Case: 20-2725 Document: 81 Page: 1 Date Filed: 10/28/2021
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`20-2725, 20-2885
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`
`KAREN HEPP,
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`APPELLANT/CROSS-APPELLEE,
`
`V.
`FACEBOOK, INC. and WGCZ S.R.O.,
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`IMGUR INC. and REDDIT, INC.,
`
` APPELLEES;
`
`APPELLEES/CROSS-APPELLANTS.
`
`
`
`On Appeal from the United States District Court
`for the Eastern District of Pennsylvania
`Case No. 2:19-cv-04034
`
`The Honorable John Milton Younge, United States District Court Judge
`
`
`BRIEF OF AMICI CURIAE ELECTRONIC FRONTIER FOUNDATION,
`AMERICAN LIBRARY ASSOCIATION, ASSOCIATION OF COLLEGE
`AND RESEARCH LIBRARIES, ASSOCIATION OF RESEARCH
`LIBRARIES, CENTER FOR DEMOCRACY AND TECHNOLOGY, COPIA
`INSTITUTE, ENGINE ADVOCACY, FREEDOM TO READ
`FOUNDATION, IFIXIT, PUBLIC KNOWLEDGE IN SUPPORT OF
`PETITION FOR REHEARING
`
`
`Kit Walsh
`Corynne McSherry
`ELECTRONIC FRONTIER FOUNDATION
`815 Eddy Street
`San Francisco, CA 94109
`Email: kit@eff.org
`Telephone: (415) 436-9333
`Counsel for Amici Curiae
`
`

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`Case: 20-2725 Document: 81 Page: 2 Date Filed: 10/28/2021
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`CORPORATE DISCLOSURE STATEMENT
`Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amici
`
`Curiae Electronic Frontier Foundation, American Library Association, Association
`
`of College and Research Libraries, Association of Research Libraries, Center for
`
`Democracy and Technology, Floor64, Inc. d/b/a/ The Copia Institute, Engine
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`Advocacy, Freedom to Read Foundation, iFixit, Inc., and Public Knowledge state
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`that they do not have parent corporations and that no publicly held corporation
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`owns 10 percent or more of their stock.
`
`
`
`Dated: October 28, 2021
`
`
`
`
`
`
`By: /s/ Kit Walsh
`Kit Walsh
`Corynne McSherry
`ELECTRONIC FRONTIER
`FOUNDATION
`815 Eddy Street
`San Francisco, CA 94109
`Telephone: (415) 436-9333
`kit@eff.org
`
`Counsel for Amici Curiae
`
`
`
`
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`Case: 20-2725 Document: 81 Page: 3 Date Filed: 10/28/2021
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`TABLE OF CONTENTS
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`FOR PURPOSES OF SECTION 230, “INTELLECTUAL PROPERTY”
`MUST MEAN COPYRIGHT AND PATENT STATUTORY
`
`THE CONSTRUCTION OF SECTION 230(E)(2) IS A QUESTION OF
`EXCEPTIONAL IMPORTANCE THAT WILL IMPACT ONLINE
`
`CORPORATE DISCLOSURE STATEMENT ........................................................ i
`TABLE OF AUTHORITIES ................................................................................. iii
`STATEMENT OF INTEREST ................................................................................1
`INTRODUCTION ....................................................................................................2
`ARGUMENT ...........................................................................................................3
`I.
`MONOPOLIES ..............................................................................................3
`II.
