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Bipartisan Policy Center’s Amicus Brief on Gonzalez v. Google

Gonzalez v. Google will be the first  Supreme Court  ruling on Section 230 of the Communication Decency Act of 1996 (CDA). In its passage, Members of Congress widely supported this carefully crafted, bipartisan legislation. It grants interactive computer service providers immunity for content published on their platforms. This legislation is generally considered crucial to the growth of the modern Internet, including digital commerce, social media platforms, and providing a vast marketplace of ideas. When enacting this law 27 years ago, Congress could not have envisioned the Internet as we know it today, nor the various positive and negative consequences it would have on our society.   

BPC submitted an amicus curiae brief in support of Respondent Google LLC to express the view that Congress is most suitable to address the scope of immunity granted by Section 230, not the judiciary.  

Detailed Argument 

  • Section 230 is the result of bipartisan legislation. Section 230 was originally introduced by two legislators on opposite sides of the political spectrum, Rep. Christopher Cox (R-CA) and Rep. Ron Wyden (D-OR), to protect speech and promote the development of the internet. The broad consensus and bipartisan support for this legislation indicates that it was well-crafted and widely accepted as an effective solution to content regulation issues. 
  • The Courts’ consistent interpretation of Section 230 for nearly three decades is the foundation of the modern Internet. By shielding interactive computer service providers from liability for content published on their platforms, Section 230 has allowed them to grow into platforms we interact with daily and led to significant developments of services and technologies underpinning the Internet. It also has led to negative consequences such as harmful or illegal content online, prompting many to call for Section 230 reform. However, the law’s consistent interpretation over time suggests the negative consequences in recent years are a result of the evolving technologies and how they are used, rather than the law itself. 
  • Any issues arising from changes in technology, or the immunity afforded by Section 230 should be addressed by Congress, not the judiciary branch. Congress has repeatedly exhibited its authority to rectify Section 230 in response to shifting social conditions or judicial rulings. It has ratified the broad immunity Section 230 grants several times throughout history and preserved its protections when enacting other statutes. It has also demonstrated a willingness to resolve issues with the legislation to ensure the law adapts to address today’s challenges, in line with its original intent. For example, after a First Circuit ruling that demonstrated the CDA failed to protect sex trafficking of minors, Congress quickly passed Fight Online Sex Trafficking Act of 2017 (FOSTA-SESTA), adding a new subsection (e)(5) to Section 230 excluding sex trafficking claims and criminal charges from Section 230 immunity.  

BPC respectfully asks the Court to refrain from upending Section 230, which is so deeply rooted in the laws constituting the Internet. It should afford Congress the choice to amend or change the scope of Section 230 based on its legislative intent. The Court is best suited to provide checks and balances on any legislation enacted by Congress, meanwhile, allowing Congress to proceed engaging in a thoughtful and thorough decision-making process. 

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