Large social-media platforms predictably favor an expansive reading of section 230 immunity that maximizes their discretion while minimizing their potential liability. But while section 230 is important to preserving free expression, it was not designed to immunize platforms from traditional common law liability for their own speech. Nor was section 230 crafted to act as a blanket shield against liability for traditional causes of action unrelated to free expression, such as breach of contract, fraud, and discrimination.

In suggesting or allowing for such interpretations, both parties misread section 230. The statute protects platforms from liability arising from others’ exercise of editorial discretion, but not from liability flowing as a consequence of the platforms’ own speech. That same distinction extends to the promotion of content by way of an algorithm. An algorithm is just a formula for reaching a result. Accordingly, the courts need more information to resolve this case, because it is unknownwhether Google’s recommendations at issue here are simply a pass-through mechanism for third parties’ speech, reflect users’ deliberate choices, or are Google’s own speech.

Read the full amicus brief here.

Institute for Free Speech and Prof. Adam Candeub, Sixth Circuit Court of Appeals (December 5, 2022)

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