NetChoice Amicus Brief Supporting Discord in Doe v. Discord

NetChoice, along with TechNet and Chamber of Progress, filed an amicus brief supporting Discord’s appeal in Doe v. Discord. Our brief makes two key points. First, if the trial court’s reading of the Ending Forced Arbitration Act (EFAA) prevails, it leaves communications services with no way to preserve their arbitration agreements except by suppressing speech. Second, as the Supreme Court has recognized, intermediary liability is disfavored — particularly for services like Discord that have no individualized, heightened connection to the underlying parties beyond that of a service provider, in the same way as with their other users. That has been true in both the terrorism and copyright infringement contexts, and it should be the prevailing approach in the arbitration context as well.