Supreme Court Vacates Stay of Injunction Precluding Effectiveness of Texas’ Law Addressing Perceived Social Media Censorship

Net Choice, et al. v. Paxton, Attorney General of Texas, No. 21A720, 596 U.S. ____. Order granting emergency petition entered May 31, 2022.



Texas legislation prohibiting content-based deplatforming or deprioritizing of social media posts remains subject to an injunction precluding its effect pending determination of the merits of challenges of the constitutionality of the statute. The Supreme Court has vacated the Fifth Circuit’s stay of a district court injunction precluding the effect of the law. 

Justice Alito has dissented from the grant of the petition, stressing that the questions presented by the case invite the Court’s review, particularly as those questions do not fit squarely within First Amendment precedent.  Neither public event, publication, public marketplace, or common carrier provisions anticipate the advent of and market power of social media platforms.  

The dissenting justice notes that the state perceives impossible incongruity between the social media platforms’ position that they may enjoy immunities under Section 230 of the Communications Decency Act of 1996 for publication of others’ content while at the same time enjoying First Amendment protection for refusing to publish that content.

Justice Alito observes that the likelihood of success on the merits must be demonstrated as to all aspects of the injunctive relief provided, but this is not the case with respect to the disclosure requirements of the Texas law concerning social media platforms’ publication standards, which are to be reviewed under less stringent standards for constitutional review of commercial speech.

Of importance is that the Texas law applies only prospectively, a circumstance which, in a certain light, renders injunctive relief pending review somewhat superfluous, as no action against any social media company has yet occurred and any action remains open to constitutional challenge if and when it occurs. 

The novelty of the questions presented, while inviting exploration, does not justify federal interference in state sovereignty, which is the result where, as here, the Supreme Court serves as a source of preclearance authority.

Justice Alito’s dissent has been joined by Justices Thomas and Gorsuch.  Justice Kagan would deny the emergency petition, but has neither joined the dissent nor written her own opinion.

Netchoice, LLC v. Paxton, 21A720, 596 U.S. ____ , May 31, 2022

The Eleventh Circuit Opines that Much of Florida’s New Regulation of Social Media May Violate the First Amendment, in Contrast to Recent Orders of the Fifth Circuit to the Contrary Now Awaiting Emergency Review in the Supreme Court


NetChoice, LLC and Computer & Communications Industry Association, d/b/a CCIA v. Attorney General of the State of Florida, et al., No. 21-12355 (11th Cir.) Order and Opinion issued May 23, 2022, affirming in part and vacating in part an injunction issued by the United States District Court for the Northern District of Florida.


Several states, including Florida and Texas, have enacted legislation aimed at compelling social media to be open to all, without banning, de-prioritizing, or de-platforming entities or posts because they present disfavored views. Texas’s law applies to the general practices of large social media sites, while Florida has addressed access by political candidates and journalists.

When the U.S. Court of Appeals for the Fifth Circuit refused to enjoin the effectiveness of Texas’s statute, NetChoice and CCIA presented an emergency petition to the U.S. Supreme Court on May 13, 2022. Just as briefing closed on the emergency petition, the Eleventh Circuit issued its opinion, which has been added to the record of the emergency petition as supplemental authority.

Unlike the Fifth Circuit, holding its legal cards close to the vest, so to speak, and issuing a non-unanimous order without opinion, the Eleventh Circuit has published a 67 page opinion examining whether it is likely that NetChoice and CCIA will succeed in demonstrating that Florida’s law is unconstitutional. Concluding that it is likely that the law will be shown to be unconstitutional, and observing that ongoing infringements of First Amendment rights are presumed to cause irreparable harm, and noting that neither the state nor the public has any interest in enforcing unconstitutional law, the Eleventh Circuit has upheld most, but not all, of the injunctive relief granted by the Northern District of Florida.

Principles Endure. The Eleventh Circuit opened its opinion by noting that new principles are not necessarily needed when new technologies emerge. The First Amendment continues to prohibit government interference in speech while protecting the speech of private actors.

