Social Media Providers Resist as Unconstitutional New York’s New Law Requiring Monitoring of Online Activity for “Hate Speech”

Volokh, et al. v. LetitiaJames, Attorney General of the State of New York, No. 22-cv-10195 (S.D.N.Y.)

A legal scholar and blogger and two related internet platforms seek to enjoin enforcement of New York’s new law, effective tomorrow, December 3, 2022, that will require them to monitor content appearing on their site for “hate speech.” The plaintiffs must develop and publish a statement about “hate speech” and must not only monitor for “hate speech,” but also provide mechanisms for submission of complaints and must respond to all complaints.

Failure to comply with the state’s plan for eradication of certain disfavored speech will result in per violation per day penalties. In addition to imposing penalties for perceived non-compliance or violations of the law, the Attorney General may issue subpoenas and investigate the social media entities themselves. Plaintiffs argue that the compliance and non-compliance features of the law are unconstitutional burdens, and that the law in its entirely chills constitutionally protected speech.

Plaintiffs submit that the law unconstitutionally burdens protected speech on the basis of viewpoint and unconstitutionally compels speech. Plaintiffs object to the law as overly broad and vague, offending not only the First but also the Fourteenth Amendment of the U.S. Constitution, as established in controlling Supreme Court precedent. Moreover, plaintiffs argue that New York’s new “online hate speech” law is preempted by Section 230 of the Communications Decency Act. New York cannot compel the social media providers to act as publishers where the federal law precludes doing so.

The law appears to have been hastily cobbled together after a mass murder last summer said to have been racially related. While similar measures have languished in the New York legislature, the undeniably horrible losses of life provided a political moment through which New York might seek to impose speech restrictions online. No legislative findings justifying the law’s enactment were made, and many significant terms are undefined. Similarly problematic is that the law requires no intent in order for the state to impose penalties on the online platforms. The perception of one reading or seeing the online content controls whether “hate speech” exists.

At this writing, the state has not responded to the plaintiffs’ requests for injunctive and declaratory relief. The matter has been referred to a special master. No scheduling order or information concerning a hearing, if any, concerning the request for injunctive relief has been found.

Volokh v. James, No. 22-cv-10195 (S.D.N.Y.)

Fifth Circuit Concludes the First Amendment Protects Speech, Not Censorship, Finding No Infirmity in Texas Law Promoting Fair Access to Internet Platforms


Net Choice, LLC, et al., v. Paxton, Attorney General of Texas, No. 21-51178 (5th Cir.) September 16, 2022.


Plaintiffs are internet technology platforms which have objected to recently-enacted Texas legislation intended to preclude viewpoint censorship.  Plaintiffs argue that the bill on its face violates the platforms’ First Amendment rights.

A three judge panel of the Fifth Circuit  has published its perceptionthat Net Choice and other plaintiffs have an inverted view of the First Amendment, which assures persons of the right to freedom of speech but which does not incorporate a corollary, but unenumerated, right to restrain speech.  In its September 16, 2022 opinion, the panel stated:

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.

Slip op. at 2.

The panel dismissed the notion that, as the platforms would have it, providers could terminate the accounts of anyone, particularly anyone articulating a disfavored view.

A platform might achieve market dominance by promising free speech, yet once ensconced as “the monopolist of ‘the modern public square’,” the platform might about face to cancel and ban anyone the platform’s employees might choose to disfavor.  Slip Op. at 2, citing Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).

The Texas bill in question precludes large media platforms from engaging in viewpoint discrimination with respect to access, excepting non-protected speech and speech specifically restricted by federal law, such as speech harmful to minors or other protective measures. Slip op. at 4.  Those who are restricted and believe this to be wrongful may seek relief in courts.  The state also might enforce the statute.

In addition, platforms must publish their moderation and use policies to the state concerning their moderation activities and actions, and mandates a complaint and appeal process for the platform’s users.

The Fifth Circuit panel noted that pre-enforcement facial challenges to to new laws, particularly any law concerning speech, are disfavored. Not only are courts constrained to decide only cases and controverses, but also federalism and comity concerns arise when federal courts review state laws before states have had the opportunity to do so.   To this must be added the extraordinarily high standard that attaches to facial challenges:  the challenging party must show that under no circumstances could the law in question be valid.

Here the challenge is one of overbreadth, a judicial doctrine intended to avoid chilling speech or association.

In this case the concern is not one of chilling speech, but of chilling censorship.  Censorship is inconsistent with the ‘pure speech’ that the overbreadth doctrine addresses.  Censorship is, at most, expressive conduct, to which only the most attenuated protections might attach.

No case directly supporting facial application of the overbreadth doctrine to censorship has been found, the court observed, and the as-applied challenges the platforms cite were presented when there were concrete challenged applications, unsuitable for use as a mechanism for invalidating a statute not yet operative.

