Justice Kavanaugh's US Telecom Dissent Could Govern Platform Speech

Slightly less than a month ago, in NetChoice v. Paxton, the Supreme Court restored a preliminary injunction that prevented Texas's social media common carriage law, HB20, from taking effect. I already wrote about Justice Alito's dissent in that case, and as I noted back then, the Supreme Court's 5-4 majority did not explain its reasoning. This time, I'm going to take a stab at guessing that reasoning, and my guess involves then-Judge Kavanaugh's dissent in US Telecom v. FCC (2017).

Justice Kavanaugh, a member of the NetChoice majority, possibly showed his cards years earlier while dissenting from the denial of en banc review as a D.C. Circuit Judge in US Telecom. In that case, Kavanaugh explained his belief that the First Amendment bars the imposition of "net neutrality" regulations, including prohibitions on blocking, throttling, and paid-prioritization, on broadband providers. Specifically, Kavanaugh relied on Turner Broadcasting System v. FCC (1997), which he interpreted as ruling that First Amendment protections for editorial discretion apply to modern communications services, even though Turner addressed cable television rather than broadband. Kavanaugh would have applied the editorial protection afforded to cable providers in Turner to broadband providers.

Here, of course, we deal with Internet service providers, not cable television operators. But Internet service providers and cable operators perform the same kinds of functions in their respective networks. Just like cable operators, Internet service providers deliver content to consumers. Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit. Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.

Then, and most relevant to guessing the Court's possible reasoning in NetChoice, Kavanaugh argued that, in order to overcome the "intermediate scrutiny" protection the First Amendment affords to editorial discretion, the government needed to make a credible finding that broadband providers had market power. The FCC's order adopting the net neutrality regulations did not do that. To show the consequences of that omission, Kavanaugh argued that, if that approach were adopted, Congress could impose similar regulations on Internet platforms such as Facebook, Google/YouTube, and Twitter, and even traditional publishers like the New York Times, without obstacle.

If market power need not be shown, the Government could regulate the editorial decisions of Facebook and Google, of MSNBC and Fox, of NYTimes.com and WSJ.com, of YouTube and Twitter. Can the Government really force Facebook and Google and all of those other entities to operate as common carriers? Can the Government really impose forced-carriage or equal-access obligations on YouTube and Twitter? If the Government’s theory in this case were accepted, then the answers would be yes. After all, if the Government could force Internet service providers to carry unwanted content even absent a showing of market power, then it could do the same to all those other entities as well. There is no principled distinction between this case and those hypothetical cases.

The underlying sentiment of Kavanaugh's "slippery slope" argument above is that there is something wrong with common carriage regulation of Internet platforms and traditional publishers. And the Court long ago ruled that something is indeed wrong with common carriage style regulation of newspapers in Miami Herald Publishing Co. v. Tornillo (1974).

Perhaps the Court's majority in NetChoice reached the same conclusion as Kavanaugh in US Telecom, relying on cases like Turner and Tornillo as an indication that NetChoice is likely to succeed on the merits of its case, which is one of the factors for granting a preliminary injunction.

For now, we do not know the Court's reasoning, but Kavanaugh's opinion in US Telecom is a good place to start guessing. And we also do not know, assuming the majority embraced Kavanaugh's reasoning, whether a majority of the Justices would do the same in the context of common carriage regulation of broadband service. As Justice Alito explained in his NetChoice dissent, the Court has taken different First Amendment approaches for different technologies.

But we do know that, as NetChoice continues to move through the courts, it will have broad implications on communications and First Amendment law.

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.

U.S. Trade Rep's Notorious Markets Report Tackles Online Copyright Piracy

Today, Free State Foundation President Randolph May and I published a Perspectives from FSF Scholars paper titled "Modernize Copyright Protections to Combat Worldwide Online Piracy." The short paper discusses the U.S. Trade Representative's "Special 301 Report" and the need for updated measures to combat online piracy of copyrighted movies, TV, and music.

The U.S. Trade Representative released the Special 301 Report alongside a second report: the 2019 Review of Notorious Markets for Counterfeiting and Piracy. The Notorious Markets Report "highlights prominent and illustrative examples of online and physical markets that reportedly engage in or facilitate substantial privacy or counterfeiting. A goal of the [Notorious Markets List] is to motivate appropriate action by the private sector and governments to reduce piracy and counterfeiting."

