Amicus Curiae Brief — Jason Fyk, Petitioner v. Facebook, Inc.

NO. 24-1116

In the

Supreme Court of the United States

JASON FYK,

Petitioner,

v.

FACEBOOK, INC.,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

DAVID W. MORGAN

IN SUPPORT OF PETITIONER

Ronald D. Green, Jr.

Counsel of Record

RANDAZZA LEGAL GROUP, PLLC

8991 West Flamingo Road, Suite B

Las Vegas, NV 89147

(702) 420-2001

ecf@randazza.com

May 27, 2025

SUPREME COURT PRESS

Counsel for Amicus Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

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

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

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT ............................................................... 4

I.

By Its Plain Text, Section 230(c)(1) Protects

Neutral Hosting – Not Editorial Control,

Including Removal, Promotion, and Artificial

Suppression of Third-Party Content ............... 4

II. Section 230(c)(2) provides a Limited Safe

Harbor for Platforms to Remove ThirdParty Content, but It Does Not Grant a

Blank Check for Censorship ............................ 6

III. The Legislative Promise of Section 230 Has

Been Broken by Over-Interpretation .............. 9

IV. The Original Congressional Findings No

Longer Reflect the Reality of the Modern

Internet ........................................................... 12

CONCLUSION.......................................................... 13

ii

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Dyroff v. Ultimate Software Grp., Inc.,

934 F.3d 1093 (9th Cir. 2019) ............................. 4

Enigma Software Grp. USA, LLC v.

Malwarebytes, Inc., 946 F.3d 1040

(9th Cir. 2019) ..................................................... 7

Force v. Facebook, Inc.,

934 F.3d 53 (2d Cir. 2019) ................................... 4

M.P. by & through Pinckney v. Meta Platforms

Inc., 127 F.4th 516 (4th Cir. 2025) ................. 4, 5

Murthy v. Missouri,

603 U.S. 43 (2024) ............................................... 8

Sikhs for Just., Inc. v. Facebook, Inc.,

697 F. App’x 526 (9th Cir. 2017) ......................... 4

Zeran v. America Online, Inc.,

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

STATUTES

47 U.S.C. § 230 ................................................ 2-7, 9-14

47 U.S.C. § 230(a) ..................................................... 11

47 U.S.C. § 230(c)(1) ............................................ 2-5, 9

47 U.S.C. § 230(c)(2) ......................................... 2-5, 7-9

iii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

A. Scalia & B. Garner,

READING LAW, Thomson/West (2012).............. 6, 7

Adam Candeub & Eugene Volokh,

Interpreting 47 U.S.C. § 230(c)(2),

1 J. FREE SPEECH L. 175 (2021) ...................... 7, 8

Adam Candeub,

Reading Section 230 as Written,

1 J. FREE SPEECH L. 139 (2021) ................... 4, 5, 6

Common Sense,

Teens and Pornography, https://www.

commonsensemedia.org/research/teensand-pornography ............................................... 13

Danielle Keats Citron & Benjamin Wittes,

The Internet Will Not Break: Denying Bad

Samaritans § 230 Immunity,

86 FORDHAM L. REV. 401 (2017) ........................ 10

Emily Stewart,

Ron Wyden wrote the law that built the

internet, VOX, May 16, 2019, https://www.

vox.com/recode/2019/5/16/18626779/ronwyden-section-230-facebook-regulationsneutrality ........................................................... 10

Frank Pasquale,

THE BLACK BOX SOCIETY: THE SECRET

ALGORITHMS THAT CONTROL MONEY AND

INFORMATION, Harvard University Press

(2015) ................................................................. 12

iv

TABLE OF AUTHORITIES – Continued

Page

Gregory M. Dickinson,

Section 230: A Juridical History,

28 STAN. TECH. L. REV. 1 (2025) .......................... 4

Jacob Shamsian,

What Smart People are Saying About

Meta’s Argument that it is not a Social

Media Monopoly, BUSINESS INSIDER

(April 16, 2025) .................................................. 10

Will Duffield,

Jawboning Against Speech, Cato Policy

Analysis (September 12, 2022) ........................... 9

1

INTEREST OF THE AMICUS CURIAE1

DAVID W. MORGAN is a retired U.S. Air Force

Lieutenant Colonel and Vietnam veteran. At 85, he

has no financial interest in this case – only a lifelong

commitment to defending the liberties that define our

nation. He served with distinction as a fighter pilot, built

a successful career in private enterprise, and now

directs his resources towards humanitarian efforts

through the Dave and Wendy Morgan Foundation,

which has funded clean water wells and rebuilt schools

in rural Uganda.

