Today, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Ninth Circuit to affirm a ruling that Section 230 protects app stores and social media platforms from liability for carrying, and sharing data with, casino-style gaming apps.
The plaintiffs allege, among other things, that app stores and platforms benefit developers of these apps by providing them “data analytics” on how the apps are performing. As TechFreedom’s brief explains, this theory of liability is foreclosed by the briefs, argument, and ruling in the recent Supreme Court case Gonzalez v. Google.
“Courts should not try to draw arbitrary lines separating what is and is not protected by Section 230,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “In Gonzalez, the federal government purported to offer the Supreme Court a clean line between ‘hosting’ content (protected by Section 230) and ‘recommending’ it (not protected). As became clear at oral argument, however, the justices found this line to be unworkable—indeed, illusory.”
“The Supreme Court’s Gonzalez (non-)ruling resolves most of this appeal,” Barthold continued. “Recognizing that there’s no sound way to judicially narrow Section 230, the justices wisely did not try to do so. They issued a short unsigned opinion that left the Section 230 status quo in place. The Ninth Circuit, in this case, should follow the high court’s lead. It should not step in and try to do ‘better’ than the justices. It should not try to draw lines the justices could not draw.”
“Section 230 broadly protects the publishing of third-party content,” Barthold concluded. “Publishers benefit those they publish in many ways—e.g., by recommending their content, by offering them edits and other feedback, and, as here, by giving them information that shows how well their content is performing. Just as the Supreme Court could not parse degrees of ‘recommendation’ benefit, this Court should not try to parse degrees of ‘information’ benefit. The message of Section 230—and of the briefing, oral argument, and decision in Gonzalez—is that publishing activity is protected, period.”
The case is the Simulated Casino-Style Games Litigation, Nos. 22-16888, -16889, -16914, -16916, -16921, -16923 (9th Cir.).
Find this brief and release on our website, and share it on Twitter, Bluesky, Mastodon, Facebook, and LinkedIn. We can be reached for comment at firstname.lastname@example.org. Read our related work, including:
- OA753: Gonzalez v. Google: The Case That (Didn’t) Break the Internet, Opening Arguments Podcast (Jun. 1, 2023)
- Our press release on the Twitter v. Taamneh and Gonzalez v. Google rulings (May 18, 2023)
- Section 230 Spring Summit, American Enterprise Institute (Apr. 19, 2023)
- Four Things to Watch in Gonzalez v. Google, FedSoc Blog (Mar. 17, 2023)
- Our podcast #340: Making Sense of the SCOTUS Internet Speech Cases (Mar. 17, 2023)
- Don’t Repeal the Law That Created the Internet, Ripon Society (Feb. 23, 2023)
- Our podcast #338: Gonzalez v. Google (Feb. 14, 2023)
- Our amicus brief in Gonzalez v. Google, U.S. Supreme Court (Jan. 18, 2023)
- Section 230 Heads to the Supreme Court, Reason (Nov. 4, 2022)
- Our podcast #331: Section 230’s Long Path to SCOTUS (Oct. 31, 2022)
- Our letter on Section 230 and the American Innovation and Choice Online Act (June 27, 2022)
- What Is Section 230 and How Is It Different Than the First Amendment?, Foundation for Economic Education (May 27, 2022)
- Section 230 Continues To Not Mean Whatever You Want It To, Techdirt (July 9, 2021)
- The Wall Street Journal Misreads Section 230 and the First Amendment, Lawfare (Feb. 3, 2021)
- We Need Section 230 Now More Than Ever, Protocol (Jan. 11, 2021)
- Section 230: An Introduction for Antitrust & Consumer Protection Practitioners, Global Antitrust Institute, (Nov. 11, 2020).
- Our comments to the FCC on rulemaking to clarify provisions of Section 230 (Sep. 2, 2020)
- Our Supreme Court amicus brief in Malwarebytes Inc. v. Enigma Software Group USA, LLC (June 12, 2020)
- Our written testimony on platform responsibility & Section 230 to the U.S. House Judiciary Committee (Apr. 26, 2018)
About TechFreedom: 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.