‘Not Really Private’ Private Entities. Florida asserts that social media platforms are not truly private entities and has enacted legislation prohibiting de-platforming political candidates, de-prioritizing messages about political candidates, or removing content provided by an “journalistic enterprises” because of its content.

The Eleventh Circuit Disagrees. The appellate court has found that social media entities are private actors that enjoy First Amendment protections. Editorial judgement about content are protected. That protection would be unconstitutionally burdened by Florida’s legislation, not only in its editorial and content-based directives but also in its demands for disclosure of a rationale supporting any and all content moderation decisions. These observations support enjoining aspects of the Florida law.

How It Works. The Eleventh Circuit has offered a ‘primer’ about what social media platforms are” collectors of others’ speech, broadly defined to include text, photography, and video “posts” published to others. Platforms may have billions of users or exist as smaller sites for specialized interests. Several social media platforms are household names: Facebook, Twitter, and YouTube.

Private Enterprises, Private Choices. No one is obliged to avail themselves of the content social media entities provide. The government cannot restrict citizens’ access to social media platforms but that right of access attaching to citizens does not include a right to compel the platforms to accept or consume any content.

Whose Speech Is It? Much, if not most, speech on social media platforms is not created by the platforms themselves, but some speech belongs to the platforms, as is the case with publishing terms of service or community standards defining what is permitted, or creating addenda or warning, or publish a platform’s own content.

Neither Conduits nor Storage Devices, but Curators. Social media enterprises are best seen as curators and arrangers of content according to users’ wishes, while at the same time removing content that violates the terms of service or community standards.

These activities make the platforms active intermediaries who have created virtual spaces where participants can be both speakers and listeners.

The Eleventh Circuit views content moderation as curation that promotes the creation and development of niches and communities, and promotes values and points of view.

Why Florida Sought Legislative Intervention. Florida’s social media legislation was intended to address perceived silencing of conservative views by technology ‘oligarchs’.

Florida perceives social media platforms to be akin to public utilities which, as common carriers, are to remain accessible to all and to viewpoints.

Sweeping and Problematic. The Eleventh Circuit notes that Florida’s law, while aimed at “big tech oligarchs,” as defined by size and revenue, does sweep in smaller sites, such as Wikipedia and Etsy. An initial specific exclusion of Disney Corporation was repealed.

Three features of the Florida legislation are problematic, in the appellate court’s view: content moderation, disclosure obligations, and user data retention.

Strict in Theory, Fatal in Fact. The Eleventh Circuit perceives that Florida’s legislation regulates speech within the meaning of the First Amendment, and its content moderation provisions are subject to strict scrutiny, making it unlikely the legislation will survive.

Pre-Emption Awaits Another Day. As the court based its analysis on the First Amendment, it is not necessary to consider the issue of federal preemption of the Florida law by 47 U.S.C. Section 230.

Gutting Editorial Discretion. Denying social media platforms the ability to prohibit some posts, as the Florida law does, impairs the very exercise of discretion that the First Amendment prohibits, the Eleventh Circuit observes.

Not an Indiscriminate Host. The notion that by opening a social media space to some — essentially serving as a host to speakers — a social media enterprise must open that speech to all, following historic decisions, failed to persuade the Eleventh Circuit with respect to the Florida legislation.

Social Media’s Own Speech. If the issue of mandating open doors and open access were not enough to impair the social media companies’ editorial discretion, and by extension, their First Amendment rights, the Florida law, in the court’s view, impedes the platforms’ capacity to exercise their own speech rights.

Common Carrier Analogy Fails. Seeking to minimize the impact of First Amendment review, the state has relied heavily on the notion that social media platforms are common carriers indefensible to society, an idea rejected by the Eleventh Circuit notwithstanding that the court was uncertain whether the state asserts that the common carrier status has already been attained or whether the state would legislate that status into existence.

Social media platforms do not behave as common carriers available to all to transmit communications of their own choosing, the Eleventh Circuit observes. Social media platforms may appear to be open to all but in fact users must accept the platforms’ terms and community standards. Moreover, Supreme Court opinions have not considered cable operators to be common carriers, and the Court has declined to place online media on the same footing as broadcast media for supervisory and regulatory purposes.

