My Amicus Brief in Gonzalez v. Google

January 18, 2023 · by · in Content Regulation, Derivative Liability

Internet Law is in play at the U.S. Supreme Court, as they will likely hear at least four cases this term. (A possible fifth is the 303 Creative case). The four cases:

  • Gonzalez v. Google, over whether Section 230 applies to algorithmic recommendations
  • Taamneh v. Twitter, over whether social media services can violate the Anti-Terrorism Act
  • NetChoice v. Florida Attorney General and NetChoice v. Paxton, over the Florida and Texas social media censorship laws. Cert has not yet been granted but it’s likely.

Any one of these four cases could easily go sideways and disrupt the Internet as we know it. In other words, the Supreme Court has four opportunity to destroy the Internet, and there’s only one scenario–four precisely written pro-Internet opinions from the Supreme Court–that preserves the status quo. How are you feeling about those odds?

In Gonzalez v. Google, this week I filed an amicus brief in support of Google. I focused on one issue: how Section 230 interplays with the First Amendment. My brief is based on this article, “Why Section 230 Is Better Than the First Amendment.” The brief explains how Section 230 provides important procedural benefits in litigation that promote pro-speech outcomes. Those benefits would be lost if the Supreme Court accepts the plaintiffs’ arguments about excluding algorithmic recommendations.

FWIW, I also filed an amicus brief in support of certiorari in the NetChoice v. Florida Attorney General case, where I explain why the Supreme Court’s Zauderer precedent doesn’t justify the law’s editorial transparency requirements (it’s not even close). The brief is based on two recent articles (1, 2). I anticipate filing a merits brief if/when the court grants cert.

My next amicus brief will be in NetChoice v. Bonta, the constitutional challenge to California’s Age-Appropriate Design Code. My unexpectedly heavy docket of amicus briefs reflects the multitudinous threats to the Internet…and how losing any one of these is likely to change the Internet in dramatic and unwanted ways.