throbber
No. 21-1333
`
`In the Supreme Court of the United States
`_________
`REYNOLDO GONZALES, ET AL., PETITIONERS,
`v.
`GOOGLE LLC, RESPONDENT.
`
`__________________
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`_________________
`
`BRIEF FOR THE CENTER FOR GROWTH AND
`OPPORTUNITY, AMERICANS FOR
`PROSPERITY FOUNDATION, BEACON
`CENTER OF TENNESSEE, FREEDOM
`FOUNDATION OF MINNESOTA, ILLINOIS
`POLICY, INDEPENDENCE INSTITUTE, JAMES
`MADISON INSTITUTE, LIBERTAS INSTITUTE,
`MOUNTAIN STATES POLICY CENTER,
`OKLAHOMA COUNCIL OF PUBLIC AFFAIRS,
`PELICAN INSTITUTE FOR PUBLIC POLICY,
`AND RIO GRANDE FOUNDATION AS AMICI
`CURIAE IN SUPPORT OF RESPONDENT
`
`__________________
`
`
`
`
`
`
`
`
`
`
`
`ANDREW C. NICHOLS
` Counsel of Record
`Charis Lex P.C.
`11921 Freedom Dr., Ste. 550
`Reston, VA 20190
`(571) 549-2645
`anichols@charislex.com
`Counsel for Amici Curiae
`
`

`

`
`QUESTION PRESENTED
`Does 47 U.S.C. § 230(c)(l) immunize interactive
`computer services when they make targeted recom-
`mendations of information provided by another in-
`formation content provider?
`
`
`
`

`

`ii
`TABLE OF CONTENTS
`
`Page
`QUESTION PRESENTED ........................................... i
`TABLE OF AUTHORITIES ....................................... iv
`INTEREST OF AMICI CURIAE ................................. 1
`SUMMARY OF ARGUMENT ..................................... 1
`ARGUMENT ................................................................ 6
`I. This case is readily resolved under the plain
`text of Section 230. ................................................ 6
`A. Section 230 distinguishes between
`“enabling tools” that “choose,”
`“organize,” and “display” or “forward”
`“content”—which describes YouTube’s
`automated recommendation system—
`and “content” itself. ......................................... 6
`B. Holding that YouTube’s automated
`recommendation system is protected as
`an “enabling tool” fits with the law’s
`express purpose statements. ........................ 12
`1. This Court relies on express
`statutory purpose statements to
`clarify the proper interpretation of
`operative text. ......................................... 12
`2. Section 230’s express purpose
`statements favor distinguishing
`YouTube’s automated
`recommendation system from
`content. ................................................... 14
`II. Reading Section 230 as its plain text
`requires will best foster speech and expand
`the marketplace of ideas. .................................... 21
`
`
`
`

`

`iii
`A. Under the law’s current interpretation,
`the marketplace of ideas has grown and
`heterodox speech has flourished. ................. 21
`1. Since Section 230 was enacted,
`internet platforms have added
`billions of users, each a unique
`content creator. ....................................... 21
`2. Many of the leading voices on the
`internet are conservative or
`heterodox. ............................................... 24
`B. Assuming that Section 230 must be
`constricted to stop censorship by “Big
`Tech” ignores that no one has ever ruled
`Big Tech for long. .......................................... 27
`C. By exposing upstarts to liability that
`only established firms can bear,
`constricting Section 230 would chill
`heterodox speech and shrink the
`marketplace of ideas. .................................... 29
`CONCLUSION .......................................................... 32
`
`
`
`
`

