Amicus brief in Google v Hood
Amici Curiae submit this brief because the stakes of this case go well beyond the particular burden the attorney general’s investigation may place on one service provider. This litigation raises a broader question: whether Section 230 of the Communications Decency Act (“Section 230”) precludes a state official from saddling any Internet service provider with burdensome and costly discovery based primarily on the provider’s refusal to monitor, take down or block disfavored third-party content. Given Section 230’s plain language, and its all-but-universal interpretation by the courts, this court should find that it does.
A holding to the contrary would contravene Congress’ intent in enacting the statute, to the detriment of not only large service providers like the plaintiff, but also to small service providers and the Internet users who rely on their platforms to communicate, learn and organize. One of Congress’ primary goals in passing Section 230 was to encourage the development of the Internet as a platform for speech by shielding intermediaries not only from liability, but also from the heavy legal burden of complying with legal process related to third-party content.
Simply put, requiring online service providers either to respond to subpoenas directed primarily at third-party conduct —or to engage in protracted and expensive litigation to challenge their propriety—could result in extraordinary costs for those providers. Although some large service providers may have the resources to shoulder significant discovery burdens, a small online service provider likely would not. Smaller providers would therefore likely either adopt the restrictions required to avoid such a burden or leave the business altogether, depriving users of valuable platforms for speech. Either outcome would, in turn, chill the online speech of Internet users who communicate via these platforms—exactly the result Congress sought to avoid.
In keeping with both the statutory text and Congress’ intent, the kind of burden presented here should only be incurred where the party seeking discovery can show specific, non-speculative allegations of conduct not immunized by Section 230. Accordingly, this court should find that the interrogatories and document requests in the attorney general’s subpoena directed at third-party content are barred by Section 230, deny the attorney general’s motion to dismiss and grant plaintiff’s motion for preliminary injunction.
