TMT with Mike O'Rielly - Ep 5: Madison Project & Pending SCOTUS First Amendment Cases

Episode 5 of TMT with Mike O'Rielly was released on June 19. The episode is entitled "The Madison Project & Pending SCOTUS First Amendment Cases," and it features a discussion with veteran constitutional litigator Floyd Abrams. Tune in to hear former FCC Commissioner and Free State Foundation Adjunct Senior Fellow Mike O'Rielly and Mr. Abrams talk about the mission of the Madison Project as well as recent and pending free speech decisions by the Supreme Court. 

Panel Discusses Gonzalez v. Google and the Future of Section 230 Immunity

For an incisive debate and discussion about legal immunity for editorial, publishing, and distribution decisions by major online platforms, tune in to the video or audio of the January 24 webinar hosted by the Federalist Society titled "Section 230 Goes to Court: Gonzalez v. Google and the Future of the Electronic Town Square."  

The webinar was moderated by Boyd Garriott and it featured panelists Ashkhen Kazaryan, Joel Thayer, and Free State Foundation President Randolph May. The webinar expert panel discussed the meaning and scope of immunity conferred on online platforms under Section 230 of the Communications Decency Act, particularly in light of the case of Gonzalez v. Google. The issue in focus in the case is whether immunity under Section 230(c)(1) applies when online platforms make targeted recommendations of content to viewers. The U.S. Supreme Court has schedule oral argument in the case for February 21. 

 

FSF President May wrote about Gonzalez v. Google in his August 2022 Perspectives from FSF Scholars, "Thinking Clearly and Speaking Freely – Part 13: A Reasonableness Standard for Fixing Section 230." 

Jonathan Turley Comes to the Defense of Free Speech

The July 2022 issue of the Harvard Journal of Law & Public Policy features an incisive article by George Washington University Law Professor Jonathan Turley titled "Harm and Hegemony: The Decline of Free Speech in the United States." In his 132-page article, Professor Turley looks at the growing and regrettably successful anti-free speech movement spearheaded by academics, politicians, and major corporations – particularly "Big Tech" companies. He examines and critiques the rising anti-free speech movement's "harm principle" for rationalizing crass censorship and the suppression of opposing viewpoints in public venues – including universities and the Internet – where freedom of speech previously has been widely affirmed as good in itself and vital to a free society of free people.  

Professor Hurley proposes ways to protect free speech through legislation. He writes: "There is a role for the government in reinforcing traditional enclaves for the exercise of the freedom of expression in our society. Indeed, with the rise of massive private systems of censorship, free speech may now depend on the government more than at any time in our history." Regarding physical marketplaces, Professor Turley's recommendations include legislation to protect public political expression from violent threats and actions by third parties that intend to prevent their exercise of free speech by incentivizing engagement by state law enforcement – or perhaps by federal law enforcement in the event that local law enforcement fail to arrest or prosecute third parties that engage in such violence. 

As for virtual marketplaces, Professor Turley observes the significant extent to which online companies such as Facebook, Twitter, and YouTube (Google) have embraced suppression of speech on the Internet. According to Professor Turley: "The expansive view of harmful speech on the Internet has led to one of the largest censorship systems in history." This rings true for anyone who has been paying attention to the behavior of major social media platforms and it should be disturbing to anyone who has valued freedom of speech on the Internet. To address the problem of online censorship and overt bias by dominant social media platforms, he recommends legislation to recognize some form of public forum protections for users of those platforms –perhaps by tying legal immunity protections for content moderation to case law protecting speech from government restrictions or by establishing a basic viewpoint neutrality requirement.

Underlying Prof. Turley's thoughtful approach is a close reading of First Amendment decisions –such as Miami Herald Publishing Co. v. Tornillo (1974), Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006) – from which he draws a distinction between government improperly "compelling" private speakers to speak messages with which they disagree from government permissibly "coercing" free speech forums of content neutrality and protection. Writes Professor Turley: 

The focus should be on preserving neutral forums on the Internet such as social media sites rather than forcing companies to publish a balance of views. This is the difference between a focus on limiting viewpoint censorship and the compulsion of viewpoint expression.