`

`iv
`TABLE OF AUTHORITIES
`
`Cases
`Atl. Marine Constr. Co. v. United States Dist. Court,
`571 U.S. 49 (2013) ............................................ 11–12
`Fair Housing Council of San Fernando
`Valley v. Roommates.com, LLC,
`521 F.3d 1157 (9th Cir. 2008) ................................ 31
`FDA v. Brown & Williamson Tobacco Corp.,
`529 U.S. 120 (2000) ................................................ 10
`Force v. Facebook, Inc.,
`934 F.3d 53 (2d Cir. 2019) ....................................... 8
`Mia. Herald Publ’g Co. v. Tornillo,
`418 U.S. 241 (1974) .................................................. 9
`Nat’l Cable & Telecoms. Ass’n v. Gulf Power Co.,
`534 U.S. 327 (2002) .......................................... 12–13
`R.J. Reynolds Tobacco Co. v. Cigarettes Cheaper!,
`462 F.3d 690 (7th Cir. 2006) .................................. 29
`Reynolds v. United States,
`565 U.S. 432 (2012) ................................................ 13
`Samantar v. Yousuf,
`560 U.S. 305 (2010) ................................................ 12
`Sorrell v. IMS Health Inc.,
`564 U.S. 552 (2011) ................................................ 12
`Sw. Airlines Co. v. Saxon,
`142 S. Ct. 1783 (2022) ............................................ 10
`Toyota Motor Mfg., Ky. v. Williams,
`534 U.S. 184 (2002) ................................................ 12
`
`
`
`
`
`
`

`

`v
`
`Statutes
`47 U.S.C. § 230(a)(1) .................................................. 15
`47 U.S.C. § 230(a)(3) .................................................. 15
`47 U.S.C. § 230(b)(1) .................................. 3, 14, 15, 16
`47 U.S.C. § 230(b)(2) ........................................ 3, 16, 17
`47 U.S.C. § 230(b)(3) .............................................. 3, 18
`47 U.S.C. § 230(c)(1) ............................. 2, 7, 8, 8–9, 10,
`
` 11, 17, 20, 22
`47 U.S.C. § 230(c)(2) .................................................. 17
`47 U.S.C. § 230(c)(4) .................................................... 9
`47 U.S.C. § 230(d) ...................................................... 21
`47 U.S.C. § 230(f)(2) ............................................. 2, 7, 8
`47 U.S.C. § 230(f)(3) ............................................... 8, 16
`47 U.S.C. § 230(f)(4) ................... 2, 7, 7–8, 9, 10, 16, 19
`47 U.S.C. § 230(f)(4)(C) .............................................. 10
`
`Other Authorities
`@FacebooksTop10, Twitter
`(Dec. 7, 2022, 11:00 AM),
`https://bit.ly/3XBp9Cp............................................ 24
`@FacebooksTop10, Twitter
`(Dec. 8, 2022, 11:00 AM),
`https://bit.ly/3XfUNFD ........................................... 24
`@FacebooksTop10, Twitter
`(Nov. 30, 2022, 11:00 AM),
`https://bit.ly/3WmQUgN ........................................ 24
`About The Free Press, The Free Press,
`https://bit.ly/3wetFec. ............................................. 27
`
`
`
`

`

`vi
`Allana Akhtar & Britney Nguyen,
`Everything you need to know about Parler,
`the right-wing social media platform Kanye
`West is planning to buy,
`Business Insider (Oct. 20, 2022),
`https://bit.ly/3kp8cgg .............................................. 31
`Carmen Ang, Ranked: The World’s Most
`Popular Social Networks,
`and Who Owns Them,
`Visual Capitalist (Dec. 6, 2021),
`https://bit.ly/3XApgOv ............................................ 23
`Apple, Apple reveals the most popular
`podcasts of 2022 (Dec. 5, 2022),
`https://apple.co/3WbQMAQ ................................... 25
`David Curry, Social App Report (2023),
`BusinessofApps (Dec. 14, 2022),
`http://bit.ly/3XyV7PS ............................................. 22
`Josh Dickey, Joe Rogan Is Talking About
`Vaccines Again,
`The Wrap (Apr. 13, 2022),
`https://bit.ly/3XE3nxK ........................................... 25
`Christian M. Dippon, Economic Value of
`Internet Intermediaries and the
`Role of Liability Protections,
`RealClearPolicy (Sept. 26, 2018),
`https://bit.ly/3CVMlTT ........................................... 32
`Daniel Engber, Free Thought for the
`Closed-Minded, Slate (Jan. 8, 2019),
`https://bit.ly/2FkLIY7. ........................................... 26
`Engine, Primer: Value of Section 230
`(Jan. 31, 2019),
`https://bit.ly/2GUx4VA ........................................... 29
`
`
`
`

