INTRODUCTION AND SUMMARY OF ARGUMENT

Section 230(c)(1) of the Communications Decency Act states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Petitioners claim that YouTube’s algorithmic recommendations of third-party content based on users’ past engagement with other content does not qualify for Section 230’s protection.

Over the course of this litigation, Petitioners have attempted to support this argument with two mutually incompatible theories. First, in their petition for certiorari, Petitioners relied on recent lower-court dissents and “reluctant concurrences” that argued Section 230 protections are contingent on passing a novel “traditional editorial functions” test. The petition urged that this test should indeed be used to determine whether Section 230 applies, and that the use of content recommendation algorithms fails this test.

In their brief on the merits, Petitioners now claim that, under a different test that has conventionally been used by the lower courts to resolve Section 230 cases, YouTube’s recommendation algorithms do not qualify for Section 230 protection.

Both theories are wrong. Petitioners’ “traditional editorial functions” test is unsupported by the text of Section 230, and it is not even consistent with the lower-court decisions that purportedly make use of it. The conventional, three-pronged “Barnes test,” which lower courts typically use to determine whether Section 230 applies, is a much better fit. This Court should adopt the Barnes test rather than Petitioners’ conception of the “traditional editorial functions” test.

Further, Google’s algorithmic recommendations satisfy all three prongs of the Barnes test and are thus entitled to Section 230 protection. Contrary to Petitioners’ suggestion, YouTube’s labeling relevant videos with the words “up next” does not void Section 230 protection, just as a newspaper guiding readers to the remainder of a front-page story with the words “continued on page 25” would not void that newspaper’s own legal protections. Nor does YouTube lose Section 230 protection for arranging its site in a way that is navigable and relevant for its readers. A newspaper does not waive otherwise applicable legal protections for publishing an article when it puts that article on the front page, and YouTube does not lose protections for hosting a video when its algorithm makes that video “up next.” And even if recommendations were distinct pieces of content rather than necessary byproducts of organizing content, those recommendations would be generated by user inputs subject to neutral algorithmic rules and thus not speech developed by YouTube.

Finally, a ruling for Petitioners would lead to dire consequences for online speech, thwarting the purpose of Section 230. The new risk of liability would lead websites to remove many of the functionalities that have allowed online readers to find speech relevant to their interests, a crucial tool that has accelerated the growth of the marketplace of ideas like nothing before. A ruling for Petitioners would contravene both the letter and the spirit of Section 230, and the ability of speakers and listeners to use online platforms to their fullest potential would be severely hampered.

Accordingly, the Court should affirm the Ninth Circuit’s decision and deny Petitioners’ claim as barred by 47 U.S.C. § 230(c)(1).

Read the full brief here.