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Legislation to secure children’s safety online is all the rage right now, not only on Capitol Hill, but in state legislatures across the country. One of the favored approaches is to impose on platforms a duty of care to protect teen users.

For example, Sens. Richard Blumenthal (D-Conn.) and Marsha Blackburn (R-Tenn.) have reintroduced the Kid’s Online Safety Act (KOSA), which would require that social-media platforms “prevent or mitigate” a variety of potential harms, including mental-health harms; addiction; online bullying and harassment; sexual exploitation and abuse; promotion of narcotics, tobacco, gambling, or alcohol; and predatory, unfair, or deceptive business practices.

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According to an old English proverb, children are meant to be seen and not heard. But if we aren’t careful with new online-safety legislation, kids will be neither seen nor heard in online spaces.

There has been no shortage of stories in recent months focusing on the real harms associated with teens on social media, which the platforms have already invested in mitigating in response to market demand from parents, advertisers and teens themselves. Far less attention has been paid to the benefits that teens today enjoy in terms of increased connections and access to information that was previously unimaginable in an offline world.

While the impact of social media on the mental health of children and teens has rapidly emerged as a hot-button political debate, the federal government has largely stalled in passing any legislation on the issue.

Instead, the states have led the way, with Utah and Arkansas both passing laws intended to protect children’s online safety in recent weeks. Other states – including Florida, Texas and California – are also considering bills that would apply to social-media services used by minors.

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The topic of social media’s impact on childhood mental health has rapidly emerged as a hot-button political debate, becoming the subject of a hearing of the Senate Judiciary Committee and earning a mention in President Joe Biden’s State of the Union address.

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Imagine that Florida’s financial regulators told banks and insurance companies that they should consider the risk that working with Planned Parenthood might pose to them. Or that Texas’s regulators said that banks and insurance companies should consider whether serving organizations that support undocumented migrants might damage their reputations. Alarming, right?

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The free speech wars are escalating at North Carolina’s flagship university.

At its January, meeting the University of North Carolina at Chapel Hill board of trustees directed the university administration to “accelerate its development of a School of Civic Life and Leadership.” Not surprisingly, the mandate has led to objections from UNC faculty members asserting that it is their province to determine curriculum. The president of the Southern Association of Colleges and Schools’ Commission on Colleges, Belle Wheelan, has weighed in suggesting that the university’s accreditation may be at risk if the trustees don’t rescind their directive.

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SUMMARY OF ARGUMENT

An interactive computer service’s automated recommendations qualify for statutory immunity under Section 230(c)(1). Congress enacted this policy choice in clear text, supported by powerful statutory context, including express findings and purposes that it wrote into the statute itself. And Congress did so in service of a national policy favoring free and open discourse on the still developing internet—a policy that has proved enormously successful in the years since. This Court should resist Petitioners’ invitation to impose sweeping changes on the Nation’s internet policy, and instead leave any such changes if they ever prove necessary—to Congress.

Section 230’s text should decide this case. Section 230(c)(1) immunizes the user or provider of an “interactive computer service” from being “treated as the publisher or speaker” of information “provided by another information content provider.” And, as Section 230(f)’s definitions make clear, Congress understood the term “interactive computer service” to include services that “filter,” “screen,” “pick, choose, analyze,” “display, search, subset, organize,” or “reorganize” third-party content. Automated recommendations perform exactly those  functions, and are therefore within the express scope of Section 230’s text.

Section 230(c)(1)’s use of the phrase “treated as the publisher or speaker” further confirms that Congress immunized distributors of third-party information from liability. At common law, a distributor of third-party information could be held liable only when the doctrine permitted the distributor to be treated as the publisher. As Petitioners and the United States agree, Congress understood and incorporated that common-law meaning of “treated as the publisher” into Section 230(c)(1). Given that a distributor cannot be “treated as the publisher” of certain third-party information, however, there is no alternative mechanism for holding the distributor liable based on the improper character of the information. Indeed, Congress enacted Section 230(c)(1) specifically to avoid the sweeping consequences that the common-law regime of knowledge-based distributor liability would inflict on the developing internet.

Section 230(c)(1)’s surrounding and subsequent statutory context bolsters this conclusion. Section 230(c)(1) provides the same protection to “user[s]” as to “provider[s]” of interactive computer services. Petitioners do not defend the position that users who like, retweet, or otherwise amplify third-party content should be held liable for the character of that content, but Section 230(c)(1)’s text renders that an inescapable consequence of their argument. The better inference is that Congress chose to protect a wide range of speech and speech-promoting conduct for providers and users of interactive computer services alike. In addition, other statutory enactments illustrate that Congress knew how to impose liability on distributors when it wanted to—such as in the Digital Millennium Copyright Act, for example, where Congress also wrote a detailed notice-and-takedown framework into the statute to ensure that distributors received adequate procedural protections as well.

Petitioners’ and the United States’ attempts to distinguish between mere automated recommendations (for which distributors purportedly could be liable) and the recommended content (for which they could not) find no support in the text. To the contrary, the text makes clear that even a bare automated recommendation constitutes “pick[ing]” or “choos[ing]” content, an activity expressly contemplated by Section 230. Moreover, to hold a distributor liable based in part upon the improper content of information created by a third party would conflict with the common-law meaning of the terms Congress chose.

Congress enacted Section 230(c)(1) to protect the continuing development of the internet and ensure that it would remain a national forum for the free exchange of ideas. This is a case where the statutory text successfully implements Congress’s purposes by providing broad protections to automated recommendations of third-party information. But this Court need not guess at Congress’s purposes here, as it might be reluctant to do in a different case, because Congress enacted its purposes into the statute itself. Those purposes are part of the statutory text like any other statutory text, and deserving of the respect this Court would give to any text that passed through bicameralism and presentment into law. If any changes to our Nation’s statutory regulation of the internet are necessary, this Court should leave them to Congress.

Read the full brief here.

Later next month, the U.S. Supreme Court will hear oral arguments in Gonzalez v. Google LLC, a case that has drawn significant attention and many bad takes regarding how Section 230 of the Communications Decency Act should be interpreted. Enacted in the mid-1990s, when the Internet as we know it was still in its infancy, Section 230 has grown into a law that offers online platforms a fairly comprehensive shield against liability for the content that third parties post to their services. But the law has also come increasingly under fire, from both the political left and the right.

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Twitter has seen a lot of ups and downs since Elon Musk closed on his acquisition of the company in late October and almost immediately set about his initiatives to “reform” the platform’s operations.

One of the stories that has gotten somewhat lost in the ensuing chaos is that, in the short time under Musk, Twitter has made significant inroads—on at least some margins—against the visibility of child sexual abuse material (CSAM) by removing major hashtags that were used to share it, creating a direct reporting option, and removing major purveyors. On the other hand, due to the large reductions in Twitter’s workforce—both voluntary and involuntary—there are now very few human reviewers left to deal with the issue.

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