Overbreadth challenges are intended to protect strangers to the litigation who could not lodge as-applied cases and whose speech would be chilled by an overly broad law.

The Fifth Circuit squarely rejects the notion that the Texas legislation inhibits speech by inhibiting platforms’ removal of speech, denouncing as inapt the platforms’ attempts to recast their censorship as protected speech.

The court also has declined to locate within the platforms’ notions of ‘editorial discretion’ any specifically protected speech interest.  Section 230 of the Communications Decency Act of 1996 hinders rather than advances the platforms” arguments.

The panel did not favor the planforms’ strained construction of censorship as speech to be protected, while nonetheless insisting no speech is involved in invoking the protections of Section 230.

Even if editorial discretion could be seen as a protected legal category, advanced content arrangement and censorship could not meet qualification as a protected category.  No such category of individual discretion has been recognized.  As the Texas stattue neither forces the platforms to speak or interferes with their speech, the Texas legislation is not constitutionally defective.

While standing alone the Texas statute is constitutionally sound, Section 230 removes all doubt, for it specifically states that platforms are not publishers or speakers when they host others’ content.

The appellate panel has concluded that Texas was correct in characterizing the social media platforms as “common carriers’ subject to nondiscrimination regulations.”  Slip op. at 53.

The court rejected the platforms’ assertion that the platforms are not part of the communications industry, for their own representations confirm that communications is their purpose.  The platforms hold themselves out to the public as ‘traditional’ common carriers do, ostensibly serving all on the same terms.  Slip op. at 54.

The court also rejected the idea that platforms might elide that common carrier obligations by  promulgating their own internal regulations for use.  This is immaterial, in that the same terms apply to all.

The circularity of the platforms’ argument that they are not common carriers because they engage in viewpoint discrimination, a position offered in order to avoid common carrier regulation is “upside down,” much as is the argument that they cannot be common carriers because they remove some obscene speech, as the law permits this, much as transit carriers would be permitted to oust ill behaved riders.  To put a fine point on it:

The Platforms offer no reason to adopt an ahistorical approach under which a firm’s existing desire to discriminate against its customers somehow gives it a permanent immunity from common carrier nondiscrimination obligations.

Slip op. at 55.

Moreover, at this time it is difficult to avoid recognizing that the public interest in a wide swath of  topic’s underlies and informs much, if not most, use of social media and other internet platforms.

Several federal courts of appeal have recognized platforms as public forums.  Slip op. at 56. Where such platforms serve as central locations for public debate, exclusion from the forums is exclusion from public debate.  Slip op. at 56.  Additionally, the platforms are central operators in economic life, generating wealth through advertising and access.  Platforms may become entrenched in a particular area that cannot be reproduced by competitors, and thus is irreplaceable to users.

Government licensing is not necessary to establish common carrier monopoly, but if it were, Section 230 would suffice.

The platforms’ arguments about state nondiscrimination rules applicable to common carriers overlook that challenges to such laws were successful only where the laws did not further anti-discrimination but supported discrimination.  Other cases from the Lochner era have been long ago been discredited and cannot be revived now.

The platforms’ similarity to common carriers only undermines their assertion that their speech rights are involved.  Common carriers transport the speech of others, but this does not involved any speech rights of the carriers.

Even if the platforms’ speech interests were implicated, facial pre-enforcement relief could not be granted where the content and viewpoint neutral legislation would survive intermediate scrutiny.

The platforms’ complaints about what they assert are burdensome disclosure and reporting requirements do not merit pre-enforcement relief, and the platforms do not point to any impingement on any First Amendment rights that would arise during compliance.  Moreover, any additional effort needed to tailor existing complaint processes does not imply any chilling effect, as the processes are intended to impede censorship, not speech.  Hypothesized flaws in the process do not merit pre-enforcement review, because the platforms cannot show that the lion’s share of the legislation is unconstitutional.

The Fifth Circuit has declined to follow the eleventh Circuit, which recently enjoined a Florida law inhibiting platforms” censorship.  The Florida law only concerned censorship of politicians campaign speech. The Florida law “prohibits all censorship of some speakers, while [the Texas law] prohibits some censorship of all speakers.”  Slip op. at 80.  Moreover, the Florida law implicated the platforms’ own speech by forbidding the platforms from adding addenda to others’ content.   Finally, the fines to be levied under the Florida law are onerous when compared with the non-monetary equitable relief provided to platform users by the Texas law.

The Fifth Circuit does not join the Eleventh Circuit’s view that there is a recognized category of protected speech called “editorial discretion,” The Fifth Circuit further refuses to consider censorship as protected speech and further does not agree that the common carrier doctrine does not support the imposition of nondiscrimination obligations on the platforms.