He files this brief not as a lawyer, but as a citizen

– one who believes that freedom is never more than a

generation away from being lost. He has watched with

growing concern as private companies, shielded by

expansive interpretations of Section 230, have gained

unchecked power to shape, suppress, or silence speech.

Platforms that once hosted the digital public square

now curate it – often under the shadow of political

influence and without accountability.

Mr. Morgan respectfully urges this Court not to

wait for the “perfect” Section 230 case, but to recognize that the Fyk petition presents the right opportunity to bring clarity. This is the moment to reaffirm

1 No counsel for any of the parties authored this brief in whole

or in part, and no counsel or party has made a monetary

contribution intended to fund the preparation or submission of

this brief. No other person, aside from Mr. Morgan and his

counsel, has made such a monetary contribution. Counsel of

record for the parties timely received Mr. Morgan’s notice of intent

to file this brief at least 10 days in advance of the deadline.

2

that the First Amendment belongs not just to platforms

or governments – but to the people.

For the sake of every citizen whose voice still

matters – and whose silence should never be forced –

Mr. Morgan respectfully submits this brief.

Mr. Morgan has no financial interest in this case.

SUMMARY OF THE ARGUMENT

47 U.S.C. § 230 (“Section 230”) was passed as

part of the Communications Decency Act — not the

Communications Immunity Act. Its purpose was to

encourage responsibility, not indifference. Over time,

the law’s original intent has been inverted. Platforms

now enjoy immunity not only when they remove

indecent material, but also when they host or amplify

it — even if it violates the spirit of community decency

the law was meant to uphold. The result is a legal

structure that protects power, not principle.

The vast majority of the time Section 230 is

invoked by defendants, they cite purported immunity

granted by 47 U.S.C. § 230(c)(1). Courts have expanded

this subsection so far beyond its original intent that it

now silences users (everyday citizens using these

platforms to express their lawful views) while denying

them access to justice and nullifies the responsibility

Congress placed in Section 230(c)(2) to moderate

“otherwise objectionable” content. Under a reasonable

interpretation of the statute, it would work like this:

3

●

Section 230(c)(1) is the passive shield: it

prevents platforms from being treated as the

publisher of content posted by others. It exists

to protect neutral hosting — not editorial

control.

●

Section 230(c)(2) is the active sword: it allows

platforms, in good faith, to remove obscene,

violent, or otherwise harmful material.

Instead, some Circuits have interpreted subsection

(c)(1) to unconditionally protect all decisions of a service

provider, completely swallowing the conditional protections of subsection (c)(2). This is contrary to the

purpose of Section 230 and standard canons of statutory interpretation. The result of this bastardization

of Section 230 is a legal imbalance that lets powerful

platforms suppress lawful speech while avoiding

accountability — even when acting in bad faith or

under government political pressure. This is not what

Congress intended, and it is not what the First

Amendment permits.

4

ARGUMENT

I.

By Its Plain Text, Section 230(c)(1) Protects

Neutral Hosting – Not Editorial Control,

Including Removal, Promotion, and Artificial Suppression of Third-Party Content

Section 230(c)(1) 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). It does not say platforms are entitled to

blanket immunity “for any action taken concerning that

content.” See Adam Candeub, Reading Section 230 as

Written, 1 J. FREE SPEECH L. 139, 154–58 (2021). Nor

does it say “even when the platform makes editorial

decisions.” See id. And it certainly does not say

“regardless of whether the conduct in question involves

third-party speech or the platform’s own.” See id.

Section 230(c)(1) was written to protect hosting

platforms from being treated as the publisher or

speaker of content created by others. M.P. by & through

Pinckney v. Meta Platforms Inc., 127 F.4th 516, 520

(4th Cir. 2025); Gregory M. Dickinson, Section 230: A

Juridical History, 28 STAN. TECH. L. REV. 1, 6 (2025).

But courts have expanded this protection far beyond

its text — granting immunity even for the platform’s

own conduct, including removal decisions, algorithmic

promotion, and content suppression. See e.g., Sikhs for

Just., Inc. v. Facebook, Inc., 697 F. App’x 526 (9th Cir.

2017); Force v. Facebook, Inc., 934 F.3d 53, 58 (2d Cir.

2019); Dyroff v. Ultimate Software Grp., Inc., 934 F.3d

1093, 1098 (9th Cir. 2019) (finding that the plaintiff

5

could not “plead around Section 230 immunity by

framing [recommendation algorithms] as content”).

