc., 528 F.3d 413, 418 (5th Cir. 2008); Universal

Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419

(1st Cir. 2007); Almeida v. Amazon.com, Inc., 456 F.3d

1316, 1321–22 (11th Cir. 2006); Carafano v.

Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir.

2003). This preference “recognizes that websites that

display third-party content may have an infinite

number of users generating an enormous amount of

potentially harmful content[.]” Backpage.com, 817

F.3d at 18–19. Holding websites liable for all that

content “would have an obvious chilling effect[.]” Id.

at 19 (citing Zeran, 129 F.3d at 331). However, failing

to hold websites liable for content which they

knowingly supported or promoted is equally

problematic.

Immediately after the decision in Backpage.com,

Congress passed the Allow States and Victims to

Fight Online Sex Trafficking Act (“FOSTA”), which

amended the CDA and created liability for internet

companies if any third-party content on their websites

promote or facilitate prostitution or if their websites

facilitate traffickers in advertising the sale of

unlawful sex acts with sex trafficking victims. 47

U.S.C. § 230(e)(5); 18 U.S.C. §§ 1591, 1595, 2421(a).

But post-Backpage.com and FOSTA, courts today still

use Section 230 to protect internet companies from

civil liability arising from a vast array of claims. See

generally Danielle Keats Citron & Benjamin Wittes,

The Problem Isn’t Just Backpage: Revising Section

230 Immunity, 2 Geo. L. Tech. Rev. 453, 458

(2018) (explaining that “federal courts have reached a

near-universal agreement that [Section 230] should

be construed broadly”).

Another example of Section 230 abuse is found at

TheDirty.com, a website once devoted to spreading

gossip. Id. at 453. The website’s founder, Nik Richie,

encouraged his audience to email him “dirt” on people

they know. Id. at 453–54. Richie then posted emails in

blog posts alongside photos of ordinary people

“scantily clad, inebriated, and unfaithful.” Kate

Knibbs, Cleaning Up the Dirty, RINGER (Apr. 19,

2017, 12:21 PM).2 The blog posts led to abuse, with

commentors accusing the subject of the posts of

having sexually transmitted infections, psychiatric

disorders, and financial troubles. Kashmir Hill, The

Dirty Business: How Gossipmonger Nik Richie Stays

Afloat, FORBES (Nov. 11, 2010, 8:37 PM).3 Richie

admitted to ruining peoples’ lives “sometimes out of

fun.” Knibbs, supra. “That admission is not against

interest—he knows well that he cannot be sued for his

role in the abuse because the onus of the abuse is on

the users.” Citron & Wittes, supra, at 454; see, e.g.,

Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d

398 (6th Cir. 2014); S.C. v. Dirty World, LLC, No. 11CV-00392, 2012 U.S. Dist. LEXIS 118297 (W.D. Mo.

March 12, 2012); and Gauck v. Karamian, 805 F.

Supp. 2d 495, n.3 (W.D. Tenn. 2011).

A final example of the need for this Court to define

the scope of Section 230 immunity lies in the

relationship between social media companies and

terrorist groups. A survey of overseas groups, formally

designated as terrorists, found that many still had

active social media accounts. Citron & Wittes, supra,

at 454. Federal law creates civil—and criminal—

2 https://perma.cc/WF3X-K9EM

3 https://perma-

archives.org/warc/20170909184903/https://www.forbes.com/

penalties for providing material support, anything of

value, to designated foreign terrorist groups. 18

U.S.C. § 2339(b). Yet many of these groups, including

Hamas, Hezbollah, the PKK, and Lakshar-e-Taiba,

openly maintain an online presence on social media

platforms like Facebook and Twitter. See Zack Bedell

& Benjamin Wittes, Tweeting Terrorists, Part I: Don’t

Look Now but a Lot of Terrorist Groups Are Using

Twitter, LAWFARE (Feb. 14, 2016, 5:05 PM).4 Thanks

to Section 230’s current interpretation, efforts to hold

social media platforms responsible for providing

material support to terrorist groups have failed. See,

e.g., Cohen v. Facebook, 252 F. Supp. 3d 140 (E.D.N.Y.

2017) (dismissing claims based on federal material

support statute against Facebook because failure to

remove Hamas postings concerned defendant's role as

publisher of online content and thus fell within

Section 230(c)(1)'s immunity provision); Fields v.

Twitter, 200 F. Supp. 3d 964 (N.D. Cal. 2016).

Today, most courts dismiss any civil suit brought

against an internet company if that claim “could even

tangentially fall under Section 230’s purview.” Kira

M. Geary, Comment: Section 230 of the

Communications Decency Act, Product Liability, and

a Proposal for Preventing Dating-App Harassment,

125 Penn. St. L. Rev. 501, 518 (2021).

Courts have built a mighty fortress protecting

platforms from any accountability for unlawful

activity on their systems—even when they actively

encourage such activity or deliberately refuse to

address it. The Supreme Court has declined to

weigh in on the meaning of Section 230, but state

4 https://perma.cc/JFN4-LQJZ

and lower federal courts have reached a nearuniversal agreement that it should be construed

broadly.

Citron & Wittes, supra, at 458. With the everincreasing use of social media platforms and the

influence they hold over American culture, it is

necessary that this Court step in to define when and

from what internet companies are immune. This case

presents an ideal vehicle for this Court to reign in

Section 230 immunity from civil liability.

CONCLUSION

The internet may not be a public forum, but rather

a series of private websites. But in its preface to

Section 230, Congress included a finding identifying

the internet as “a forum for a true diversity of political

discourse, unique opportunities for cultural

development, and myriad avenues for intellectual

activity.” 47 U.S.C. § 230(a)(3). A proper reading of

Section 230 will nudge the internet close to Congress’

vision of a lightly regulated but decent place.

For the reasons stated above, this Court

should grant the petition for writ of certiorari.