`

`vii
`Sara Fischer, Exclusive: Bari Weiss reveals
`business plan for buzzy new media startup,
`Axios (Dec. 13, 2022),
`https://bit.ly/3WmV7B7 ......................................... 27
`Matt Flegenheimer, Joe Rogan Is Too Big to
`Cancel, N.Y. Times (July 1, 2021) ......................... 25
`Gab, Website Terms of Service,
`https://bit.ly/3ZKaaYw ........................................... 30
`Jazmin Goodwin, Gab: Everything you need to
`know about the fast-growing, controversial
`social network, CNN (Jan. 17, 2021),
`https://cnn.it/3XD25Df ........................................... 30
`Google Data Collection,
`C-SPAN (Dec. 11, 2018),
`https://bit.ly/3Dht6Vh ............................................ 22
`Erin Griffith, For Many, Elon Musk’s Buying
`Twitter Is a Moment of Celebration,
`N.Y. Times (Oct. 28, 2022) ..................................... 28
`Heather Hamilton, Joe Rogan earns top spot
`on Spotify’s 2022 podcast chart,
`Washington Examiner (Dec. 29, 2022) .................. 25
`Mansoor Iqbal, Twitter Revenue and Usage Statistics
`(2022), BusinessofApps (Jan. 9, 2023),
`http://bit.ly/3wfnreo. ............................................... 22
`Mansoor Iqbal, YouTube Revenue and Usage
`Statistics (2022), BusinessofApps (Jan. 9, 2023),
`http://bit.ly/3QOmraq ............................................. 22
`Shen Lu, As China Tightens Controls on
`Social Media, Some Users Seek Refuge
`Under the Radar,
`The Wall Street Journal (Aug. 4, 2022) ................ 31
`
`
`
`

`

`viii
`Michael Masnick, Don’t Shoot the Message
`Board: How intermediary liability harms
`online investment & innovation,
`Copia (Jun. 25, 2019),
`https://bit.ly/3w8dY8v ...................................... 31, 32
`Merriam-Webster’s Collegiate Dictionary
`(10th ed. 1994) ........................................................ 10
`Meta, Meta Earnings Presentation Q3 2022
`(Oct. 26, 2022),
`https://bit.ly/3XImzuv ............................................ 23
`Ryan Mills, Twitter Files: Platform Suppressed
`Valid Information from Medical Experts
`about Covid-19,
`National Review (Dec. 26, 2022),
`https://bit.ly/3ISV64Y............................................. 27
`Oxera, The economic impact of safe harbours
` on Internet intermediary start-ups (Feb. 2015),
`https://bit.ly/3Jco8gj ................................................. 3
`Tom Parker, Rumble sets new record of 78
`million monthly active users, Reclaim the Net,
` https://bit.ly/3ZIHXRR ........................................... 31
`Miles Parks, Outrage as a Business Model:
`How Ben Shapiro is Using Facebook to
`Build a Business Empire,
`National Public Radio (July 19, 2021),
`http://bit.ly/3CY1bJP........................................ 24, 25
`Parler, About,
`https://bit.ly/3iNqxTO ............................................ 31
`Parler, User Agreement,
`https://bit.ly/3WlZAnI ............................................ 31
`
`
`
`