The result of this overly-broad interpretation has

been not just protection from liability — but immunity

from accountability, even when platforms act as active

participants in shaping what users see, hear, or are

allowed to say. Force, 934 F.3d at 59, 67 (holding that

Section 230(c)(1) provided a shield for algorithmic promotion of Hamas’s content, which empowered Hamas

to “carry out communication components of [its] terror

attacks.)

This Court need not rewrite Section 230(c)(1).

Instead, it should grant certiorari and restore its original meaning and congressional intent by reaffirming a

simple principle: Section 230(c)(1) protects platforms

from liability for the speech of others — not from the

consequences of their own actions. When a platform

removes content, shadow bans users, or amplifies

certain voices over others, it ceases to be a neutral

host. It becomes an editor — and editors should not be

entitled to immunity. Candeub, supra, at 150–51. A

platform engages in editorial control not merely by

hosting or passively ranking content, but by actively

shaping visibility—removing, promoting, or suppressing

content based on subjective criteria or platform policies.

The vast majority of courts continue to shield all

manner of content moderation decisions under Section

230(c)(1), even when the platforms take the affirmative

step of pushing the content on their users. See e.g.,

M.P., 127 F.4th at 526. In reading this broad immunity

into Section 230(c)(1), courts continue to rely on Zeran

v. America Online, Inc., which held that content moderation decisions for online platforms, such as whether

to “publish, withdraw, postpone or alter content” were

6

all “traditional editorial functions,” not independent

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

But Zeran was wrong about the nature Section

230’s provisions. It mistakenly read a broad editorial

immunity into Section 230(c)(1) and ignored the congressionally-provided — and limited — immunity provided in Section 230(c)(2). In doing so, the Zeran court

relegated 230(c)(2) to canonically-frowned upon surplusage. Candeub, supra, at 151; A. Scalia & B. Garner,

READING LAW 228 (2012).

The courts should not grant a windfall by providing that a platform can act as curator, recommender,

editor, censor, and amplifier with impunity — while

claiming to be none of these things. By restoring the

boundary between hosting third-party content and

exerting control of the entirety of the viewer’s experience, the Court can ensure that Section 230 continues

to protect the Internet — without eroding the congressional goals that motivated the adoption of Section 230.

II. Section 230(c)(2) provides a Limited Safe

Harbor for Platforms to Remove Third-Party

Content, but It Does Not Grant a Blank

Check for Censorship

Zeran’s mistake in providing broad immunity for

content moderation reads out the explicit statutory

provided-for immunity. But Congress’s grant of immunity was intentionally a limited one. The congressional

record surrounding the adoption of Section 230 demonstrates that the focus of (c)(2) was not in providing for

freewheeling editorial removal. 141 Cong. Rec. 2204447 (1995). Instead, every legislator who discussed the

bill highlighted its ability to empower platforms to take

down content that was deemed not “family-friendly,”

7

the overarching goal of the Communications Decency

Act. Adam Candeub & Eugene Volokh, Interpreting 47

U.S.C. § 230(c)(2), 1 J. FREE SPEECH L. 175, 185

(2021). Nowhere does the congressional record support

reading in a blanket sword into Section 230 to takedown.

Instead, Congress provided an enumerated list of

materials for which restrictions would not result in

liability. The list includes material that is “obscene,

lewd, lascivious, filthy, excessively violent, harassing,

or otherwise objectionable.” Each of these categories

was broadly understood to be speech that was regulable

by Congress, so it made sense to empower platforms

to independently clean their own houses. See id. at 176.

And the “catchall” provision, “otherwise objectionable,”

does nothing to change this analysis. Again, Section

230(c)(2) is a sword, but only a short one.

Under the doctrine of ejusdem generis, the Court

should interpret “otherwise objectionable” to mean only

material similar in nature to that which precedes it:

obscenity, harassment, violence, and similarly harmful

content. Scalia & Garner, supra, at 199–214; Candeub

& Volokh, supra, at 178–83. Such a ruling would preserve Congress’s intent to protect users and children —

while preventing the clause from becoming an openended license to censor.

The catalog of Section 230 cases demonstrate a

notable dearth of considering the application of ejusdem

generis. Candeub & Volokh, supra, at 178. One notable

exception was the Ninth Circuit’s tacit rejection of the

canon on the grounds that the specific terms were not

sufficiently similar to provide assistance in understanding the meaning of “otherwise objectionable.”

Enigma Software Grp. USA, LLC v. Malwarebytes, Inc.,

8

946 F.3d 1040, 1051–52 (9th Cir. 2019). However, as

Professors Candeub and Volokh argue, this misses the

goal of Section 230’s adoption. The terms are similar

because they are all aimed at content that was deemed

regulable in the context of telecommunications technologies and otherwise discussed throughout the CDA. Id.