`SPEECH, COMPETITION, AND INNOVATION .......................................8
`A. Congress Intended for Section 230 to be Construed Broadly .............. 8
`B. Exempting Publicity Rights from Section 230 Undermines Speech and
`Competition.......................................................................................... 9
`CONCLUSION ......................................................................................................13
`CERTIFICATE OF BAR MEMBERSHIP ............................................................14
`CERTIFICATE OF COMPLIANCE .....................................................................15
`CERTIFICATE OF SERVCE ................................................................................16
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`Case: 20-2725 Document: 81 Page: 4 Date Filed: 10/28/2021
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`TABLE OF AUTHORITIES
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`Cases
`
`Carson v. Here’s Johnny Portable Toilets,
`698 F.2d 831 (6th Cir. 1983) ............................................................................5, 6
`
`Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,
`521 F.3d 1157 (9th Cir. 1998) ..............................................................................9
`
`Feist Publ'ns, Inc. v. Rural Tel. Serv. Co.,
`499 U.S. 340 (U.S. 1991) .....................................................................................7
`
`Motschenbacher v. R.J. Reynolds Tobacco Co.,
`498 F.2d 821 (9th Cir. 1974) ................................................................................5
`
`Pavesich v. New England Life Ins.,
`50 S.E. 68 (Ga. 1905) ...........................................................................................5
`
`Perfect 10, Inc. v. CCBill, LLC,
`488 F.3d 1102 (9th Cir. 2007) ..............................................................................4
`
`Waits v. Frito-Lay, Inc.,
`978 F.2d 1093 (9th Cir. 1992) ..............................................................................6
`
`White v. Samsung Electronics America,
`989 F.2d 1512 (9th Cir. 1993) ..............................................................................7
`
`Zacchini v. Scripps-Howard Broadcasting Co.,
`433 U.S. 562 (1977) .........................................................................................6, 7
`
`Statutes
`
`17 U.S.C. § 512 .........................................................................................................9
`
`47 U.S.C. § 230 ............................................................................................... passim
`
`Cal. Civ. Code § 3344.1 ............................................................................................8
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`Okla. Stat. Ann. tit. 12 § 1448(A) .............................................................................5
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`Tenn. Code Ann. § 47-25-1101 .................................................................................8
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`Va. Code Ann. § 8.01-40 ...........................................................................................8
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`Other Authorities
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`Blerp, https://blerp.com/ ..........................................................................................12
`
`Dotan Oliar, Making Sense of the Intellectual Property Clause: Promotion of
`Progress as a Limitation on Congress's Intellectual Property Power, 94 Geo.
`L.J.1771 (2006) ....................................................................................................3
`
`Edward Graham, #STARTUPSEVERYWHERE: Dekalb, Ill.,
`Engine (Mar. 6, 2020) ........................................................................................11
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`Edward Graham, #STARTUPSEVERYWHERE: Salt Lake City, Utah,
`Engine (Feb. 21, 2020) .......................................................................................12
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`Jennifer Rothman, Right of Publicity Roadmap,
`https://www.rightofpublicityroadmap.com/ .........................................................5
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`Jennifer Rothman, The Right of Publicity: Privacy Reimagined for a Public World,
`Harvard University Press, 165 (2018) ..................................................................5
`
`Nathan Lindfors, #STARTUPSEVERYWHERE: San Francisco, Calif., Engine
`(Dec. 11, 2020) ...................................................................................................11
`
`Robin Lesher, United for Libraries opens online discussion forums to non-
`members to help provide COVID-19 resources, Pennsylvania Library
`Association (Mar. 23, 2020) ...............................................................................10
`
`Samuel D. Warren & Louis D. Brandeis, The Right to Privacy,
`4 Harv. L. Rev. 193 (1890) ..................................................................................5
`
`Shenkman, C., Thakur, D., Llansó, E. (2021) Do You See What I See? Capabilities
`and Limits of Automated Multimedia Content Analysis. Center for Democracy
`& Technology .....................................................................................................12
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`Case: 20-2725 Document: 81 Page: 6 Date Filed: 10/28/2021
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`STATEMENT OF INTEREST1
`Section 230 is the legal cornerstone of online speech, commerce, and
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`innovation. By vesting online service providers with immunity to claims based on
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`their publishing and editorial functions, Section 230 has promoted free speech and
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`innovation for over 20 years. Amici are public interest groups, library associations,
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`small tech companies, and representatives of the start-up community that,
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`collectively, represent the diverse concerns and perspectives of technology
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`industries and users. Accordingly, amici have a direct and substantial interest in
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`ensuring that the legal rules governing online discourse promote innovation,
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`competition, and free speech—just as Congress intended.
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`
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`
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`1 Pursuant to Federal Rule of Appellate Procedure Rule 29(c), amici certify
`that no person or entity, other than amici, their members, or their counsel, made a
`monetary contribution to the preparation or submission of this brief or authored
`this brief in whole or in part. Amicus iFixit notes that US Policy Lead Kerry
`Sheehan was formerly a Facebook employee.
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`Case: 20-2725 Document: 81 Page: 7 Date Filed: 10/28/2021
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`INTRODUCTION
`Amici urge the Court to grant Facebook’s petition for rehearing, to protect
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`online speech and competition.
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`The panel majority creates a circuit split that will unsettle and undermine
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`Section 230 protections that have enabled decades of innovation and online
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`expression, both issues of exceptional importance.
