Dear Supreme Court: Judicial Curtailing Of Section 230 Will Make The Internet Worse

Every amicus brief the Copia Institute has filed has been important. But the brief filed today is one where all the marbles are at stake. Up before the Supreme Court is Gonzalez v. Google, a case that puts Section 230 squarely in the sights of the Court, including its justices who have previously expressed serious misunderstandings about the operation and merit of the law.

As we wrote in this brief, the Internet depends on Section 230 remaining the intentionally broad law it was drafted to be, applying to all sorts of platforms and services that make the Internet work. On this brief the Copia Institute was joined by Engine Advocacy, speaking on behalf of the startup community, which depends on Section 230 to build companies able to provide online services, and Chris Riley, an individual person running a Mastodon server who most definitely needs Section 230 to make it possible for him to provide that Twitter alternative to other people. There seems to be this pervasive misconception that the Internet begins and ends with the platforms and services provided by “big tech” companies like Google. In reality, the provision of platform services is a profoundly human endeavor that needs protecting in order to be sustained, and we wrote this brief to highlight how personal Section 230’s protection really is.

Because ultimately without Section 230 every provider would be in jeopardy every time they helped facilitate online speech and every time they moderated it, even though both activities are what the Internet-using public needs platforms and services to do, even though they are what Congress intended to encourage platforms and services to do, and even though the First Amendment gives them the right to do them. Section 230 is what makes it possible at a practical level for them to them by taking away the risk of liability arising from how they do.

This case risks curtailing that critical statutory protection by inventing the notion pressed by the plaintiffs that if a platform uses an algorithmic tool to serve curated content, it somehow amounts to having created that content, which would put the activity beyond the protection of Section 230 as it only applies to when platforms intermediate content created by others and not content created by themselves. But this argument reflects a dubious read of the statute, and one that would largely obviate Section 230’s protection altogether by allowing liability to accrue as a result of some quality in the content created by another, which is exactly what Section 230 is designed to forestall. As we explained to the Court in detail, the idea that algorithmic serving of third party content could somehow void a platform’s Section 230 protection is an argument that had been cogently rejected by the Second Circuit and should similarly be rejected here.

Oral argument is scheduled for February 21. While it is possible that the Supreme Court could take onboard all the arguments being brought by Google and the constellation of amici supporting its position, and then articulate a clear defense of Section 230 platform operators could take back to any other court questioning in their statutory protection, it would be a good result if the Supreme Court simply rejected this particular theory pressing for artificial limits to Section 230 that are not in the statute or supported by the facially obvious policy values Section 230 was supposed to advance. Just so long as the Internet and the platforms that make up it can live on to fight another day we can call it a win. Because a decision in favor of the plaintiffs curtailing Section 230 would be an enormous loss to anyone depending on the Internet to provide them any sort of benefit. Or, in other words, everyone.