`

`ix
`Jordan B Peterson (@JordanBPeterson),
`YouTube,
`https://bit.ly/3XjDSC7 ............................................ 26
`Aimee Picchi, Meta’s value has plunged by
`$700 billion. Wall Street calls it a “train
`wreck.”, CBS (Oct. 28, 2022),
`https://cbsn.ws/3ZFhULA ...................................... 28
`Nick Routley, The 20 Internet Giants That
`Rule the Web, Visual Capitalist (Jan. 19, 2022),
`https://bit.ly/2CQeaP0. ........................................... 28
`Dave Rubin (@RubinReport), About, YouTube,
`https://bit.ly/3ZIitnN .............................................. 26
`Antonin Scalia & Bryan Garner,
`Reading Law: The Interpretation of
` Legal Texts (2012) ............................................ 13, 17
`Joseph Schumpeter, Capitalism, Socialism and
`Democracy
`(3d ed. 1950) ........................................................... 27
`1 Joseph Story, Commentaries on the
`Constitution of the United States
`§ 459 (2d ed. 1858) .................................................. 13
`Kurt Wagner and Rani Molla, Facebook’s First 15
`Years Were Defined by User Growth,
`Vox (Feb. 5, 2019),
`http://bit.ly/3GTnvp7 .............................................. 22
`Bari Weiss, Resignation Letter,
`https://bit.ly/3IVd0nJ. ............................................ 26
`
`
`
`
`
`

`

`
`INTEREST OF AMICI CURIAE1
`Amici curiae are The Center for Growth and Op-
`portunity, Americans for Prosperity Foundation, Bea-
`con Center of Tennessee, Freedom Foundation of
`Minnesota, Illinois Policy, Independence Institute,
`James Madison Institute, Libertas Institute, Moun-
`tain States Policy Center, Oklahoma Council of Pub-
`lic Affairs, Pelican Institute for Public Policy, and Rio
`Grande Foundation. These are educational and re-
`search organizations committed to the rule of law,
`market economics, individual rights, and limited gov-
`ernment. They write and train the public on topics
`including economic growth, innovation, free speech,
`and intermediary liability. In the states where they
`operate, these organizations serve as some of the few,
`and at times the only, organized advocates of free-
`market policies and regulatory restraint. But this
`case is not merely important to these organizations
`as a matter of policy. It is important to their own
`ability to reach their audiences on internet platforms.
`SUMMARY OF ARGUMENT
`Petitioners and their amici labor under two basic
`misconceptions about Section 230. The first miscon-
`ception is textual, the second factual. Once these
`misconceptions are corrected, it is plain that Section
`230 protects YouTube’s recommendations.
`I. The textual misconception is that Section 230
`does not address recommendations like those made
`
`1 No party or counsel for a party authored this brief in whole or
`in part. No one other than amici or their counsel made a mone-
`tary contribution to this brief. Each of the parties has consented
`to the filing of this amicus brief.
`
`
`
`

`

`2
`
`
`by YouTube’s “automated recommendation system[].”
`Pet. Br. 17. It does.
`A. Automated recommendation systems are what
`Section 230 calls “enabling tools,” which are used by
`“access software providers” to “choose,” “display,” and
`“forward” “content.” § 230(f)(4). In using such tools,
`access software providers do not “publish[]” their own
`content, but that of “another.” § 230(c)(1). For this
`reason, such providers are defined as “interactive
`computer service[s]” (§ 230(f)(2)) that are not liable as
`“publisher[s]” (§ 230(c)(1)). Petitioners never mention
`§ 230(f)(4), not even once. But it resolves this case.
`It is no answer to say that YouTube cannot avoid
`liability by relying on a definition. Definitions exist
`to clarify operative language. And as the government
`notes, “[i]t would make little sense for Congress to
`specifically include entities that provide ‘enabling
`tools’ that ‘filter,’ ‘organize,’ and ‘reorganize’ content
`as among those to which Section 230(c)(1) applies, on-
`ly to categorically withdraw that protection” else-
`where. Br. 23. That would make Section 230(c)(1) “a
`dead letter.” Ibid. Just so. It cannot be that the very
`functions that qualify platforms for protection under
`Section 230 also disqualify them from its protections.
`Resp. Br. 40. Later, the government retreats from its
`own logic—saying that enabling tools might make ac-
`cess software providers publishers of their own con-
`tent after all. Br. 24–28. But the definition of “ena-
`bling tools” allows no such retreat. If it did, Section
`230(c)(1) would be a “dead letter.” Id. at 23.
`B. If Section 230’s text left any doubt, it would be
`resolved by the law’s purpose statements. This Court
`often relies on such statements to clarify statutory
`language. Indeed, Justice Thomas has urged the
`
`
`