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`The term “intellectual property” in Section 230(e)(2) refers to copyrights
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`and patents. The majority misconstrues the law and contradicts Congress’s intent
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`by including state right of publicity claims. Publicity rights are a highly variable
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`cause of action rooted in a distinct dignitary purpose: to protect a person’s ability
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`to be free from unwanted exploitation.2 Indeed, that is Ms. Hepp's interest in this
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`very case. If state publicity rights claims were excluded from Section 230
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`immunity, intermediaries could host only as much speech as they could screen
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`beforehand. Wildly varying state law standards will force email providers, social
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`media platforms, and any site with user-generated content to adhere to the most
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`restrictive regime, or risk potentially devastating litigation costs. Litigants around
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`the country will sue platforms for acts of their users, based on publicity rights or
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`other supposed “intellectual property,” and extract settlements from platforms that
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`2 Indeed, Pennsylvania has categorized the claims at issue here as privacy-
`related, not intellectual property. Brief of Appellees/Cross-Appellants Imgur Inc.
`and Reddit, Inc., D.I. 46 at 12-17.
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`Case: 20-2725 Document: 81 Page: 8 Date Filed: 10/28/2021
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`cannot afford to fight. Users who rely on intermediaries to communicate and learn
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`will suffer the consequences.
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`The majority opinion upends the legal landscape and delegates the scope of
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`crucial legal protection to the various states. It requires online sites and services to
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`adopt draconian measures or face financial ruin. Many will simply refuse to host
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`user-generated content at all—and we will all be the poorer for it.
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`I.
`
`ARGUMENT
`FOR PURPOSES OF SECTION 230, “INTELLECTUAL
`PROPERTY” MUST MEAN COPYRIGHT AND PATENT
`STATUTORY MONOPOLIES
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`As the District Court (and the Ninth Circuit) correctly noted, the term
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`“intellectual property” is not defined in Section 230 or the larger statutory scheme
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`and is ill-defined in general.
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`Given the term’s ambiguity, the Court should construe it, consistently with
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`Congress’s intent, to mean the two regimes that clearly fall within its scope:
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`copyrights and patents. Indeed, the Constitutional clause that authorizes these
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`regimes is interchangeably called “the Intellectual Property Clause” and the
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`“Patent and Copyright Clause.” Dotan Oliar, Making Sense of the Intellectual
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`Property Clause: Promotion of Progress as a Limitation on Congress’s
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`Intellectual Property Power, 94 Geo. L.J. 1771 (2006).
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`Both patent and copyright laws embody a fundamental bargain: the public
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`grants a limited monopoly to encourage creativity and innovation and, in exchange,
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`gets full use of that creativity and innovation after that monopoly has expired.3 In
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`addition, both are limited in scope and term. Copyright applies only to original,
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`creative works and includes safeguards such as fair use and limits on secondary
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`liability. Patents cover only new, useful, and non-obvious inventions with even
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`stronger limits on indirect liability, Finally, they are national regimes that
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`specifically preempt parallel state claims. Congress sought uniformity in internet
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`governance, a key factor in the Ninth Circuit’s analysis when it correctly construed
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`Section 230 to bar publicity claims. Perfect 10, Inc. v. CCBill, LLC, 488 F.3d
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`1102, 1118 (9th Cir. 2007).
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`Publicity rights do not share these defining characteristics of “intellectual
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`property.” First, publicity rights derive from common law privacy rights; they are
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`not incentives for innovation enacted pursuant to the IP Clause. The right dates
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`back to the advent of instantaneous photography, which made it easy to capture a
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`person’s image without consent and use it for commercial purposes. Public outrage
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`led to court decisions and statutes determining that the right to be let alone
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`3 Trademark law is instead rooted in consumer protection, ensuring that a
`customer gets the quality they expect and knows what company is responsible if
`something goes wrong or if they want to speak well of the product. Since they do
`not embody the fundamental bargain of "intellectual property," their inclusion
`within that term is inaccurate, a product of sharing superficial characteristics and
`commonly being practiced by lawyers who are also IP specialists.
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`included the right to be free from “unwarranted publicity,” especially commercial
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`publicity. See, e.g., Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905);
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`see also generally Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4
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`Harv. L. Rev. 193 (1890).
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`Thus, the right of publicity is explicitly rooted in privacy interests: it protects
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`individuals “against economic, personal and dignitary injuries” that stem “from
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`unauthorized uses of their identities.” Jennifer Rothman, The Right of Publicity:
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`Privacy Reimagined for a Public World, Harvard University Press, 165 (2018)
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`(“Rothman”).