With this context, the terms should not be understood as dissimilar. Instead, ejusdem generis provides

a clear picture of the narrow range of regulable content.

Like the preceding terms, “otherwise objectionable”

only includes the content that was similarly addressed

in the CDA and subject to congressional regulation in

this context; as the professors note, this would likely

include some forms of anonymous speech. Id. at 176.

But what it certainly does not mean is that platforms

can make free-wheeling decisions about what is

objectionable. Nor can their definition of objectionable

cover core constitutional speech, such as political

expression or dissent.

Further, Section 230(c)(2) puts a cap on the enumerated list by emphasizing that — within the confines

of the enumerated list—the platforms can restrict the

content “whether or not such material is constitutionally protected.” 47 U.S.C. § 230(c)(2). That phrase

deserves this Court’s close attention. The First Amendment prohibits Congress from abridging lawful speech

— yet this clause effectively licenses private censorship

of protected speech with no judicial review.

While platforms are private actors, the law not

only shields their suppression of constitutionally protected expression but does so even when they act under

informal pressure or guidance from government officials. This opened up the very problem this Court was

faced with in Murthy v. Missouri, 603 U.S. 43 (2024).

9

The unduly broad reading of Section 230(c)(2) has

opened an ever-present, cross-political temptation for

proxy censorship. This is no hypothetical concern. Both

Republican and Democratic administrations have engaged in jawboning efforts, a path greased by Section

230(c)(2)’s improper reading. Will Duffield, Jawboning

Against Speech, Cato Policy Analysis, (September 12,

2022).2 This amounts to a congressional workaround

of the First Amendment — not in form, but in function.

If lawful speech can be suppressed with guaranteed

platform immunity, then the right to speak becomes

discretionary, not constitutional. This Court should

not overlook that danger.

This Court should restore the limits of Section

230(c)(1). If it does so, it cannot ignore the structural

invitation for abuse embedded in Section 230(c)(2).

The phrase “otherwise objectionable” has no statutory

definition — and, under current interpretation, no

boundaries. Platforms have invoked it to remove or

suppress not just indecent content, but lawful political

opinions, satire, and dissent — all under the cloak of

discretionary objection. This Court need not rewrite

the statute. Instead, it should apply the appropriate

narrowing construction.

III. The Legislative Promise of Section 230 Has

Been Broken by Over-Interpretation

This misplaced reliance on Section 230(c)(1) to

empower all forms of censorial content moderation,

displacing the proper role of (c)(2), has caused a misalignment between the statute’s text and its impact.

Section 230 was passed to empower innovation, protect

2 Available at: https://www.cato.org/sites/cato.org/files/2022-09/

PA_934.pdf.

10

children, and ensure that platforms could moderate

“objectionable” material without being buried in litigation. Danielle Keats Citron & Benjamin Wittes, The

Internet Will Not Break: Denying Bad Samaritans

§ 230 Immunity, 86 FORDHAM L. REV. 401, 405 (2017).

Its architects — then-Representatives Chris Cox and

Ron Wyden — made clear: this was not a blank check

for platforms, but a balanced exchange. As Senator

Wyden later recalled:

The shield is for the little guys, so they don’t

get killed in the crib, and the sword would

give platforms the opportunity to take down

things like opioid ads while providing protections for the good actors . . . What we do

in 230 is curate some content, leave some up,

and give them a chance to get the slime out.

Emily Stewart wrote, “Ron Wyden wrote the law that

built the internet. He still stands by it – and

everything it’s brought with it,” Vox (May 16, 2019).3

But that legislative balance has shifted. Today,

platforms are no longer the “little guys . . . in the crib.”

They are the publishers, censors, and amplifiers of

a global speech ecosystem. This ecosystem has concentrated winners worth billions or trillions of dollars,

often to the exclusion of new networks. Jacob Shamsian,

What Smart People are Saying About Meta’s Argument

that it is not a Social Media Monopoly, BUSINESS

INSIDER (April 16, 2025).4 And thanks to expansive

3 Available at: https://www.vox.com/recode/2019/5/16/18626779/

ron-wyden-section-230-facebook-regulations-neutrality.

4 Available at: https://www.businessinsider.com/ftc-meta-trialmark-zuckerberg-antitrust-2025-4?utm_source=chatgpt.com.

11

judicial interpretation, they enjoy immunity even for

actions that suppress lawful speech, silence dissent,

or prioritize influence over fairness.’’

Moreover, Section 230 should not be interpreted

to give platforms permanent immunity when they

knowingly host unlawful content. A platform that is put

on notice of illegal activity — and does nothing — is

no longer acting in good faith or as a “Good Samaritan.”