The Eleventh Circuit sees that online platforms as analogous to cable providers that retain editorial discretion over their offerings.

Finally, Congress has specifically distinguished and exempted internet services form other communications media in the Telecommunications Act of 1996 and within the same legislation has protected social media from liability for publication in ways not extended to common carriers that must serve all, the Eleventh Circuit reasoned.

What Part of “Constitutional Guarantees” Did Florida Not Understand? If the social media platforms are not already common carriers, which the appellate court finds they are not, the state possesses no power to legislate the platforms’ First Amendment rights out of existence by nomenclature. Even if the social media platforms’ vast market powers suggest that they ought to be treated as common carriers, this would not carry the day. Legislation cannot create in social media the fundamental characteristics inherent in and required of common carriers to hold themselves out to the entirely of the public, without exception. While some entitles may come to be a means of rendering services of public interest, marketplace success in itself will not compel forfeiture of First Amendment rights.

The exercise of expressive editorial judgment by the social media platforms means that those platforms are not common carriers. Any imposition of limits on their First Amendment rights must survive strict scrutiny, which, with some exceptions, is not the case with Florida’s law.

The Nature of the Violations. Florida’s law would restrict editorial judgment through forbidding de-platforming political candidates, manipulating the presentation of content by or about candidates, and censoring or manipulating journalistic enterprises. Legislatively requiring consistency in decision- making and imposing time limits on restrictions present similar, if less obvious, impositions on social media platforms.

Permitting users to opt out of the platforms’ curation would interfere with the editorial processes and discretion exercise by the platforms to those users.

Compelled disclosures of platform activities inherently burden editorial judgment, but such commercial disclosures are subject to lesser scrutiny.

The Eleventh Circuit finds no First Amendment issues arise with respect to requiring platforms to permit users to access their stored records for at least sixty days after de-platforming.

Gimlet Eye or Casual Glance: Standards of Review. Content based speech regulations must survive strict scrutiny. While the state has admitted that the aim of its legislation is to address perceived mistreatment of conservatives and conservative views, this does not persuade the Eleventh Circuit to adopt the technology associations’ argument that this causes the entirety of the legislation to fail.

The state’s motivation in enacting legislation is not outcome determinative in review of an otherwise facially constitutional law. Moreover, the applicability of the law to some social media platforms and not others, while of concern, is insufficient to condemn the legislation in its entirety.

The Eleventh Circuit’s Reasoning. The appellate panel has concluded that NetChoice and CCIA may succeed on the merits of their content moderation claims. As some provisions refer specifically to content messaging, those trigger strict scrutiny, whereas de-platforming and opt-outs are neutral.

The “consistency” demanded of the social media platforms partakes both of content-based and neutral regulation. Because at their core they involve expressive activity, intermediary scrutiny is triggered, but even at that level, they are not likely to survive.

Disclosure of factual information in commercial settings need not meet even intermediate scrutiny, and may be reviewed on a rational relationship basis, making those regulations likely to survive.

The Eleventh Circuit has concluded that none of the content moderation measures would survive intermediate scrutiny and that the ‘explanatory’ disclosure requirements — why decisions were made — is likely unconstitutional. However,there is no likelihood of success on the merits of the rest of the legislation.

When intermediate scrutiny is applied to the legislation’s content moderation restrictions, the court is asked to consider whether the content moderation restrictions are narrowly drawn, that is, no greater than is essential, to further a substantial government interest unrelated to speech suppression.

The content moderation restrictions do not, in the court’s view, further any substantial government interest, which does not seem to have been seriously argued by the state. (Slip op. at 53.)

While it might be that the state, had they pursued such arguments, would claim an interest in curtailing private censorship, or in fostering use of of the internet, the government has no interest in “leveling the expressive playing field,” nor may it intervene where there is no right to a social media account.

The idea of restricting the speech of some to enlarge the voices of others is “wholly foreign to the First Amendment,” the Eleventh Circuit has concluded. (Slip op. at 59, quoting Buckley v. Valeo, 424, U.S. 1, 48-49 (1976)).