`

`3
`
`
`Court to rely on the purpose statements in Section
`230 itself. Three statements are relevant here.
`First, “[i]t is the policy of the United States * * * to
`promote the continued development of the Internet[.]”
`§ 230(b)(1). Nothing has fostered the growth of the
`internet like automated recommendation systems,
`which help users find what they want in oceans of in-
`formation. As petitioners note, internet platforms
`“are constantly adjusting their recommendation sys-
`tems to improve their effectiveness”; and “[t]hese rec-
`ommendation systems have been highly effective at
`increasing usage[.]” Pet. Br. 17. Indeed they have.
`Over 60 percent of people globally have social-media
`accounts—some five billion people, each a unique
`content creator. Section 230 has fostered this growth
`by protecting automated recommendation systems
`from liability. It should not be reinterpreted.
`Second, it is federal policy “to preserve the vibrant
`and competitive free market that presently exists for
`the Internet * * * unfettered by Federal or State
`regulation[.]” § 230(b)(2). Petitioners’ suit contra-
`dicts this purpose, seeking to expose YouTube to fed-
`eral liability. And if petitioners succeed, state tort
`suits will follow as night follows day. If this case has
`exposed any ambiguity in Section 230, then, it should
`be resolved against new forms of liability.
`Third, it is federal policy “to encourage the devel-
`opment of technologies which maximize user control
`over what information is received by individuals,
`families, and schools[.]” § 230(b)(3). Fostering “user
`control” is exactly what petitioners say YouTube’s au-
`tomated recommendation system does. It “recom-
`mends content to users based upon * * * what is
`known about the viewer.” J.A. 169. And again, with-
`
`
`

`

`4
`
`
`out such powerful systems, users would be hopelessly
`lost. Finding content would be an exercise in trying
`to boil the ocean. User control today requires auto-
`mated recommendation systems. It would diminish
`user control to subject those systems to liability.
` In short, it is a misconception that Section 230
`does not cleanly resolve this case. It does. And that
`reading is confirmed by the law’s purpose statements.
`II. The factual misconception is that Section 230
`lets platforms squelch conservative and heterodox
`speech with impunity. Doubtless platforms have
`squelched speech at times, and some have not obvi-
`ously paid a price—yet. But the overall data and his-
`tory of the internet reveal a more complex picture.
`A. Consider the internet’s leading voices today.
`The largest social-media platform in the world is Fa-
`cebook, with almost three billion users. It is domi-
`nated by speakers on the right. To take one example,
`here were the top ten links on Facebook one day last
`month (right-of-center speakers shown in bold):
`1. Ben Shapiro
`2. Dan Bongino
`3. Occupy Democrats
`4. Fox News
`5. Dan Bongino
`6. Danielle D’Souza Gill
`7. Donald Trump For President
`8. NJ.com
`9. Dan Bongino
`10. Univision Famosos
`These results are typical. So often does Ben Shapiro
`lead the rankings, for example, that National Public
`Radio declared that “Ben Shapiro rules Facebook.”
`
`
`

`

`5
`
`
`Meanwhile, over on Spotify, the top podcast is hosted
`by Covid-vaccine skeptic and frequent critic of the left
`Joe Rogan, whose show collects 190 million down-
`loads a month, numbers Fox News star Tucker Carl-
`son (with some three million nightly viewers) would
`envy. Other examples abound—from psychologist
`and free-speech advocate Jordan Peterson (half a bil-
`lion views on YouTube), to conservative talk-show
`host Dave Rubin (same), to centrist journalist Bari
`Weiss (almost a million followers on Twitter).
`B. If past is prologue, moreover, platforms them-
`selves will be far from immune to competition. No
`company has ever dominated Big Tech for long. IBM
`was dethroned by Microsoft. Hewlett-Packard was
`beaten by Apple. AOL was bested by Yahoo, which
`was knocked off by Google. And the creative destruc-
`tion continues. Twitter is famously under new own-
`ership. Facebook’s stock has plummeted. And social-
`media upstarts Parler, Gab, and Rumble are growing.
`Reports of the death of competition under Section 230
`are greatly exaggerated.
`C. Exposing all platforms to liability would main-
`ly hurt startups, which later may challenge today’s
`leaders. It would also discourage turnover at the top
`of those platforms. Who doubts that Elon Musk, al-
`ready skittish about the cost of buying Twitter, would
`have passed if Twitter were liable for the recommen-
`dations of its algorithms? Or for comparison, look to
`Europe, which lacks Section 230 protections. Not one
`European platform leads the world. All the leading
`platforms are based in the United States—for now.
`As a matter of statutory text and sound policy,
`then, YouTube’s recommendations are and should be
`protected. The Court should affirm.
`
`
`

