January 20, 2023

On January 19, Willkie filed a pro bono amicus brief on behalf of 19 internet law scholars in Gonzalez v. Google, a case currently pending before the United States Supreme Court that could result in a fundamental change to how platforms can recommend or curate content.

This case is the Supreme Court’s first opportunity to interpret Section 230 of the Communications Decency Act of 1996, which protects technology firms from liability for content published by third parties on their platforms, and allows those same firms to curate or bar certain content. The amicus brief argues that Section 230’s immunity extends to an internet platform’s automated recommendations. As the brief argues, “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.”

The brief also argues that the petitioners’ (and the government’s) arguments fall apart when they try to distinguish between an automated recommendation and the content being recommended—insisting that even if Section 230 rules out liability based on the recommended third-party content, a service provider could still be liable for the automated recommendation itself. Willkie’s brief demonstrates that, to the contrary, Section 230’s text contemplates that service providers will engage in “pick[ing]” or “choos[ing]” third-party content, and protects them from liability for those activities.

The case is set for argument on February 21, 2023.

The Willkie team was comprised of partners Michael Gottlieb and Jonathan Patchen, and associates Aaron Nathan, Brandon Franklin and Harris Mateen.