The Internet Association Files Amicus Brief in Facebook Section 230 Appeal

Late last week, the Internet Association (IA) backed Facebook Inc., arguing that a precedential decision by a divided Third Circuit panel interpreting Section 230 of the Communications Decency Act warrants en banc reconsideration. The challenged ruling was made in September, when the panel held that a Philadelphia news show host’s right-to-publicity claim fell within the subsection 230(e)(2) exception, and permitted the lawsuit against Facebook, Reddit, and Imgur to proceed.

IA explains that it advocates for the interests of the nation’s top internet companies and their users, and seeks to protect internet freedom, foster innovation and economic growth, and empower individuals. The amicus contends that the holding “risks dramatically altering Section 230’s careful balance by potentially carving out a significant exception to that broad immunity for any kind of state-law claim that arguably sounds in intellectual property.”

IA’s argument is threefold. The association first contends that the panel’s holding that subsection 230(e)(2) applies to state intellectual property law splits with long-standing Ninth Circuit precedent, which holds that the exception applies only to claims brought under federal intellectual property law. In so finding, the Ninth Circuit correctly construed Congress’s aim to “‘insulat[e] the development of the Internet from the various state law regimes,’” IA explains. 

Second, the ruling needs to be revisited because as is, it reportedly creates confusion about whether state laws that might be categorized as governing intellectual property fall within the exception. “If the scope of Section 230 were linked to this patchwork, the immunity of a  defendant that operates throughout the country—as online providers invariably do—would turn on and off  depending on the state in which a claim is brought,” the motion says. Further, IA cautions that a state could erode Section 230 immunity merely by purporting to reclassify a tort to sound more like “intellectual property.” 

Finally, IA asserts that the holding threatens to limit Section 230’s protections by “potentially carving out exceptions for every claim that can arguably be categorized under state intellectual property law.” This would incentivize forum shopping and artful pleading to recast claims over allegedly defamatory content as “right-of-publicity” claims, IA says.

Other amici including Center for Democracy and Technology, Copia Institute, and Electronic Frontier Foundation filed a brief in support of the social media giant the same day. IA is represented by Wilmer Cutler Pickering Hale and Dorr.