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`Wildly varying state laws cover misuse of various aspects of a person’s
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`“identity.” See generally Rothman’s Right of Publicity Roadmap,
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`https://www.rightofpublicityroadmap.com/ (all websites last visited Oct. 22, 2021).
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`Some states specifically define the aspects of a person’s identity that may be the
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`basis of a claim, e.g., Okla. Stat. Ann. tit. 12 § 1448(A) (name, voice, signature,
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`photograph, or likeness), while other state laws bar virtually any use that evokes a
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`person, including names, faces, voices, signature, a car, a robot, gestures,
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`mannerisms, and even a catchphrase used by someone else to refer to them.
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`Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974)
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`(modified race car); Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831
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`(6th Cir. 1983) (famous phrase referring to talk show host). Many states do not use
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`the term “publicity rights” at all, but covering similar ground through false
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`endorsement and invasion of privacy regimes. The right even extends to
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`noncommercial contexts, including artistic representations of civil rights heroes
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`and political campaigns. Rothman at 5.
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`There is no threshold requirement to invent a novel, creative personality or
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`likeness before the dignitary right to privacy kicks in, because publicity rights do
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`not exist to promote creativity or invention. No legal incentive is necessary to
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`ensure that people have identities. Singers do not need extra incentives to develop
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`a distinctive voice. See Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992)
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`(imitation of singer’s voice in commercial). And if anyone was encouraged to
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`develop a catchphrase for Johnny Carson, it was Ed McMahon. 698 F.2d at 838
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`(Kennedy, Cir. J., dissenting). Rather than embodying intellectual property,
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`publicity rights clash with those regimes because they are concerned with very
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`different interests.
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`In an unusual case where a person’s entire performance was appropriated,
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`the Supreme Court in dicta related publicity rights to intellectual property by
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`suggesting that the right of publicity provided an economic incentive to invest in
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`the performance. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 573
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`(1977). However, a right of publicity claim does not traditionally depend on any
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`such investment, and the Supreme Court has also made clear that intellectual
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`property regimes do not exist to reward the “sweat of the brow” of creators, but to
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`benefit the public through the dissemination of new inventions and creative works.
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`Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (U.S. 1991). The Zacchini
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`dicta described a side effect of the right of publicity: as with any right to bar
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`another’s harmful behavior, the right has the effect of encouraging investment in
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`the thing that might be harmed. That effect does not transform every such right into
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`“intellectual property" regime. Zacchini explicitly did not avail himself of
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`intellectual property because he did not record his performance in a tangible
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`medium as required by copyright law; he did not fulfill his end of the public
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`bargain by providing a tangible, reproducible creation that the public could use
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`subject to the limited monopoly of copyright. Instead, his remedy was limited to
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`the harm to his dignitary interest. Indeed, extending the right of publicity into the
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`realm of intellectual property rather than dignitary concerns would likely conflict
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`with federal copyright law, further reinforcing the understanding that its proper
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`scope lies outside of IP. As Judge Kozinski noted in White v. Samsung Electronics
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`America:
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`[I]t’s now a tort for advertisers to remind the public of a
`celebrity... This Orwellian notion withdraws far more
`from the public domain than prudence and common sense
`allow. It conflicts with the Copyright Act and the
`Copyright Clause.
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`989 F.2d 1512, 1514 (9th Cir. 1993) (Kozinski, J., dissenting) (emphasis added).
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`Second, unlike intellectual property rights, the term limit of the right of
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`publicity has reflected its status as a privacy right and ends at death in many states.
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`Some states have created post-mortem rights, which are highly variable, lasting
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`from 20 years to potentially forever. E.g., Va. Code Ann. § 8.01-40 (20 years
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`postmortem); Cal. Civ. Code § 3344.1 (70 years postmortem); Tenn. Code Ann.
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`§ 47-25-1101 et seq. (as long as the identity is used).
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`Finally, publicity rights clash with Congress’s vision of national uniformity,
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`subjecting platforms to highly variable regimes they have little opportunity to
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`influence and are unlikely to be aware of.
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`Copyrights and patents are relatively clear, relatively knowable, and embody
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`a longstanding balance between rightsholders, future creators and inventors, and
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`the public at large. Publicity rights are none of these things. Instead, they bear
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`every characteristic of the other state torts included within Section 230’s
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`immunities.
