https://www2.ca3.uscourts.gov/opinarch/223061p.pdf https://www2.ca3.uscourts.gov/opinarch/223061p.pdf > Section 230 immunizes ICSs only to the extent that they

https://www2.ca3.uscourts.gov/opinarch/223061p.pdf https://www2.ca3.uscourts.gov/opinarch/223061p.pdf > Section 230 immunizes ICSs only to the extent that they are sued for “information provided by another information content provider.”8 47 U.S.C. § 230(c)(1). In other words, ICSs are immunized only if they are sued for someone else’s expressive activity or content (i.e., third-party speech), but they are not immunized if they are sued for their own expressive activity or content (i.e., first-party speech). Anderson asserts that TikTok’s algorithm “amalgamat[es] [] third-party videos,” which results in “an expressive product” that “communicates to users . . . that the curated stream of videos will be interesting to them[.]” ECF No. 50 at 5. > The Supreme Court’s recent discussion about algorithms, albeit in the First Amendment context, supports this view. In Moody v. NetChoice, LLC, the Court considered whether state laws that “restrict the ability of social-media platforms to control whether and how third-party posts are presented to other users” run afoul of the First Amendment. 144 S. Ct. 2383, 2393 (2024). The Court held that a platform’s algorithm that reflects “editorial judgments” about “compiling the third-party speech it wants in the way it wants” is the platform’s own “expressive product” and is therefore protected by the First Amendment. Id. at 2394. Given the Supreme Court’s observations that platforms engage in protected first-party speech under the First Amendment when they curate compilations of others’ content via their expressive algorithms, id. at 2409, it follows that doing so amounts to first-party speech under § 230, too. Footnote: > We reach this conclusion specifically because TikTok’s promotion of a Blackout Challenge video on Nylah’s FYP was not contingent upon any specific user input. Had Nylah viewed a Blackout Challenge video through TikTok’s search function, rather than through her FYP, then TikTok may be viewed more like a repository of third-party content than an affirmative promoter of such content. Given the type of algorithm alleged here, we need not address whether § 230 immunizes any information that may be communicated by the results of a user’s search of a platform’s content. This is excellent.