First Amendment

The Supreme Court Declines Another Opportunity to Consider Section 230

/ Rob Nussbaum

Just twelve days after Supreme Court of the United States issued a per curiam decision in Gonzalez v. Google LLC, in which the Court declined to address the application of §230 of the Communications Decency Act, 47 U.S. §230(c)(1)  (“§230”) (discussed in the June 2, 2023 Trending Law Blog post) to social media platforms, the Supreme Court denied certiorari in the matter of Jane Does v. Reddit, Inc., a case decided on October 24, 2022 by the United States Court of Appeals for the Ninth Circuit. In Reddit, parents and/or victims sued Reddit, a social media platform, after users of Reddit posted sexually explicit images and videos of minors on the site. The plaintiffs claimed Reddit was liable under the federal sex trafficking statute as a beneficiary of child pornography because Reddit financially benefitted from hosting the content. The district court dismissed the action and the Ninth Circuit affirmed, both courts finding that §230 protected Reddit from liability.

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Section 230 Dodges Yet Another Judicial Bullet

/ Rob Nussbaum / 1 Comment

As reported in prior Trending Law Blog posts, Section 230 of the Communications Decency Act, 47 U.S. §230(c)(1)  (“§230”), has come under attack by politicians and members of the public who seek to remove the statute’s immunity provision which protects social media platforms when they are sued for re-publishing content on their websites from a third-party.

On May 18, 2023, the Supreme Court of the United States issued a per curiam decision in Gonzalez v. Google LLC in which the Court declined to address the application of §230 to a case which alleged that Google “was both directly and secondarily liable” for a terrorist attack as a result of a terrorist organization’s use of YouTube, which Google owns and operates. (The Gonzalez case was previously discussed in the November 30, 2022 Trending Law Blog.) Rather than addressing the issue substantively, the Supreme Court reversed and remanded the matter to the United States Court of Appeals for the Ninth Circuit, which had held that certain claims against Google were not barred by §230. The Court instructed the Ninth Circuit “to consider plaintiffs’ complaint in light of the Court’s decision in” Twitter, Inc. v. Mehier Taamneh (discussed below).

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Social Media Influencer Sues Facebook and Twitter

/ Rob Nussbaum

In Hart v. Facebook Inc., et al., the United States District Court for the Northern District of California dismissed a social media influencer’s lawsuit against Facebook and Twitter for allegedly violating his First Amendment rights by flagging his posts and suspending his social media accounts. The influencer also sued President Joe Biden and Surgeon General Vivek Murthy in the same action for allegedly colluding with the social media platforms to monitor, flag, suspend and delete his posts.

In Hart, the plaintiff alleged that Facebook and Twitter restricted him from posting to his accounts or flagging his posts after he posted what the platforms considered to be misleading information about COVID-19. The platforms each found the posts at issue to be in violation of their terms of services and policies. Facebook and Twitter each moved to dismiss the complaint for failing to state a claim upon which relief could be granted because there was no state action, a requirement for a First Amendment violation.

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The Supreme Court Gets a Second Shot at an Important First Amendment and Social Media Issue

/ Rob Nussbaum

The May 10, 2021 post The Donald Trump Twitter Case: Vacated and Dismissed as Moot by the Supreme Court reported how the U.S. Supreme Court dismissed Knight First Amendment Inst. at Columbia University v. Trump, in which the Southern District and Second Circuit found that then-President Donald Trump’s decision to block certain social media users from accessing his Twitter account was unconstitutional viewpoint discrimination. In its one paragraph decision, the Supreme Court failed to address the appeal on its merits, instead dismissing the case as moot because Donald Trump was no longer President. The Supreme Court now has another opportunity to consider whether public officials violate the First Amendment by blocking certain members of the public from commenting on the officials’ publicly accessible social media pages thanks to the Ninth Circuit case of Garnier v. O’Connor-Ratcliff.

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Will it be the End of §230 as We Know It?

/ Rob Nussbaum / 1 Comment

Section 230 of the Communications Decency Act, 47 U.S.C. §230(c)(1) (hereafter “§230”), protects internet services, like Facebook, Twitter, and the like, from liability based on words used by third parties who use their platforms. The August 23, 2022 Trending Law Blog post discussed how on March 7, 2022, §230 staved off an attack by a private plaintiff in Texas, who challenged Facebook’s §230 protection, when the Supreme Court of the United States declined to decide whether §230 provided immunity from suit to internet platforms “in any case arising from the publication of third-party content, regardless of the platform’s own misconduct.” At that time, Justice Clarence Thomas stated that while he agreed the Texas matter was not appropriate for review by the Supreme Court, he did call for the Court “to address the proper scope of immunity under §230” in a future appropriate case. Apparently that case has arrived.