`

`6
`
`
`
`ARGUMENT
`I. This case is readily resolved under the plain
`text of Section 230.
`Section 230 may pose its interpretive challenges,
`but not in this case. The plain text of the statute an-
`swers the question presented, and that answer is con-
`firmed by the statute’s purpose statements.
`A. Section 230 distinguishes between “ena-
`bling tools” that “choose,” “organize,”
`and “display” or “forward” “content”—
`which describes YouTube’s automated
`recommendation system—and “content”
`itself.
`The Court took this case to decide whether Section
`230 protects “interactive computer services when
`they make targeted recommendations of information
`provided by another information content provider.”
`Pet. i. The answer is yes.
`1. To start, it is important to understand what
`petitioners mean when they refer to “targeted rec-
`ommendations.” Pet. i. According to the operative
`complaint, YouTube “recommends content to users
`based upon the content and what is known about the
`viewer.” J.A. 169. And “[t]hose recommendations are
`implemented through automated algorithms, which
`select the specific material to be recommended to a
`particular user based on information about that user
`that is known to [YouTube].” Pet. 3; see also id. at 9,
`30 (same). In other words, “YouTube * * * ha[s] cre-
`ated [a] complex automated recommendation sys-
`tem[]—often called [a] recommendation algorithm[]—
`using artificial intelligence to determine what mate-
`rial to recommend to each user. [YouTube] collect[s]
`
`
`

`

`7
`
`
`detailed information about users * * * [and] then
`use[s] that information to try to determine what that
`user would like to view.” Pet. Br. 17.
`2. Under Section 230, YouTube’s “automated rec-
`ommendation system[]” (Pet. Br. 17) does not expose
`YouTube (or Google) to liability. Rather, the law dis-
`tinguishes between providers of information content
`and providers of access to that content. Under the
`plain text of the statute, YouTube’s recommendation
`system provides access to content, but does not itself
`create or develop content. YouTube is therefore not
`subject to liability. Here is why.
`a. Under Section 230, “[n]o 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). An “interactive computer service” is de-
`fined to include “any * * * access software provider[.]”
`§ 230(f)(2). In turn, an “access software provider” is
`defined as “a provider of software (including client or
`server software), or enabling tools that do any one or
`more of the following:”
`(A) filter, screen, allow, or disallow content;
`(B) pick, choose, analyze, or digest content; or
`(C) transmit, receive, display, forward, cache,
`search, subset, organize, reorganize, or
`translate content.
`§ 230(f)(4).
`Notice the repeated use of the word “content.” In
`defining “access software provider,” Congress con-
`spicuously distinguished between a provider of “soft-
`ware * * * or enabling tools” that provide “access” to
`
`
`
`

