UPDATE: On October 23, 2024, the Third Circuit denied TikTok's petition for rehearing en banc.

EFF legal intern Nick Delehanty was the principal author of this post.

EFF filed an amicus brief in the U.S. Court of Appeals for the Third Circuit in support of TikTok’s request that the full court reconsider the case Anderson v. TikTok after a three-judge panel ruled that Section 230 immunity doesn’t apply to TikTok’s recommendations of users’ videos. We argued that the panel was incorrect on the law, and this case has wide-ranging implications for the internet as we know it today. EFF was joined on the brief with Center for Democracy & Technology (CDT), Foundation for Individual Rights and Expression (FIRE), Public Knowledge, Reason Foundation, and Wikimedia Foundation.

At issue is the panel’s misapplication of First Amendment precedent. The First Amendment protects the editorial decisions of publishers about whether and how to display content, such as the videos TikTok displays to users through its recommendation algorithm.

Additionally, because common law allows publishers to be liable for other people’s content that they publish (for example, letters to the editor that are defamatory in print newspapers) due to limited First Amendment protection, Congress passed Section 230 to protect online platforms from liability for harmful user-generated content.

Section 230 has been pivotal for the growth and diversity of the internet—without it, internet intermediaries would potentially be liable for every piece of content posted by users, making them less likely to offer open platforms for third-party speech.

In this case, the Third Circuit panel erroneously held that since TikTok enjoys protection for editorial choices under the First Amendment, TikTok’s recommendations of user videos amount to TikTok’s first-party speech, making it ineligible for Section 230 immunity. In our brief, we argued that First Amendment protection for editorial choices and Section 230 protection are not mutually exclusive.

We also argued that the panel’s ruling does not align with what every other circuit has found: that Section 230 also immunizes the editorial decisions of internet intermediaries. We made four main points in support of this argument:

• First, the panel ignored the text of Section 230 in that editorial choices are included in the commonly understood definition of “publisher” in the statute.
• Second, the panel created a loophole in Section 230 by allowing plaintiffs who were harmed by user-generated content to bypass Section 230 by focusing on an online platform’s editorial decisions about how that content was displayed.
• Third, it’s crucial that Section 230 protects editorial decisions notwithstanding additional First Amendment protection because Section 230 immunity is not only a defense against liability, it’s also a way to end a lawsuit early. Online platforms might ultimately win lawsuits on First Amendment grounds, but the time and expense of protracted litigation would make them less interested in hosting user-generated content. Section 230’s immunity from suit (as well as immunity from liability) advances Congress’ goal of encouraging speech at scale on the internet.
• Fourth, TikTok’s recommendations specifically are part of a publisher’s “traditional editorial functions” because recommendations reflect choices around the display of third-party content and so are protected by Section 230.

We also argued that allowing the panel’s decision to stand would harm not only internet intermediaries, but all internet users. If internet intermediaries were liable for recommending or otherwise deciding how to display third-party content posted to their platforms, they would end useful content curation and engage in heavy-handed censorship to remove anything that might be legally problematic from their platforms. These responses to a weakened Section 230 would greatly limit users’ speech on the internet.

The full Third Circuit should recognize the error of the panel’s decision and reverse to preserve free expression online.