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`II. THE CONSTRUCTION OF SECTION 230(E)(2) IS A QUESTION OF
`EXCEPTIONAL IMPORTANCE THAT WILL IMPACT ONLINE
`SPEECH, COMPETITION, AND INNOVATION
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`A. Congress Intended for Section 230 to be Construed Broadly
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`Section 230 was “enacted to protect [intermediaries] against the evil of
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`liability” and litigation based on user-generated content—liability that would
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`otherwise represent an existential threat. Fair Housing Council of San Fernando
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`Valley v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir. 2008) (internal
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`quotation marks and citation omitted). Against this background, Congress plainly
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`intended a narrow and well-defined carveout for intellectual property rather than a
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`freewheeling, open-ended one.
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`Having exempted federal copyright claims from Section 230, Congress also
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`established copyright safe harbors by enacting Section 512 of the Digital
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`Millennium Copyright Act. Thanks to Section 512, a provider can rest assured that
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`it will not be held liable for user uploads so long as it complies with the safe
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`harbor’s requirements. At the same time, copyright owners can trigger the removal
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`of content with a simple notice. Critically, the user can then have the content
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`restored by submitting a counternotice, providing protection for lawful speech.
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`Thus, having excluded intellectual property from Section 230, Congress
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`acted to fill that regulatory gap and ensure that the multitude of potential copyright
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`claims would not chill online platforms. Allowing publicity rights to qualify as
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`“intellectual property” under Section 230 would re-open the floodgates.
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`B.
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`Exempting Publicity Rights from Section 230 Undermines Speech
`and Competition
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`Congress did not choose to protect intermediaries for their own sake, but for
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`the sake of all of us who rely on them. Section 230 led to the emergence of all
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`kinds of new products and forums and, crucially, kept the door open for
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`competitors to follow. Today, users dissatisfied with dominant social media can
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`turn to Discord, Mastodon, Parler, Clubhouse, TikTok, and Rumble. Dissatisfied
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`Gmail users can turn to Outlook, Yahoo, and many others. None of these entities,
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`entrenched or emergent, would exist without Section 230.
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`The majority opinion narrows that doorway, with intermediaries facing
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`potential litigation and liability not only for images and video, but mere text. The
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`consequences are not difficult to imagine. To take a few practical examples:
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`to host users’ pictures of friends wearing the sweaters they have made.
`with a celebrity incorrectly.
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`• A knitting site like Ravelry.com, which also has ads, would be unable
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`• A news site, like Democratic Underground, would have to shut down
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`its discussion forums, for fear its users might use a phrase associated
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`• Libraries would face pressure to monitor and restrict patrons’ use of
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`web services, which is at odds with their commitments to privacy, free
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`expression, and access to knowledge.4 The fact that libraries
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`themselves are generally noncommercial in organization and mission
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`would not suffice to shield them: some publicity rights statutes reach
`
`
`4 Robin Lesher, United for Libraries opens online discussion forums to non-
`members to help provide COVID-19 resources, Pennsylvania Library
`Association (Mar. 23, 2020), https://www.palibraries.org/blogpost/1652016/34473
`1/United-for-Libraries-opens-online-discussion-forums-to-non-members-to-help-
`provide-COVID-19-resources.
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`noncommercial activities and patrons use library services for many
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`things, including advertisements and other commercial uses of online
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`forums.
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`• Email providers would have to find a way to scan communications to
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`ensure that users are not forwarding material that might evoke an
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`identity for some commercial purpose, degrading not only speech but
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`privacy as well.
`others.5
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`• An online platform for job seekers and potential employers would
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`have to prevent users from abusing the site by posting profiles of
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`• Online annotation site Fiskkit,6 which allows its users to comment on
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`news reports to flag false or misleading information, would have to
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`screen those comments to ensure no names, images, or phrases
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`associated with a person are used.
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`• Blerp, a platform for sharing audio clips, would have to ensure users
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`are not sharing audio that includes voices or sounds associated with a
`
`
`5 Edward Graham, #STARTUPSEVERYWHERE: Dekalb, Ill., Engine (Mar.
`6, 2020), https://www.engine.is/news/startupseverywhere-dekalb-ill
`6 Fiskkit, https://fiskkit.com; Nathan Lindfors, #STARTUPSEVERYWHERE:
`San Francisco, Calif., Engine (Dec. 11, 2020)
`https://www.engine.is/news/startupseverywhere-sanfrancisco-calif-fiskkit.