The assertion of a state interest in “promoting the widespread dissemination of information from a multiplicity of sources” would fail, as social media platforms do not act as gatekeepers, exercising control over most or all information. (Slip. Op. at 49, quoting Turning Broadcasting System v. FCC, 512 U.S. 622, 662 (1994).) A wealth of communications resources exist and are available to speakers Even if they are not of the magnitude of the social media platforms, this does not justify inhibiting the speech rights of private social media companies as the Florida law would do.

Moreover, the appellate court thinks it unlikely that the government has an interest in private utilities’ consistent application of rules or in prohibiting users from changing messages within certain time frames, in addressing sequencing of content, or in permitting or precluding participation in these processes.

Even if a substantial government interest were found, there is little likelihood that the preclusive restrictions and mandated activities are “no greater than is essential to the furtherance of interests.” (Slip op. at 61, citing United States v. O’Brien, 391 U.S. 367, 377 (1968).

Prohibitions on “deplatforming, deprioritizing, or shadow-banning” would make it impossible to address obscenities or terrorist threats, and indeed raises the specter of minors’ access to pornography. (Slip op. at 62). This wide a sweep stands the narrowness constraints applicable to legislation of speech regulations on its head, the court concludes.

Compelled disclosures. Disclosure requirements will survive constitutional scrutiny if as commercial speech they are related to protection of consumers, which is a recognized state interest, and are not unjustified or unduly burdensome, effectively chilling protected speech. (Slip op. at 63, citing Milavetz, Gallop & Milavetz v. United States, 559 U.S. 229, 250 (2010).

An exception to the likely unconstitutional disclosure requirements is requiring that information be provided to consumers about the terms of access to the platform and that the content moderation policies are not misleading. The court observed that there has not been a sufficient showing that publications of standards or that providing information about rules changes, views, and advertising information would be unduly burdensome.

The court has agreed with NetChoice that requiring detailed justification for and notice of each content moderation is likely unconstitutional even under commercial speech standards. The time constraints, compliance burdens, and prohibitive fines for insufficient “thoroughness” compound those burdens.

And in Conclusion. The remaining factors requiring review to substantiate injunctive relief are easily met, the Eleventh Circuit has determined. Ongoing First Amendment violations are presumptively irreparably harmful, and neither the state nor the public has any interest in enforcing an unconstitutional statute.

The district court’s order will be upheld in part and vacated in part, and the case remanded.

WHERE MATTERS STAND. JustLawful is not sage enough to know what the Supreme Court will do now that there is an apparent, if only partially articulated, conflict between two federal circuit courts of appeal. Others’ prognostications are welcomed.

In a Nutshell. Here is a link to the Eleventh Circuit’s synopsis of its parsing of the Florida statute.

Summary 11th Cir. Opinion

And in Full:

Here is the entire opinion.

NetChoice v. Florida No. 21-12355 (11th Cir.) Opinion May 23, 2022

 

Social Media Platforms Resist Regulation as Electronic Public Squares, Seeking U.S. Supreme Court Intervention in Ongoing Federal Appellate Litigation Against Texas

Netchoice, LLC and Computer and Communications Industry Association v. Ken Paxton, Attorney General of Texas, No. 21A720 (U.S. Supreme Court). Emergency Application filed May 13, 2022


When the state of Texas passed legislation that would limit the ability of internet social media sites such as Facebook, Twitter, YouTube and others to remove or to ban content the sites deemed undesirable or outside the private companies’ internal rules and user agreements, those companies immediately sought to enjoin the legislation, arguing that Texas’s bill violates the corporations First Amendment rights, including but not limited to exercising editorial discretion over content provided by others. 

The associations advocating for the social media sites successfully obtained an injunction halting the operation of the Texas law.  Recently the United States Court of Appeals, without issuing an opinion detailing its reasoning, stayed the operation of the injunction, prompting the associations to seek the United States’ Supreme Court’s intervention to vacate the appellate court’s order.