Notably, in NetChoice, LLC v. Paxton (2022), the U.S. Court of Appeals for the Fifth Circuit deduced from Tornillo, Hurley, Rumsfeld, and several other First Amendment decisions the same basic distinction identified by Professor Turley. In NetChoice, the court wrote that "the State may not force a private speaker to speak someone else's message… [b]ut the State can regulate conduct in a way that requires that private entities to host, transmit, or otherwise facilitate speech." (Free State Foundation President Randolph May offered his view of the Fifth Circuit's decision in his September 28 Perspectives from FSF Scholars, "Thinking Clearly and Speaking Freely – Part 12: Shining a Spotlight on Big Tech's Section 230 Immunity.")

If the reading of First Amendment case law by Professor Turley and by the Fifth Circuit hold, federal or state legislation establishing public forum protections for users of major social media platforms likely will pass constitutional muster so long as social media platforms are not compelled to speak and legislation focuses on promoting the speech of their users. Indeed, the viability of the distinction between compelling and facilitating speech may come down to a future decision by the Supreme Court, should it end up reviewing the Fifth Circuit's decision in NetChoice and the Eleventh Circuit's decision regarding Florida's law regulating social media. 

Law professors should be among the first ranks in defending the First Amendment as well as the freedom to speak without bullying by angry mobs or social media companies. After all, their vocation vitally depends on the ability to freely speak and publish. One should hope and expect that years spent dedicated to the study of law would lead legal academics to treasure the freedom of speech as a pillar of American constitutionalism and as a blessing to the people of America. Yet genuine affirmations of the importance of freedom of speech and rebukes against censorship seem to be rare. Thankfully, Professor Turley has stepped up to call out the dangers from the anti-speech movement and posit some constructive proposals for protecting the freedom of speech. 

Justice Thomas Again Suggests SCOTUS Should Interpret Section 230's Plain Text

On Monday, the Supreme Court denied certiorari in Jane Doe v. Facebook, and Justice Thomas wrote another statement suggesting the possibility that the Supreme Court ought to review Section 230 of the Communications Act in an appropriate future case. Justice Thomas's statement in Doe makes the same point he did in his earlier statement in Malwarebytes, Inc. v. Enigma Software Group – that courts interpreting Section 230 have often made policy and purposivist arguments to deny common law distributor liability, arguably contradicting the statute's plain text. 

In Doe, the Texas Supreme Court dismissed common law claims against Facebook brought by a then 15-year-old girl lured into sex trafficking by an adult male sexual predator on Facebook. In dismissing these claims, the Texas Supreme Court treated Facebook's actions as the "publication of information created by third parties" for which Section 230(c)(1) provides immunity.

But Doe's dismissed common law claims were "negligence, negligent undertaking, gross negligence, and products liability based on Facebook's alleged failure to warn of, or take adequate measures to prevent, sex trafficking on its internet platforms." As Justice Thomas noted in Malwarebytes, these types of claims, and particularly the products liability claim, may have involved actions or omissions by Facebook entirely outside the scope of "publication of information created by third parties," to which Section 230's immunity applies.

However, Justice Thomas respected denial of certiorari in Doe for procedural reasons, because the Texas Supreme Court permitted Doe's statutory claim to proceed, making the case unripe. He believes the Supreme Court should interpret Section 230 in the appropriate future case.

Justice Thomas continues to be a prolific commentator on communications law, also penning certiorari statements and opinions on applying common carriage and public accommodations law to Internet platforms, Brand X v. NCTA, the FCC's independence, and FCC preemption in recent years.

Free State Foundation President Randolph May has written at length on Justice Thomas's views on Section 230 and platform common carriage in his Thinking Clearly About Speaking Freely series. The Free State Foundation also cosponsored Catholic University's inaugural Seigenthaler Debate on platform common carriage. Director of Policy Studies Seth Cooper wrote an October 2021 Perspectives from FSF Scholars about a circuit split over whether there is an exception to Section 230 immunity for claims pertaining to state intellectual property law – a split that could provide future occasion for the Supreme Court to interpret Section 230.

Third Circuit Declines to Rehear Pro-IP Rights Decision Regarding Section 230

On November 17, the U.S. Court of Appeals for the Third Circuit denied a petition for rehearing en banc of the Circuit panel decision in Hepp v. Facebook. In its decision from September 23 of this year, the Third Circuit concluded that the legal immunity conferred on "interactive computer services" by Section 230(c) of the Communications Decency Act does not apply to claims based on state intellectual property laws. Section 230(e)(2) is title "No Effect on Intellectual Property Law" and it states that "[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property."