`

`8
`
`
`“content”—in myriad ways—and the “content” itself.
`§ 230(f)(4); cf. § 230(f)(2) (defining entities that pro-
`vide mere “access to * * * a computer server” and “ac-
`cess to the Internet”) (emphasis added).
`In contrasting access to content and content itself,
`Section 230 also distinguishes an “access software
`provider” from an “information content provider.” An
`“information content provider” is “any person or enti-
`ty that is responsible, in whole or in part, for the cre-
`ation or development of information provided through
`the Internet or any other interactive computer ser-
`vice.” § 230(f)(3).
`It follows that the “software” or “enabling tools”
`that provide “access” to “content” are not themselves
`providing “information content.” Otherwise, every
`access software provider would be an information
`content provider, and the definition of access software
`provider would be a dead letter.
`“Section
`Indeed, as
`the government notes,
`230(c)(1)” itself “would be a dead letter.” Br. 23. All
`access software providers would be “treated as * * *
`publisher[s]” (§ 230(c)(1)), and all would be subject to
`liability. After all, a “publisher” is “one that makes
`public.” Force v. Facebook, Inc., 934 F.3d 53, 65 (2d
`Cir. 2019) (citing Webster’s Third New Int’l Diction-
`ary 1837 (1981)). And “actively bringing [a speaker’s]
`message to interested parties * * * falls within the
`heartland of what it means to be the ‘publisher’ of in-
`formation.” Force, 934 F.3d at 65 (citation omitted).
`That is just what access software providers do—with
`material from information content providers. But if
`providing access-enabling tools by itself turned access
`software providers into information content provid-
`ers, access software providers would become “pub-
`
`
`

`

`9
`
`
`lisher[s]” of their own content. § 230(c)(1). They
`would thus forfeit the protection of Section 230(c)(1),
`which shields platforms when publishing the content
`of “another.” That cannot be what Congress intended
`in distinguishing access software providers from in-
`formation content providers.
`b. The statute’s definitions, in other words, are
`key to understanding its liability provisions. Section
`230 must protect “interactive computer services when
`they make targeted recommendations of information
`provided by another information content provider”
`(Pet. i) because, in making those recommendations,
`they are acting as access software providers, not as
`information content providers or “publisher[s]” of
`their own content. § 230(c)(1).
`Specifically, interactive computer services are
`providing “enabling tools” that “pick,” “choose,” “or-
`ganize,” “reorganize,” “subset,” and “display” or “for-
`ward” content of others (§ 230(f)(4)) “based upon * * *
`what is known about the viewer” (J.A. 169) (operative
`complaint). By “display[ing]” or “forward[ing]”—or as
`petitioners say, “recommending”—content, these “en-
`abling tools” are providing “access” to content of “an-
`other.” § 230(c)(1). Thus, they are protected as the
`“publisher” of the content of “another.” Ibid.
`Of course, none of this excludes access software
`providers from also enjoying First Amendment pro-
`tection. Whether done by an algorithm or a human,
`choosing, organizing, and forwarding content are con-
`stitutionally protected exercises of “editorial judg-
`ment.” Mia. Herald Publ’g Co. v. Tornillo, 418 U.S.
`241, 255 (1974). But this is not a First Amendment
`case. It is a Section 230 case. And under Section
`
`
`
`

`

`10
`
`
`230, access software providers are protected when
`they publish the content of “another.” § 230(c)(1).
`Petitioners’ error is in assuming that under Sec-
`tion 230, recommending content equals “publish[ing]”
`one’s own content. § 230(c)(1). But petitioners reach
`this conclusion only by ignoring Section 230’s defini-
`tions—indeed, never mentioning the definition of ac-
`cess software provider. § 230(f)(4). But statutory
`terms “‘must be read and interpreted in their context,
`not in isolation.” Sw. Airlines Co. v. Saxon, 142 S. Ct.
`1783, 1788 (2022) (citations and internal quotation
`marks omitted). That is, the Court will interpret a
`statute “as a symmetrical and coherent regulatory
`scheme,” and “fit, if possible, all parts into a[] harmo-
`nious whole.” FDA v. Brown & Williamson Tobacco
`Corp., 529 U.S. 120, 133 (2000).
`Taking that harmonious approach here requires
`consulting Section 230’s definitions, which describe
`“display[ing]” and “forward[ing]” content that a plat-
`form has “cho[sen]” as a way of providing “access” to
`content. § 230(f)(4). Take “forward[ing],” for exam-
`ple. “Forward[ing]” is a synonym of “recommending.”
`The primary definition of “forward,” when used as a
`verb, is “to help onward: PROMOTE” (as in “for-
`warded his friend’s career”). Merriam-Webster’s Col-
`legiate Dictionary 460 (10th ed. 1994). And Section
`230 distinguishes
`“forward[ing]”
`from
`“trans-
`mit[ting]” and “display[ing].” § 230(f)(4)(C). Thus, an
`access software provider may “forward”—that is,
`promote—content that it has “cho[sen]” and enjoy the
`protection of Section 230 because, in so doing, it has
`used “tools” that Congress prescribed for “enabling”
`access to content, rather than for “publish[ing]” its
`own content. § 230(c)(1).
`
`
`
`

