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The fierce debate over online speech has pushed the United States toward a constitutional collision. In one direction lie government mandates, exemplified by the state laws at issue in NetChoice v. Paxton, which raise serious First Amendment concerns by compelling platforms to host speech. In the other lies the status quo, where a few dominant platforms wield enormous editorial power, sparking endless accusations of bias. Caught between these two poles—state coercion and private censorship—is a third path, one that offers a crucial escape valve: empowering users to curate their own online experience through middleware.
This approach of user choice is not just a pragmatic compromise; it is a constitutionally sound solution to the problem of content moderation. Yet, as developers are discovering, platforms are using private Terms of Service to shut down this vital alternative, forcing a fundamental question: can private contracts be allowed to foreclose a solution to a national First Amendment dilemma?
Middleware: A First Amendment-Friendly Path Forward
At its core, middleware is software that lets users customize their digital experience. A good analogy is an ad blocker: it is software that operates between the user and the website or platform they are accessing—in the “middle,” hence the term—to help them filter content according to their preferences. The most well-known recent example is Louis Barclay’s “Unfollow Everything” tool, which allowed Facebook users to reset their News Feed and add content back according to their preferences. More advanced middleware could allow a user to filter out legally protected but unwanted content—like harassment or misinformation—based on their own preferences. The importance of this model, as the Center for Democracy & Technology (CDT) argues, is that it achieves the goals of “user protection” without government censorship. Instead of a state actor dictating what speech is permissible, the individual user is given the power to choose. This sidesteps the First Amendment landmines inherent in laws that attempt to regulate content, making it one of the most viable paths forward in a landscape littered with constitutionally suspect proposals.
The Overlooked Shield: Section 230(c)(2)(B)
The legal foundation for this user-centric model has existed for over two decades. While most attention on Section 230 of the Communications Decency Act focuses on 230(c)(1), which shields platforms, the often-neglected Section 230(c)(2)(B) provides a specific shield for the creators of filtering tools.
The statute immunizes providers from liability for providing users with the “technical means to restrict access to material” that the user finds “otherwise objectionable.” This language is a clear endorsement of a user-choice model. It reflects a congressional vision where the internet ecosystem includes third-party tools that empower individuals to filter out content they would rather avoid. In essence, Congress provided the statutory architecture for a solution that respects both user safety and First Amendment principles.
The Contractural Wall and Statutory Cudgels
Despite this clear statutory protection, platforms have successfully suppressed middleware using their own private law. This is a direct attempt to circumvent congressional intent. When Facebook sent Louis Barclay a cease-and-desist letter citing its Terms of Service (ToS), it was using a private agreement to nullify a public law. The legal shield that Section 230(c)(2)(B) was created to provide is rendered meaningless if platforms can threaten developers with lawsuits for breach of contract. By blocking a First Amendment-friendly solution, platforms intensify the political pressure for the very government regulation they claim to oppose. When contracts are not enough, platforms have also turned to federal statutes. The Computer Fraud and Abuse Act (CFAA) has been a favored tool, but its power has recently been curtailed. The Supreme Court’s decision in Van Buren v. United States and the Ninth Circuit’s ruling in hiQ Labs, Inc. v. LinkedIn Corp. have narrowed the CFAA’s scope, making it clear that a simple ToS violation is not a federal crime.
A Global Shift Toward Interoperability
The American approach, caught between platform power and statutory ambiguity, contrasts sharply with emerging international models. The European Union’s Digital Markets Act (DMA), for example, proactively mandates that designated “gatekeeper” platforms provide interoperability. While driven by competition policy rather than speech concerns, the DMA shares a core principle with Section 230(c)(2)(B): a recognition that a healthy digital ecosystem requires breaking down walled gardens and empowering third-party innovation for the benefit of users.
Conclusion: Upholding a Constitutional Off-Ramp
The legal battle for middleware is about far more than user convenience. It is about whether private contracts can be allowed to override public law. When platforms threaten middleware developers with legal action, they are attempting to nullify the explicit shield Congress granted in Section 230(c)(2)(B). This circumvention of legislative intent not only cements their own market dominance but also pushes society toward a dangerous and binary choice between state control of speech or unchecked platform power. Courts and policymakers should recognize this for what it is: an effort to contract around a federal statute. Protecting middleware is not just a matter of tech policy; it is a matter of constitutional prudence and upholding the rule of law. The path forward is not to regulate speech from the top down, but to ensure that the legal framework Congress already created is not dismantled by private legal threats.
Suggested Citation: Kelly Ellis, Can Platforms’ Terms of Service Silence User Choice? The Legal Stakes for Middleware, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Oct. 26, 2025), https://publications.lawschool.cornell.edu/jlpp/2025/10/26/can-platforms-terms-of-service-silence-user-choice-the-legal-stakes-for-middleware/.
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