In a separate concurrence, Judge Edith H. Jones agreed that forbidding censorship is not forbidding speech:

In particular, it is ludicrous to assert, as NetChoice does, that in forbidding the covered platforms from exercising viewpoint-based “censorship,” the platforms’ “own speech” is curtailed. But for their advertising such “censorship”—or for the censored parties’ voicing their suspicions about such actions—no one would know about the goals of their algorithmic magic. It is hard to construe as “speech” what the speaker never says, or when it acts so vaguely as to be incomprehensible. Further, the platforms bestride a nearly unlimited digital world in which they have more than enough opportunity to express their views in many ways other than “censorship.” The Texas statute regulates none of their verbal “speech.” What the statute does, as Judge Oldham carefully explains, is ensure that a multiplicity of voices will contend for audience attention on these platforms. That is a pro-speech, not anti-free speech result. 

Slip op. at 91.

Even if speech were involved, Turner Broadcasting v. FCC, 512 U.S.  622 (1994), found that, if speech is involved where cable companies choose channels, under intermediate scrutiny ‘must carry’ preferences are content neutral.  Cable companies did not need to modify their own speech, the mandated speech was not associated with the operators, and the selection of channels could silence competitors.

Additionally, even if the platforms are correct in arguing that Texas’ legislation might chill the platforms” speech, this will not survive a faction attack:

Case by case adjudication is a small burden on the Goliaths of internet communications if they contend with Davids who use their platforms. 

Slip op. at 92.

Judge Leslie H. Southwick separately concurred in part and dissented in part.  Judge Southwick agreed that a facial attack on a state law is unlikely to succeed and that the platforms’ businesses are of great public importance.  He rejected the idea that the court’s conclusions can be recast by an ill-fitting speech/conduct distinction.

The judge observed that what the majority perceives to be censorship he perceives to be editing, and editing in a novel format, having its closest analog in newspaper editorial functions which the Supreme Court has found to be protected First Amendment activity.  Slip op. at 96.

If the First Amendment is involved, this judge agrees with the Eleventh Circuit that the government does not have a substantial interest in preventing unfairness, but the private actors do have an interest in freedom to be unfair.   Slip op. at 108-109.

Moreover, prohibitions on the de-platforming or de-monetizing go too far in attempting to serve any interest the government may have in protecting the free flow of information.  Slip op. at 110.

The judge believes that the common carrier cases do not strip carriers — here, platforms — of a First Amendment right to their own speech. Slip op. at 110-111.  Similarly, Section 230 does not impact platforms’ rights to moderate content. Slip op. at 111. Section 230 exists to underscore that a platform that publishes third party content does not endorse it or adopt it as its own.

Although concurring with the panel’s judgment, Judge Southwick cautioned that when platforms make decisions about permissible speech and its presentation. the platforms are involved in activity which is protect by the First Amendment, which does not require fairness.  Slip op. at 113.

NetChoice, et al. v. Attorney General of Texas, No. 21-51178 (5th Cir.) Opinion issued September 16, 2022

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

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

 

 

 

 

 

 

 

 

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

From Press Immunity to Impunity: Dissenting Senior U.S. Court of Appeals Judge for D.C. Circuit Suggests Overruling New York Times v. Sullivan

Tah and McClain v. Global Witness Publishing, et al., No. 19-7132 (D.C. Cir.) March 19, 2021.

Defendants Global Witness Publishing and Global Witness (“Global Witness”) published an investigation into bonuses paid to plaintiffs as members of a government entity engaged in negotiating to conclusion an oil lease of unprecedented significance for Liberia. Plaintiffs sued Global Witness for libel as Global Witness’ report on Liberian corruption intimated that the bonuses were bribes.

The United States District Court for the District of Columbia dismissed anti-Slapp proceedings, as federal courts are not bound by the District of Columbia Anti-Slapp Act. This conclusion was affirmed on appeal.

Similarly, the trial court’s dismissal of the libel action because the publication was subject to First Amendment protections. Plaintiffs assertions concerning ‘actual malice’ were without foundation in law, the court found. This conclusion, also affirmed on appeal, generated significant debate among the panelists about the meaning and future of the “actual malice” standard for libel actions concerning public figures, as established in New York Times v. Sullivan, 376 U.S. 254 (1964).

New York Times v. Sullivan insulated the press from suit for defamation for publication or broadcast of arguably defamatory material unless the publication was made with “actual malice,” either a knowledge that the published information was false or a reckless disregard of its truth or falsity. Id. Subsequent to the decision, it has been noted that meeting the “actual malice” standard is difficult, to say the least.

The present Global Witness affirmation of dismissal of plaintiffs’ claims prompted Senior Circuit Judge Silberman to dissent with some force, taking aim not only at currents in jurisprudence but also offering concerns about the consolidation of power in the media and in the technological giants engaging in distribution and curation of online publications.

