Association of American Physicians and Surgeons and Kathleen Verelli, individually and on behalf of others similarly situated v. Adam Schiff, individually and as a member of Congress, No. 21-5080 (D.C. Cir.) (January 25, 2022).


 

The United States Court of Appeals for the District of Columbia Circuit has affirmed dismissal of an action brought by a physicians’ association that provides information about vaccination online.  In its complaint, the association asserted that online platforms caused their site to lose preference in search results, as well as a beneficial comercial association, and that this was the result of agreement between the technology platforms and Representative Adam Schiff. 

In addition to allegedly disfavoring the physicians’ association, the association stated that government statements came to be incorporated in information offered online about vaccines.  Dispositive motions and the appeal did not establish whether the companies and the government worked together to present responses to the government’s inquiries or to fashion information presented on government websites.

The appellate court concluded that the physicians’ association lacked standing, a form of capacity, to bring suit, as the association cannot demonstrate a concrete injury traceable to the actions of the defendant which is redressable by a court.

The appellate court was dismissive of the physicians’ position that because its action is grounded in First Amendment concerns, the ordinarily stringent requirements of standing are not apt, as First Amendment injuries are presumptively damaging.  Deferential review of First Amendment claims applies to overbreadth challenges to statutes, not the willful acts of a government official to limit speech, as is alleged here.

The court observed that inquiries presented by the Congressman to the technology companies and their responses disclosing their policies does not provide any traceable source of harm to the petitioners.  Moreover, the technology companies stated that their policies and actions predated the government’s inquiries about their practices, further attenuating any inference that the two worked together to cause the physicians’ website to become disfavored.

Because the appellate court affirmed dismissal on jurisdictional grounds, the court found it unnecessary to consider either the legislative immunity enjoyed by members of congress or the statutory immunity enjoyed by technology providers under Section 230 of the Communications Decency Act of 1996.  

JustLawful note:  At the heart of the physicians’ associations’ case is the specter of the government outsourcing speech suppression, which is forbidden to the government by the First Amendment. Significant issues in maintaining open channels for speech could emerge were the government to encourage speech regulation by private entities not bound by the First Amendment as agents or proxies for the government, an undesirable situation made worse as the technology companies enjoy statutory immunity for as long as they are not providing content.  

Not long ago such an idea would be seen as the stuff of dystopian fiction.  However, cause for concern has become deeper and is now more frequently perceived to be grounded in reality.  Technology companies grow ever more active in removing materials from their sites, or in banning  participation on their sites, and enjoy immunity for doing so for so long as they are able to maintain that they are administering terms of service agreements rather than providing content.  

Providing content, which is not immune from suit, and providing site access, which is immune from suit, is a legacy of early days in internet development when courts were inclined to encourage the widespread adoption of online platforms. As a corollary, courts were inclined to discourage corporations from refusing to expand services for fear of defamation actions.  It was thought that Section 230 would take care of that, and by and large it has done so, but Section 230 immunity seems, to some, to grow ever more expansive as opportunities to be present online seem to grow ever less reachable or maintainable. 

The potential for government involvement in matters that impact opportunities to speak, whether directly with the entities, or indirectly through political financing, merits review and will likely invite additional challenges.  

 

Association of Physicians and Surgeons v. Schiff, No. 21-5080 (D.C. Cir) January 25, 2022

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