EFF Warns Supreme Court That Users’ Speech is at Stake When Increasing Platforms’ Liability
Narrowing the scope of Section 230's protections would increase censorship and threaten the free and open internet.

January 19, 2023

Increasing online platforms’ liability for hosting their users’ speech would lead to severe censorship that could undermine the very architecture of the free and open internet, the Electronic Frontier Foundation (EFF) argued to the U.S. Supreme Court in a brief filed Thursday.

EFF filed the friend-of-the-court brief in Gonzalez v. Google, in which the petitioners seek a narrow interpretation of a key law protecting users’ speech online, 47 U.S.C. § 230 (Section 230). Narrowing Section 230 would drastically erode the significant benefits that Congress envisioned in enacting the 1996 law. Platforms facing a potential onslaught of litigation are going to be unwilling to take a chance on provocative or unpopular speech. The Supreme Court risks artificially stunting the global online marketplace of ideas, creating a sanitized, bland, homogenous online experience.

Nearly everyone who speaks online relies on Section 230. That’ s because the law generally ensures that the hosts of speech are not responsible for what is said by others. The reach of Section 230 is broad – from small blogs and websites to giants like Facebook and Google. And courts have repeatedly ruled that Section 230 bars suits against users and services for forwarding email, hosting online reviews, or sharing photos or videos that others find objectionable. The legal protection helps hosts curate the speech they allow, giving them the legal breathing room to decide what type of user expression they will host and take steps to moderate content as they see fit.

The Gonzalez petitioners want the court to narrow Section 230’ s immunity so it would not apply to online platforms when they use algorithms to target users and recommend someone else’s content. The petitioners also argue that Section 230 should not protect services when they enable users to find and share content via URLs, the website addresses that we all rely on to get where we want to go online.

Any ruling that weakens Section 230 “would be detrimental to all users’ speech online,” EFF’ s brief argues, driving “ fundamental changes to how online platforms operate, including an increase in censorship of user content.”

The petitioners’ URL argument is particularly concerning because the entire point of hosting the speech of others is so others can see it. If providing a URL to content – that is, giving a website address – falls outside Section 230, then all hosting of third-party content is unprotected. This outcome would erect great barriers preventing users from communicating and finding each other online.

“ Under this new legal regime, intermediaries would hesitate to make content accessible via URL,“ the brief says. “ Searching and sharing would be severely limited. Content could exist online but only in an unindexed vacuum. A content creator or original poster may be able to see the content they uploaded, but online platforms would prevent other users from knowing where to find it or how to share it. YouTube, for example, would simply never let other people watch user-generated videos at the scale it does today, as all user-generated content on the site is accessed via URLs.”

The U.S. Court of Appeals for the Ninth Circuit rejected the petitioners’ arguments. The U.S. Supreme Court granted review and is scheduled to hear the case on Feb. 21.

For the brief: www.eff.org/document/gonzalez-v-google-amicus-brief

For more on Section 230: www.eff.org/issues/cda230

Contact:
Aaron Mackey
Sophia Cope
Mukund Rathi