`

`11
`
`
`
`Or put the matter the other way around. What,
`one might ask, is an “enabling tool” for “choos[ing]”
`and “display[ing]” or “forward[ing]” content if not an
`automated recommendation system like YouTube’s?
`Petitioners have no answer.
`Nor does the government, which, like petitioners,
`assumes that displaying or forwarding content equals
`saying, “you should watch this.” Br. 27. That is, it
`amounts to “publish[ing]” the platform’s own content.
`§ 230(c)(1). But again, Congress thought otherwise—
`defining displaying or forwarding content as an ena-
`bling tool for providing access to content created by
`others—namely, information content providers.
`c. The government agrees, however, that Section
`230’s definitional provisions are critical to under-
`standing its liability provisions. As the government
`notes (at 23), “[i]t would make little sense for Con-
`gress to specifically include entities that provide ‘en-
`abling tools’ that ‘filter,’ ‘organize,’ and ‘reorganize’
`content as among those to which Section 230(c)(1)
`applies, only to categorically withdraw that protec-
`tion through the definition of ‘information content
`provider.’” Exactly—only the very same argument
`applies to Section 230(c)(1)’s use of the word “pub-
`lisher.” That is, it would make little sense for Con-
`gress to protect “interactive computer services” in
`Section 230(c)(1) through the definition of “enabling
`tools” but withdraw that very same protection by us-
`ing the word “publisher.”
`Either way, it cannot be that the functions that
`qualify platforms for protection also disqualify them
`from that same protection. Resp. Br. 40. Congress
`does not “take away with one hand what [it] has giv-
`en * * * with the other.” Atl. Marine Constr. Co. v.
`
`
`

`

`12
`
`
`United States Dist. Court, 571 U.S. 49, 57 (2013). Ra-
`ther, reading the statute as a “harmonious whole”
`(Brown & Williamson, 529 U.S. at 133), YouTube’s
`automated recommendation system falls in the heart
`of what Congress protected in Section 230.
`B. Holding that YouTube’s automated rec-
`ommendation system is protected as an
`“enabling tool” fits with the law’s ex-
`press purpose statements.
`If there were any doubt about how to interpret
`Section 230 in this case, that doubt would be re-
`solved by the law’s express purpose statements.
`1. This Court relies on express statutory
`purpose statements to clarify the
`proper interpretation of operative text.
`This Court often relies on congressionally enacted
`“legislative findings and purposes that motivate” a
`given statute. Toyota Motor Mfg., Ky. v. Williams,
`534 U.S. 184, 197 (2002). For example, in a unani-
`mous decision, the Court interpreted the Foreign
`Sovereign Immunities Act in part by looking to the
`“primary purposes” expressly stated in the Act. Sa-
`mantar v. Yousuf, 560 U.S. 305, 319–320 (2010).
`Similarly, in another case, the Court held that “[a]ny
`doubt” about a statute’s meaning was “dispelled by
`the record and by formal legislative findings.” Sorrell
`v. IMS Health Inc., 564 U.S. 552, 564 (2011).
`Indeed, Justice Thomas has urged this Court to
`rely on the policy statements in Section 230 itself.
`Nat’l Cable & Telecoms. Ass’n v. Gulf Power Co., 534
`U.S. 327, 359–360 (2002) (Thomas, concurring in part
`and dissenting in part). The question in National
`Cable was whether the FCC had authority to regulate
`
`
`

`

`13
`
`
`certain rates under the 1996 amendments to the
`Communications Act. Writing separately, Justice
`Thomas would have found that the Act reserved that
`rate-governing authority to the FCC in part because
`that would encourage the spread of the internet—
`which is one thing that Congress said it wanted.
`Ibid.

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