Section 230 has become a monster – protecting

horrifying negative outcomes all falsely invoking the

value of protecting free speech, but at the same time

Section 230 has been interpreted to permit platforms

to monopolize the new town square and then act to

suppress free speech, leaving our marketplace of ideas

no longer wide open and robust as Americans deserve.

Instead, it is as if the marketplace was bought up by

a couple of big-box stores that sell the same mass produced products, with no room for competition. Section

230 was designed for the 1994 version of the Internet,

and while every other technological advance since then

has changed, adapted, and been updated, Section 230

has sat, static and gathering confusing legal moss. It

acts as the core of the Internet’s “terms of use,” but

while every website updates its terms on a regular

basis, the common terms, Section 230, have failed to

even evolve a single day since its original inception.

Section 230 now denies relief to individuals not

because they lack a claim, but because the courts have

shut the doorway in their faces. This is not what

Congress intended, nor is it commanded by the text.

And the Constitution does not prohibit this Court from

correcting the lower courts’ errors.

12

IV. The Original Congressional Findings No

Longer Reflect the Reality of the Modern

Internet

The perverted interpretation of Section 230(a) is

especially disconcerting when viewed in the context of

the aspirations of Congress when it passed Section

230. The statute contains one particularly notable goal

from Congress in 1996. It reads: “The Internet . . .

represents an extraordinary advance . . . a forum for a

true diversity of political discourse . . . flourishing with

a minimum of government regulation.” But the reality

today stands in sharp contrast to that hope. In place

of open discourse, we now find:

●

Content removed or suppressed without

explanation;

●

Shadow bans applied through algorithms;

●

Terms of service written in vague, one-sided

language; and

●

Speech chilled not by law, but by the fear of

platform retaliation.

Users are promised “control” over the information

they receive — but are given little transparency or

choice about what content is algorithmically prioritized,

demoted, or hidden. Frank Pasquale, THE BLACK BOX

SOCIETY: THE SECRET ALGORITHMS THAT CONTROL

MONEY AND INFORMATION 4 (2015) (describing how algorithms operate as impenetrable “black boxes,” making

decisions about content visibility without user awareness or understanding). Congress hoped to empower

families and individuals. But in practice, the power

now lies with a handful of corporations who operate as

publishers in all but name, and whose immunity has

13

been broadened not by law, but by judicial expansion.

Moreover, Section 230 was passed as part of the

Communications Decency Act to protect children from

obscene and harmful content. Yet today, children have

easier access than ever to hardcore pornography,

violent content, and targeted manipulations, while

parents are left with few meaningful tools — and even

fewer legal remedies. Teens and Pornography, Common

Sense (January 10, 2023).5

CONCLUSION

The First Amendment was not written to protect

consensus. It was written to preserve liberty — the

kind of liberty that allows citizens to speak out even

when they are wrong, offensive, angry, or alone. It

draws no line between credentialed and uncredentialed

voices, between polished opinion and raw protest. So

long as speech is peaceful, the Constitution defends it

— even when others call it misinformation, disinformation, or dangerous thought.

Section 230 was enacted not to erase that freedom,

but to support it — by protecting platforms that host

lawful speech and by empowering them to act against

truly harmful material. It created two tools: a shield

and a sword. But that balance — and that statutory

design — has been broken. Courts have fortified the

shield beyond recognition, expanding it to cover even

editorial conduct and speech suppression not mentioned or implied in the text. At the same time, they

5 Available at: https://www.commonsensemedia.org/research/teensand-pornography.

14

have made the sword irrelevant, stripping (c)(2) of

meaning and accountability. The result is an unchecked power to silence, paired with a near-total

immunity from responsibility.

This brief is not about Jason Fyk. It is about the

citizen who posts an opinion which is erased without

recourse. It is about the imbalance between billiondollar corporations and the people they silence — people

with no comparable power, no platform of their own,

and no practical means of fighting back.

This Court can clarify the line between hosting and

controlling — and in doing so, restore the balance

Congress created in Section 230 and the freedom of

speech the Constitution protects. For the sake of every

citizen whose voice still matters — and whose silence

should never be forced — Mr. Morgan respectfully

submits this brief.

Respectfully submitted,

Ronald D. Green, Jr.

Counsel of Record

RANDAZZA LEGAL GROUP, PLLC

8991 West Flamingo Road, Suite B

Las Vegas, NV 89147

(702) 420-2001

ecf@randazza.com

Counsel for Amicus Curiae

David W. Morgan

May 27, 2025