Texas, by its Attorney General, observes that the massive online presences of social media sites has caused them to become modern public squares and, as such, when a site its open to some views, it must be open to all.  Alternatively, Texas asserts that the platforms’ conduct may be regulated much as the conduct of common carries is, and that it is not speech but the act of removal of content or banning of posts or accounts that is open to statutory intervention without concern for the First Amendment. 

Social media sites strenuously resist being required to offer appeals from removal of content or banning of accounts, and complain that that reporting requirements imposed by Texas are overwhelming.  The companies state that compliance with Texas’s regime would be prohibitively costly and would require remaking of the corporations business methods, actions which would take a decade to accomplish.

The sites are extremely concerned because active operation of the Texas legislation will impact all operations throughout the United States. 

The petitioning associations enjoy the support of more than a dozen industry-related entities, First Amendment advocates, and others with interest in online activity.

Texas, by comparison, is supported by other states and a few critical voices.

The timing of issuance of a decision on the emergency petition, addressed to Justice Alito as justice for the Fifth Circuit, but in light of the stringent briefing deadline imposed on the parties, it may be that a decision will be forthcoming very soon.

The legislation in issue:

Text of Texas H.B. 20

The emergency petition, Texas’s opposition, and petitioners’ reply:

21A720 Supreme Court Vacatur Application

21A720 Response to Application

21A720 Reply in Support of Emergency Application

Amicus Submissions for Applicants:

21A720 Amicus Brief of Christopher Cox

21A270 Amicus Brief of Reporters Committee for Freedom of the Press, et al.

21A720 Amicus Brief of Professor Eric Goldman

21A720 Amicus Brief of Floor64 d/b/a/Copia Institute

21A720 Amicus Brief of Center for Democracy and Technology, et al.

21A720 Amicus Brief of TechFreedom

21A720 Amicus Brief of Chamber of Progress, et al.

21A720 Amicus Brief of The Cato Institute

Amicus Submissions for Respondent:

21A720 Amicus Brief of Philip Hamburger, et al.

21A720 Amicus Brief of Florida and 11 Other States

 

 

 

 

 

 

 

 

Federal Officials Cannot Evade First Amendment Constraints on Speech Suppression Through Intimidation and Collusion with Internet Platforms, or Creation of an Unauthorized Disinformation Governance Board, State Attorney Generals Assert in Suit Against an Array of Federal Officials


Missouri and Louisiana v. Biden, et al.., No. 3:22-cv-01213-TAD-KDM (W.D. La.).  Complaint filed May 5, 2022.

Missouri and Louisiana v. Biden, et al., No. 3 22-cv- 01213 (W.D. La.) Complaint filed May 5, 2022

Missouri and Louisiana Attorney Generals, claiming injury to state constitutional interests and to state citizens’ speech freedoms, have filed a complaint against President Biden and multiple executive officials and federal agency heads, asserting that the Biden administration has colluded with technology platforms such as Facebook, YouTube, and Twitter in order to suppress and censor information unfavorable to federal government aims.  The recent creation of a bureaucratic governing board to manage removal of disfavored speech only advances these unconstitutional practices, the state plaintiffs say.

Plaintiffs seek declaratory relief declaring the administration’s actions violate the First Amendment as well as injunctive relief forbidding further unconstitutional activity.

The First Amendment serves as the cornerstone of the free exchange of ideas of information, without which competent self governance is impossible, the states say.  The federal government is constrained by the First Amendment from interfering with the guaranteed freedoms embodied in the First Amendment, including speech freedoms.  The government cannot escape its obligation to refrain from inhibiting speech by engaging private entities to censor speech.

Although the First Amendment does not ordinarily reach private actors, acts undertaken at the behest of or in collusion with the government may violate the First Amendment.  This is particularly so, the plaintiffs state, where the federal government has coerced private entities to cooperate with the government by means of threats of antitrust proceedings or revocation of immunities enjoyed under Section 230 of the Communications Decency Act of 1996.

Truncating the flow of information to suit federal officials’ aims impairs states in protecting the interests of state citizens, particularly where state constitutions may secure more expansive speech protections that the United States Constitution, plaintiffs claim.

