Keker argues for creators to keep Section 230 of communications act

On behalf of a coalition of internet content creators, Keker, Van Nest & Peters LLP urged the U.S. Supreme Court to shield them from liability for content shared or recommended on their platforms by keeping Section 230 of the Electronic Communications Privacy Act in place.

The brief argued that tampering with Section 230 could hamper free speech on the internet and inhibit the creators from growing their audiences.

The brief backs Google in a case from the 9th U.S. Circuit Court of Appeals concerning whether the tech giant is entitled to the protections afforded by the statute with regard to liability for third-party recommended content that appears on social media platforms.

Plaintiffs in that case are family members of people killed in ISIS attacks throughout the world who want tech companies to be held liable for ISIS-related content that social media algorithms had recommended, including recruitment materials created by the terrorist group.

Last October, the U.S. Supreme Court granted review of the case after the 9th Circuit dismissed the family members’ claims. Gonzalez et al. v. Google LLC, 21-1333 (S. Ct., filed April 4, 2022).

“We were very pleased to file an amicus brief on behalf of Authors Alliance and a diverse group of internet content creators urging the U.S. Supreme Court to preserve Section 230’s broad protections,” Keker partner Benjamin W. Berkowitz, who represents the content creators, said in a phone interview on Friday.

He was joined in preparing the brief by fellow partner Matan Shacham, of counsel Steven A. Hirsch and associate Julia L. Greenberg of the firm’s San Francisco office.

“Altering Section 230’s intermediary-liability protections for recommendations could have significant consequences for current and future creators and for free expression online,” the brief read. “Major platforms might be less likely to host and promote independent creators’ content. New and emerging creators may be unlikely to reach new audiences. And speech generally could be chilled online, hindering Congress’ policy goals of fostering a free and open Internet.”

Over the course of the case, detractors of a broad reading of Section 230 have contended that preserving its coverage of recommended content would make it more difficult to hold social media platforms accountable for harmful actions stemming from such content.

“Companies like Google are not just publishing material from users, they are exploiting it to make a profit,” California Attorney General Rob Bonta said of the case in December. “I urge the Supreme Court to adopt a more reasonable view of ‘publisher immunity’ under the Communications Decency Act that is in line with Congress’ intent.”

However, Berkowitz said preserving the Section 230 protections would bring the policy in line with the statute’s initial intent.

“If you read Section 230 and look at the history of the statute, it’s clear that Section 230 was intended to have broad protections for platforms that host user content, and those protections extend to recommended content,” he said. “So for the Supreme Court to hold otherwise would deviate from essentially every other court that’s interpreted the statute.”

“Obviously it’s concerning that the Supreme Court decided to take this case up in the first instance, but what I would hope is that in reading the very powerful amici briefs that have been filed in support of preserving Section 230’s broad interpretation that the Supreme Court is going to agree that that broad interpretation is correct under the law and is a matter of upholding the policies that Congress intended when it enacted Section 230,” Berkowitz continued.