The Third Circuit's decision in Hepp v. Facebook was the subject of my Perspectives from FSF Scholars titled "Court Rejects Section 230 Immunity from State Intellectual Property Law." As pointed out in that Perspectives, the Third Circuit's decision creates a clear circuit split with the Ninth Circuit on the issue of whether Section 230(e)(2) provides an exclusion from immunity for state intellectual property claims. The Third Circuit's decision is solidly grounded in the natural reading of the statutory text, it respects the role of IP rights in flourishing markets, and it deserves to stand. The denial of a rehearing en banc is good thing. It remains to be seen if Facebook, Reddit, or Imgur will appeal the decision to the U.S. Supreme Court.  

Federalist Society Series Tackles Legal Issue Posed by Online Free Speech Suppression and Public Policy Responses

For an interesting discussion of legal issues posed by Big Tech censorship of content posted by users of social media, be sure to check out the Federalist Society's six part-series hosted by D.C. Circuit Judge Gregory Kastas. The six-part series addresses online speech suppression as well as legal attempts to address it in light of the First Amendment, federal preemption, state action, common carriage, antitrust, and Section 230 of the Communications Decency Act. Each part features distinguished panelists who bring their distinct views to the table. The Federalist Society should be commended for bringing putting this thoughtful and incisive series together. The last two parts of the recently concluded series are below:

Parts one, two, three, and four also can be found on the Federalist Society's website. 

FSF President Randolph May's Statement Regarding Former President Trump's Lawsuits Against Social Media Companies

Free State Foundation President Randolph May issued the following statement in reaction to former President Trump’s filing of lawsuits against Twitter, Facebook, and Google’s YouTube:

Regardless of what one thinks of former President Trump, or his use of social media, the lawsuits he filed today against Twitter, Facebook, and Google's YouTube are not frivolous. They claim that the immunity from liability granted to social media companies by Section 230 of the Communications Act, in effect, converts these private firms into 'state actors' for First Amendment purposes because the immunity grant amounts to a delegation of authority by Congress that facilitates the companies' censorship actions. If the state action theory is correct, then the Big Tech companies would not be able to censor posts — or deplatform persons — based on the content of their lawful speech.

 

In his recent Biden v. Knight First Amendment Institute concurring opinion, Justice Thomas lent credence to the "state actor" theory upon which Trump’s lawsuit is based, and other respected scholars have done so as well. While the claim is not frivolous, I'm not convinced at this point that Section 230's grant of immunity, standing alone, is sufficient to make the Big Tech social media companies state actors. It is certainly possible, however, that if the case makes it to the discovery phase, Trump could uncover a trove of emails from various congressional officials urging the social media companies to take certain actions which the firms quickly took. That would make the case even more interesting, and the claim stronger.

Video of FSF Fireside Chat with FTC Commissioners Noah Phillips & Christine Wilson

To kick off the Free State Foundation's Thirteenth Annual Telecom Policy Conference, FSF President Randolph May moderated a Fireside Chat with FTC Commissioners Noah Phillips and Christine Wilson. Theodore Bolema, a member of the FSF Board of Academic Advisors, also participated. Policy topics included antitrust, data privacy, and Section 230 immunity for Big Tech platforms. Video of the March 19 event is now available online:

FSF President Randolph May on C-SPAN Discussing Social Media

This past weekend I appeared on C-SPAN's "The Communicators" program discussing the problems with social media and what to do about them -- if anything. Appearing with me was Public Knowledge's Harold  Feld.

You can watch the program here.

First Amendment Challenges Involving Section 230 Fall Short

On December 11, 2020, the U.S. District Court for the District of Columbia dismissed a First Amendment challenge to President Trump's Executive Order (EO) 13,925. Among other things, EO 13,925 charged the U.S. Secretary of Commerce to file a petition with the FCC requesting that the Commission propose regulations to clarify the scope of Section 230(c) of the Communications Decency Act. 

In CDT v. Trump, the District Court concluded that CDT's First Amendment claims against President Trump did not specify a concrete or imminent injury, and that CDT therefore lacked legal standing to bring its claims. As the court explained, Article III precedents require an organization making a claim to sufficiently allege a demonstrable injury to a party's activities, and that "a mere setback ... to abstract social interests" is insufficient. Additionally, the court concluded that CDT's alleged injury from the EO were not imminent but conjectural or hypothetical. The court observed that the EO doesn't apply to private parties but "only sets a course of government process into motion." The EO, for instance, directed NTIA to "file a petition for rulemaking . . . requesting that the FCC expeditiously propose regulations" regarding the meaning and application of Section 230. According to the court, speculative future government action through that process is not enough to establish Article III standing.