The Complaint filed on May 5 in the United States District Court for the Western District of Louisiana details instances in which, either directly or in collusion with technology platforms, federal officials have acted to suppress speech, serving their own political ends to the injury and detriment of the public, frequently cloaking their actions as attempts to guard against undefined and opaque “disinformation.”

Threats of antitrust actions or threats of loss of immunities have ensured technology companies’ compliance with federal officials’ dictates.   The adoption of facially private governing documents and policies that in fact are employed to serve the government, and which may operate in collusion with the government, cannot be interposed to shield either private or public actors from liability for suppressing and chilling speech.

An atmosphere of intimidation pervades social media sites, plaintiffs observe. Undertaken in fear of or in collusion with federal officials, the private companies’ practices of banning, shadow banning, limiting publication, and outright removal of social media account holders create unconstitutional prior restraints, chilling participation lest a similar fate ensue.

The state plaintiffs’ Complaint provides a chronicle of activity asserted to constitute First Amendment violations. If true, the plaintiffs’ allegations paint a picture of a government intent on serving its ends and not those of the public they were elected or appointed to serve.  Digital media fail to behave as an ‘electronic public square’ where those media represent an unparalleled “concentrated control” of speech.  Complaint, para. 53, citing Knight First Amendment Institute, 141 S. Ct. 1220, 1221 (2021).

Federal officials have conferred with private digital platforms to advise the platforms about content that ought to be flagged for removal, plaintiffs state.

Online platforms accomplish speech monitoring by means such as mechanical algorithms or outright speech suppression by permanent banishment of disfavored speakers, the plaintiffs offer, thereby denying the exiled any ability to communicate publicly.  Such measures not infrequently censor core political speech, to the detriment of political opponents and to the benefit of those directing the private companies’ actions.

Examples of digital platforms’ interference with First Amendment speech guarantees, undertaken to please or to appease federal officials have included suppression of information about location of the President’s son’s laptop, said to contain damaging information, on the eve of the Presidential election.

Plaintiffs aver that open discussion of the origins of the Covid-19 virus was precluded where, by agreement with a social media platform, a federal official who had been engaged in funding gain of function research abroad provided messaging favoring a government narrative which insulated the government and the official from review.

Relevant evidence that would permit public evaluation of the efficacy of face masks and government edicts demanding home confinement was also suppressed, plaintiffs submit.

The promotion of narratives favoring voting by mail, a methodology traditionally dismissed as inviting voter fraud, has also been alleged to involve social media.

Both the Executive and the Legislative branches have threatened technology companies directly and publicly, at times demanding removal of political opponents’ statements.

The recent creation of a board to govern “disinformation” is an Orwellian measure intended to withhold content from the public and to insulate the federal government from criticism, plaintiffs insist.   This has been done notwithstanding that there exists a constitutional guarantee of free speech, such guarantee not to be interfered with by curating and removing from public discourse that which disfavors the government.

Similarly dystopian, plaintiffs observe, is the view that speech is not speech but infrastructure, and thus susceptible of government regulation and oversight.  To this has been added the opinion that the public reacts emotionally and thoughtlessly to speech, and that speech is linked to violence, requiring online policing to protect the public.  One legislator has suggested that the public lacks the capacity to discern fact from fiction, a circumstance not to be addressed by providing more information, but instead, in the view of current federal officials, less information or none at all.

These activities, whether singularly or in combination, violate the First Amendment and severely damage public discourse, the plaintiffs say, causing sufficient danger to open discourse as to merit an injunction against further constitutional violations.

Disfavored, de-prioritized, and dismissed:  physicians’ association cannot sue congressman for working with media platforms on ‘misinformation’


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

Public Figures, Private Law: Facebook Oversight Board Upholds Initial Removal of President’s Statements and Presence but Condemns Facebook’s Failure to Articulate Standards or Time Limits


Case No. 2021 -001 – FB – FBR.  Facebook Oversight Board, May 5, 2021.


Facebook is an online social media platform that welcomes all except those determined to have acted badly according to its internal standards, which are described generally in its Terms of Service, with which users promise compliance.   For the errant poster, Facebook may administer rebukes, suspend or terminate service, as well as removing content it deems unsuitable. 