The “actual malice” standard is unworkable and in this case has been erroneously interpreted, Judge Silberman declared, causing a rift between the D.C. Circuit and the Second Circuit. The standard for dismissal is “whether a complaint is plausible, not whether it is less plausible than another alternative explanation,” quoting Palin v. New York Times, 940 F.3d 804, 815 (2nd Cir. 2019). Dissent, Slip. op. at 15.

More significantly, New York Times v. Sullivan, Judge Silberman offered, echoing the views of Supreme Court Associate Justice Clarence Thomas, was a policy decision presented as interpretation of the Constitution. While it can be argued that the decision was necessary to protect the press from an avalanche of libel suits intended to discourage coverage of civil rights activities, the opinion itself is not jurisprudentially sound, as it is lacking in grounding in the facts and as it departs from centuries of common law. Id.

The Silberman dissent brooks activist judges no mercy. By “constitutionalizing” policy, the Supreme Court has embraced the standards of communist regimes. Once a principle is established, it will not be willingly relinquished. Dissent, Slip. Op. a 16. If comparing the Supreme Court’s actions to those of regimes antithetical to United States’ freedoms were not enough, Judge Silberman next ventured into the theological realm, remarking that an Associate Justice of the Supreme Court had scolded him for a perceived deficiency in regard for the Court. This chiding, Judge Silberman wrote, caused him to sense that the Court is more concerned with “maintaining a veneer of infallibility” than in correcting errors, no matter how far afield the Court had wandered or stepped on the toes of correlative branches. Id.

However much the New York Times v. Sullivan decision sought to promote the freedom of the press at the time the case was decided, today there is great concern, in Judge SIlberman’s mind, about the consolidation of media within one political point of view. Where it was once feared that press consolidation would induce bland homogeneity, that is hardly the case currently, he has observed, as hasty publication of extreme material, with the assurance no liability will ensue, causes no small amount of harm for which, for public figures, there is likely no redress.

When press powers are aligned with technological giants that curate material in line with the political iew of the press, the threat of suppression of ideas is, in Judge Silberman’s view, too real to overlook. While private technological companies are not bound by the First Amendment, suppression of disfavored views strikes the judge as “un-American.” Dissent, Slip. Op. at 22. Where history instructs that control of communication is an essential first step in establishing authoritarian control, the need to consider these issues is pressing indeed, Judge Silberman has written. Dissent, Slip. Op. at 23.

JustLawful Two Cents’ Worth: JustLawful shares the concerns expressed about media “hive mind” and about the capacity of online gatekeepers to work great mischief. JustLawful would never question the power and potency of the manner in which New York Times v. Sullivan has, rightly or not, accorded the press an immunity ordinarily reserved for the sovereign. Yet JustLawful questions whether overruling New York Times v. Sullivan would cause the press to be any more open to divergent thought. Moreover, if New York Times v. Sullivan were overruled with the view in mind to cause openness to divergence of thought, would that not be as much a policy decision as Judge Silberman’s criticism suggests the case has always been?

Tah and McClain v. Global Witness Publishing, Inc. and Global Witness, No. 19-7132 (D.C. Cir.) March 19, 2021.

Pour l’instant, ils ne parlent pas: Federal Judge Denies Social Media Platform Parler’s Request that Amazon Web Services Restore Its Service

Parler LLC v, Amazon Web Services, No. 2:21-cv-00031-BJR (W.D. Wash). Order denying preliminary injunctive relief entered January 21, 2021.


A federal court in Washington has denied Parler’s request that Amazon Web Services (AWS) be  ordered to resume web hosting service to social media platform Parler.  

 

The court found that the standards for preliminary injunctive relief, particularly with respect to a likelihood of success on the merits, had not been met. 

 

First, the court found that Parler had not established that it would prevail on an antitrust claim, as neither an agreement between AWS and Twitter, nor a restraint of trade had been shown. AWS has insisted no contact between AWS and competitor Twitter had occurred.   

 

Second, AWS’s pursuit of lawful remedies, such as might be found in the parties’ agreement,  cannot support a claim for tortious interference with business.  

 

Third, Parler was not substantially likely to prevail on its contract claim where Parler was admittedly in breach of its agreement with AWS and suspension or termination was a consequence of a breach under the parties’ agreement.  

 

Counsel admitted at hearing that damages could make Parler whole, making it impossible to perceive that irreparable harm would ensue if an injunction was not issued.  

 

The balance of equities did not favor Parler, as it was admittedly in breach of its contract with AWS. 

 

The court noted that AWS had offered evidence that AWS did not treat Parler and Twitter differently on the same facts, for different services are provided to each company.  

 

Finally, the court noted that no policy supports compelling AWS to provide a platform for speech that might incite violence.

 

Parler LLC v Amazon Web Services 2 21-cv-0031 BJR Order Denying Preliminary Injunction