This year's Notorious Markets Report includes e-commerce platforms and related online third-party marketplaces along with physical markets that traffic in counterfeit and pirated goods. The Report calls on third party marketplaces to do more to curb such trafficking, and endorsed the steps urged by the Department of Homeland Security in a report released in January of this year.

Additionally, this year's Notorious Markets Report features the nexus between malware and piracy as a focus issue. Dangerous malware is frequently involved in the payment processes or embedded with the pirated content, putting financial and other data of users at risk. Purchasing movies, TV, music and other content from legitimate vendors is therefore a matter of consumer safety. The connection between malware and copyright piracy is also addressed in our new book, Modernizing Copyright Law for the Digital Age – Constitutional Foundations for Reform.

We have called attention to previous editions of the Notorious Markets Report in blog posts from 2019 and 2018.

Homeland Security to Step Up Efforts Against Counterfeit and Pirated Goods

On January 24, the U.S. Department of Homeland Security released "Combatting Trafficking in Counterfeit Goods," a report to the President of the United States. The report lays out a series of actions that federal law enforcement agencies plan to take in order to combat the growing problem of trafficking in copyright-infringing goods as well as other counterfeit or pirated products.

Over the last several years, international trafficking in counterfeit and pirated goods – including infringing copies of copyrighted works – has increased. The report cites OECD figures indicating an increase in internationally traded counterfeits from $200 billion in 2005 to $509 billion in 2016, a 154% increase. As the report observes: "E-Commerce…facilitates the widespread sale of pirated versions of copyrighted works. Pirated medical books — which can contain errors that endanger patients’ lives — have been found on platforms along with other pirated books (textbooks and trade books) and illicit reproductions of music-CD box sets."

The purpose of DHS's report is "to develop a deeper understanding of how e-commerce platforms, online third-party marketplaces, and other third-party intermediaries facilitate the importation and sale of massive amounts of counterfeit and pirated goods." The report points out: "[R]ights holders are often burdened by e-commerce platforms that operate third-party marketplaces with a disproportionate share of the costs of monitoring, detection, and enforcement falling on rights holders. This burden falls heavily on smaller American enterprises that cannot spread the costs due to trademark infringements and brand enforcement over large sales and inventories." 

The report sets forth several enforcement-related actions that the U.S. Customs and Border Protection and the U.S. Immigration and Customs Enforcement agencies intend to take to curb the trafficking of counterfeited pirated goods into the U.S. Significantly, the report identifies application of civil fines, penalties, and injunctive actions for imports of counterfeit and pirated products. According to the report:

• CBP and ICE will immediately begin to identify cases in which third-party intermediaries have demonstrably directed, assisted financially, or aided and abetted the importation of counterfeit merchandise. In coordination with the Department of Justice, CBP and ICE will seek all available statutory authorities to pursue civil fines and other penalties against these entities, including remedies under 19 U.S.C. § 1526(f), as appropriate. 

• DHS recommends the administration pursue a statutory change to explicitly permit the government to seek injunctive relief against third-party marketplaces and other intermediaries dealing in counterfeit merchandise. 

• In the interim, DHS will provide information and support to registered brand owners looking to utilize statutory authorities to seek injunctive relief against persons dealing in counterfeit merchandise, whether through direct sales or facilitation of sales, following seizures of goods that are imported contrary to law. 

• ICE shall prioritize investigations into intellectual property-based crimes regardless of size and will make referrals for all such investigations where appropriate. 

• ICE will coordinate with the Department of Justice to develop a strategy to investigate and prosecute intellectual property violations at all levels of the supply chain at a sufficiently high level to respond to the concerns raised in this report and according to its budget and broader mission goals. 

The DHS report's action items and recommendations appear sensible and hopefully will help reduce trafficking in copyright-infringing goods as well as other counterfeit and pirated products. Free State Foundation President Randolph May and I have previously recommend that foreign trade agreements and treaties negotiated by the U.S. include language requiring foreign nations to improve their interdiction efforts and prosecutorial resources to stop the international flow of infringing goods and other illicit products.