Facebook thus administers and enforces rules of its own making by its own employees.  In light of persistent concerns about this insularity, Facebook founder Mark Zuckerberg created a board of review, funded by Facebook but administered independently.  

This week the Facebook Oversight Board issued an opinion unsigned by its constellation of prominent international figures that concluded that Facebook did not err in removing statements of then-President Donald J. Trump at the time of and concerning violence that erupted on January 6, 2021 in the nation’s Capitol following a rally of Trump supporters.  

While correct in the immediacy of its removal and ban in light of the circumstances at the time, in which the then-President’s words were perceived to have incited insurrection, the Facebook Oversight Board condemned Facebook’s failure to articulate the reasons and applicable standards supporting the removal and ban and the apparent eternal silencing of Facebook account holder Trump.  

The Facebook Oversight Board sent the case back to Facebook for further proceedings. 

The decision is no small matter and some have deemed it a landmark of equal stature with Marbury v. Madison, 5 U.S. 137 (1803), the first enunciation by the United States Supreme Court of its reason for being and its power of judicial review.  

This proceeding can be seen as a foundational attempt to provide some structure for review of platform provider’s decisions.  

This matters greatly (“bigly”, some might say) because internet service providers are almost entirely immune from suit for questionable decisions and at the same time the government of the United States cannot intervene to regulate online speech as it is constrained by the First Amendment to the Constitution of the United States.  

Section 230:  the good, the bad, and the sometimes ugly. When widespread public adoption of the internet was in its infancy, Congress sought to inhibit unprotected speech while protecting internet service providers from liability for statements not of their own creation posted on platforms.  Section 230 of the Communications Decency Act of 1996 preempts federal law and precludes suit against any platform provider who does not create content.  The platform is free to remove or to otherwise police its product without losing those immunities.  

This would leave a user without recourse unless the platform’s actions could be challenged in court in contract, which in limited measure can be done, or through internal review with the platform provider, as is the case in this week’s opinion.

The creation of an international body not necessarily bound by the laws of any one nation cannot be other than a major inflection point in modern law.  Prominent First Amendment authorities question whose law should govern such cases.  

It is far too soon to tell whether this new thing is a good thing, and much is lost in cheers and jeers attaching to personalities, whether that of the former President or of the founder and CEO of Facebook.  What is to the Facebook Oversight Board’s credit is that the reviewing body articulated not only the facts determined but also the standards embraced.  The virtue of its reliance on standards drawn from international human rights declarations, which remain aspirational domestically if not adopted by the United States, awaits further reflection.  

Links to the decision and to other materials are posted below. 

The Facebook Oversight Board opinion:  

2021 001 FB FBR Oversight Board Opinion

The Facebook Oversight Board announcement and overview of its opinion:

Oversight Board Upholds Trump Suspension While Finding Facebook Failed to Apply Proper Penalty

The composition of the Oversight Board:

Facebook Oversight Board

A primer on the creation of the Oversight Board and a reflection on this week’s opinion:

Lawfareblog: About the Facebook Oversight Board

Lawfareblog: It’s Not Over: Oversight Board Trump Decision is Just the Start

Reflections on jurisprudential questions prompted by the Facebook Oversight Board determination:

Volokh Conspiracy: Whose Rules Should Govern How Americans Speak with Other Americans Online

Responses to announcement of the decision and opinion in the mainstream media:

Facebook Oversight Board Tells Zuckerberg He’s the Decider on Trump – The New York Times

Trump Is Still Banned on YouTube. Now the Clock Is Ticking. – WSJ

Facebook Oversight Board’s Trump Decision was Marbury v Madison Moment – CNBC

Two recent cases discussing Section 230 of the Communications Decency Act of 1996:

Daniels v Alphabet Inc ND Cal 2021

Murphy v Twitter Inc Cal App 2021

Discussions of United States’ positions on international human rights conventions:

Where the United States Stands on 10 International Human Rights Treaties – The Leadership Conference Education Fund

Human Rights and the United States

Public commentary on the controversy submitted to the Facebook Oversight Board:

Facebook Oversight Board Public Comments