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`person.7
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`Section 230’s safe harbor reflects Congress’s understanding that the cost of
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`defending countless state lawsuits — even meritless ones — would be ruinous for
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`speech and innovation online. This is doubly true for the right of publicity, a strict
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`liability tort in many states. Tech giants might survive this flood of litigation, but
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`nonprofits and start-ups would not. Nor can such platforms obtain consent from
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`non-users who might be referenced on their platform. Likewise, it is simply
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`impossible for today’s technology to evaluate text and imagery to reliably identify
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`potential violations of the right of publicity, given how deeply such claims are
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`connected to context, cultural conventions, and consent.8
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`Congress intended “to preserve the vibrant and competitive free market that
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`presently exists for.... interactive computer services, unfettered by Federal or State
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`regulation.” 47 U.S.C. § 230(b)(2). A publicity rights carveout would do the
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`opposite: further consolidating the technology sector and undermining Americans’
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`online expression and privacy.
`
`
`7 Blerp, https://blerp.com/; Edward Graham, #STARTUPSEVERYWHERE:
`Salt Lake City, Utah, Engine (Feb. 21, 2020),
`https://www.engine.is/news/startupseverywhere-salt-lake-city-utah
`8 Shenkman, C., Thakur, D., Llansó, E. (2021) Do You See What I See?
`Capabilities and Limits of Automated Multimedia Content Analysis. Center for
`Democracy & Technology, https://cdt.org/wp-content/uploads/2021/05/2021-05-
`18-Do-You-See-What-I-See-Capabilities-Limits-of-Automated-Multimedia-
`Content-Analysis-Full-Report-2033-FINAL.pdf.
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`CONCLUSION
`The majority’s interpretation of Section 230 would create a circuit split and
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`eviscerate Section 230’s protections, a matter of exceptional importance. It
`
`requires further review from this Court.
`
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`Dated: October 28, 2021
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`By: /s/ Kit Walsh
`Kit Walsh
`Corynne McSherry
`ELECTRONIC FRONTIER
`FOUNDATION
`815 Eddy Street
`San Francisco, CA 94109
`Telephone: (415) 436-9333
`kit@eff.org
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`Counsel for Amici Curiae
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`Case: 20-2725 Document: 81 Page: 19 Date Filed: 10/28/2021
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`CERTIFICATE OF BAR MEMBERSHIP
`The undersigned certifies pursuant to Third Circuit Local Appellate Rule
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`46.1 that I, Kit Walsh, am a member of the bar of this Court and was admitted on
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`July 2, 2013.
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`Dated: October 28, 2021
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`By: /s/ Kit Walsh
` Kit Walsh
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`- 14 -
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`Case: 20-2725 Document: 81 Page: 20 Date Filed: 10/28/2021
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`CERTIFICATE OF COMPLIANCE
`That I, Kit Walsh, counsel for Amici Curiae, hereby certify that the
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`following statements are true:
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`The foregoing brief of Amici Curiae complies with the type-volume
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`limitation of Fed. R. App. P. 29(a)(4) and Fed. R. App. P. 29(b)(4). The brief is
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`printed in proportionally spaced 14-point Times New Roman font, using
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`Microsoft® Word for Mac 365 and there are 2,565 words in the brief according to
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`the word count of the word-processing system used to prepare the brief (excluding
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`the parts of the brief exempted by Fed. R. App. P. 32(f)). The brief complies with
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`the typeface requirements of Fed. R. App. P. 32(a)(5), and with the type style
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`requirements of Fed. R. App. P. 32(a)(6).
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`The electronic file of this brief was scanned with antivirus Virustotal version
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`3.0 and no virus was detected.
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`Dated: October 28, 2021
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`By: /s/ Kit Walsh
` Kit Walsh
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`Counsel for Amici Curiae
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`- 15 -
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`Case: 20-2725 Document: 81 Page: 21 Date Filed: 10/28/2021
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`CERTIFICATE OF SERVCE
`I certify that on October 28, 2021 I electronically filed the foregoing with
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`the Clerk of the Court for the United States Court of Appeals for the Third Circuit
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`using the CM/ECF system. All participants in the case are registered CM/ECF
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`users and that service will be accomplished by the appellate CM/ECF system.
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`Dated: October 28, 2021
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`By: /s/ Kit Walsh
` Kit Walsh
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`Counsel for Amici Curiae
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`- 16 -
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