 

The court in CDT v. Trump also concluded that the injunctive and declaratory relief CDT sought are unavailable against the President – the lone defendant named in the case. And the court determined that even if Article III standing were satisfied, CDT's claims still were unripe for adjudication. The result in CDT v. Trump was similar to the result reached in October 2020 by the U.S. District Court for the Northern District of California. In Rock the Vote v. Trump, the court concluded that the party bringing First Amendment challenges against EO 13,925 lacked Article III standing. 

 

In sum, the dismissals of these First Amendment challenges to EO 13,925 were resounding, and the parties raising them resorted to standing arguments that were so thin as to appear silly. These court decisions are reminders of a broader point that many First Amendment-related claims about Section 230 are off-base. As Free State Foundation President Randolph May explained in his November 2020 Perspectives from FSF Scholars paper, "narrowing Section 230 is not necessarily a First Amendment violation." It is one thing for government to mandate what a private actor must say, but it is something else for the government to confer special immunity on private actors from the consequences to third parties of their speech-related conduct. And as CDT v. Trump and Rock the Vote v. Trump show, it is altogether another thing for government agencies to undertake a process to consider what the terms of Section 230 mean and how they apply – and which may or may not lead to some sort of government action. 

 

For more on the FCC's authority to issue interpretations of Section 230's terms as well as discussion of First Amendment-related claims, see the Free State Foundation's public comments and reply comments filed in the Commission's proceeding. 

Media Advisory: FSF Agrees with FCC General Counsel's Legal Analysis of FCC's Authority to Construe Section 230

The following statement may be attributed to Free State Foundation President Randolph May:

I've reviewed the analysis of the FCC's General Counsel regarding the FCC's authority to conduct a proceeding to clarify the meaning of certain ambiguous terms in Section 230, and I agree with his legal analysis. Indeed, his analysis, relying on Section 201(b) of the Communications Act, is fully consistent with the comments and reply comments that FSF filed with the Commission. See the excerpts below and the attached comments and reply comments.

 

The General Counsel's determination that the Commission possesses authority to conduct a proceeding to clarify the meaning of Section 230's ambiguous terms does not mean that the courts necessarily will agree that any Commissions interpretations are correct, only that courts reviewing the agency’s action will accord the agency’s interpretation substantial deference.

 

I hope, if the Commission does conduct a proceeding to clarify the meaning of Section 230's provisions, that those participating, regardless of their political persuasion, will not let politics and reflexive preconceptions trump sound legal analysis. And it is important to keep foremost in mind, given that Section 230 is now a quarter-century old, and today's Internet ecosystem bears little or no resemblance to that which existed at the time of Section 230's adoption, Congress, ultimately, may choose to revise or not revise the law as it sees fit.

.     .     .     .     .

 

Here are brief excerpts from the Free State Foundation's submissions co-authored by me and FSF Senior Fellow and Director of Policy Studies Seth Cooper:

 

FSF Comments: "Section 230 is part of the Communications Act of 1934, as amended. And the Commission has authority pursuant to Section 201(b) to 'prescribe such rules and regulations as may be necessary in the public interest to carry out this chapter.'"

 

FSF Reply Comments: "[I]t is worth noting that the Court relied on a grant of authority in Section 201(b) as empowering the Commission to issue a declaratory ruling clarifying the meaning of certain wireless siting provisions in Section 332 of the Communications Act."

MEDIA ADVISORY: The FCC Moves Forward in Its Section 230 Proceeding

The following statement may be attributed to Free State Foundation President Randolph May:

It looks like FCC Chairman Ajit Pai agrees with the comments that the Free State Foundation submitted to the Commission contending that the agency possesses the authority to clarify the meaning of some of Section 230's terms and that it may be able to do so consistent with the First Amendment. In our comments, we emphasized that there is a difference between the FCC providing its interpretation as to the meaning of Section 230's provisions, for whatever weight the courts then may decide to give to the agency's interpretation, and the FCC taking enforcement actions pursuant to Section 230. And we emphasized that any action that has the effect of narrowing Section 230's broad grant of immunity doesn't necessarily violate the First Amendment. There is an important distinction, for purposes of the First Amendment application, between protecting a content provider's, say Twitter's, right to decide what to carry or delete, and granting such content provider immunity from suits for all of its content moderation decisions. I'm pleased, but not surprised, that Chairman Pai appreciates these points regarding the First Amendment and the Commission's legal authority.