Today, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Third Circuit to grant full-court review of a deeply incorrect panel decision gutting Section 230. The panel ruled that Section 230 does not protect algorithmic recommendations. To reach that erroneous result, the panel had to brush aside the well-reasoned decisions of other circuits, misread or ignore multiple Supreme Court decisions, and trip into a basic fallacy about how Section 230 works.

“Section 230 protecting algorithmic recommendations is Section 230 working precisely as designed,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “This is the first appellate decision to conclude that such recommendations are not protected by Section 230. Many decisions go the other way; the panel has created both an inter-circuit and intra-circuit split. The panel finds itself alone for good reason: The decisions running against it are sound. They recognize that Section 230 protection hinges on who created the content, not how a website presents content created by others.”

“The panel’s decision stands on a basic fallacy about how Section 230 works,” Barthold continued. “The panel assumed a lack of overlap between the First Amendment and Section 230. It assumed that, because recommendations are a website’s own First Amendment-protected expression, they fall outside Section 230’s liability shield. But a website’s decision simply to host a third party’s speech at all is also First Amendment-protected expression. By the panel’s misguided logic, Section 230’s key provision—Section 230(c)(1)—is a nullity; it protects nothing. That makes no sense.”   

“To fly so far off the rails, the panel had to misread one Supreme Court decision and ignore another,” Barthold concluded. “The panel assumed that Moody v. NetChoice (2024)—which never even mentions Section 230—overrules a swath of Section 230 precedents. Meanwhile, the panel failed to grapple with the fact that, in Gonzalez v. Google (2023)—an actual Section 230 case—the justices considered, but declined to adopt, exactly the reading of Section 230 the panel adopted here. The full Third Circuit needs to step in and erase the panel’s outlier decision.”

TechFreedom was pleased to have Media Law Resource Center join the brief.

The case is Anderson v. TikTok Inc, No. 22-3061 (3rd Cir.).

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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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