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A Possible ‘High Noon’ for Social Media Platforms Looms at the Supreme Court

/ Rob Nussbaum / 2 Comments

The August 13, 2021 Trending Law Blog post discussed how, in NetChoice, LLC v. Attorney General, State of Florida, the United States District court for the Northern District of Florida enjoined Florida from enforcing a law that targeted some, but not all, social media platforms based on the content of the speech hosted on their websites. Thereafter, the September 8, 2022 Trending Law Blog post discussed how in December 2021 a federal court in Texas enjoined enforcement of a law in the case of NetChoice, LLC v. Paxton which would have limited a large number of social media companies from moderating content. The Florida case was ultimately appealed to the United States Court of Appeals for the Eleventh Circuit while the Texas case was appealed to the United States Court of Appeals for the Fifth Circuit.

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The NetChoice LLC Texas Case: Stay by Fifth Circuit Vacated by the Supreme Court

/ Rob Nussbaum / 1 Comment

The December 16, 2021 post “Texas Enjoined from Enforcing Law Targeting Social Media Platforms” reported how on December 1, 2021 a federal court in Texas enjoined enforcement of a law which would have limited a large number of social media companies from moderating content on their websites.

Thereafter, on May 11, 2022, the United States Court of Appeals for the Fifth Circuit issued an Order which allowed the Texas law to go into effect, essentially staying the district court’s determination.

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Texas Enjoined from Enforcing Law Targeting Some Social Media Platforms

/ Rob Nussbaum / 1 Comment

The August 13, 2021 Trending Law Blog post discussed how the United States District court for the Northern District of Florida enjoined Florida from enforcing a law that targeted some, but not all, social media platforms based on the content of the speech hosted on their websites. On December 1, 2021, a federal district court in Western District of Texas, following arguments heard in NetChoice LLC v. Paxton, relied on the First Amendment and similarly enjoined Texas from enforcing a law which would have limited a large number of social media companies from moderating content on their websites.

The Texas statute – HB20 – prohibited certain social media companies from “censoring” users of a platform based on the users’ viewpoints. The statute, however, only applied to certain social media companies, i.e., ones with more than 50 million users and which allowed users to create accounts so they could communicate with others by posting information, images, comments or messages. The law also imposed disclosure and operational requirements on the social media platforms and allowed Texas users or people doing business in Texas to seek injunctive relief and attorneys’ fees if they believed their viewpoint speech had been improperly censored. The statute similarly allowed the Texas Attorney General (defendant Ken Paxton) to seek injunctive relief and attorneys’ fees for violations of the law. Two social media trade associations filed suit to prevent Texas from enforcing HB20 based on, among other grounds, the First Amendment.

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Florida Enjoined from Enforcing Law Targeting Some Social Media Platforms

/ Rob Nussbaum / 2 Comments

Earlier this year, Florida enacted Senate Bill 7072 – The Stop Social Media Censorship Act – which imposed requirements and prohibitions on some, but not all, social media platforms relating to the speech hosted on their websites. The Act was scheduled to take effect on July 1, 2021, but on June 30, 2021, Judge Robert L. Hinkle of the United States District Court for the Northern District of Florida entered a preliminary injunction in NetChoice LLC, et al. v. Ashley Brooke Moody, et al., which enjoined various Florida officials from taking any steps to enforce the Act because he found the view-point based legislation was preempted by federal law and violated the First Amendment.            

The Florida legislation at issue, among other things, prohibited social media platforms from:

  • Barring candidates for office from their sites;
  • Using an algorithm to put a candidate’s posts in the feed of a user who wished to receive it or to exclude the post from the feed of a user who does not wish to receive it;
  • Taking action to “censor, deplatform or shadow ban” a “journalistic enterprise” based on the content of its publication or broadcast; and
  • Changing their user rules, terms and agreements more often than every 30 days
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U.S. Supreme Court Upholds Student’s Off-Campus Free Speech Rights

/ Rob Nussbaum

The September 1, 2020 Trending Law Blog post discussed how the United States Court of Appeals for the Third Circuit in Mahanoy Area School District v. B.L., 964 F.3d 170 (2020), upheld a public school student’s First Amendment rights based on social media posts she made off school grounds, after school hours, and without school resources.  The court found that the student’s free speech rights were violated by the school’s decision to suspend her from the school’s junior varsity cheerleading squad because of posts she made to Snapchat.

The case was subsequently appealed to the Supreme Court of the United States by the school district, which asked the Court to consider whether public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school when the student’s speech occurs off campus. The Supreme Court granted the petition for certiorari and, in a decision rendered on June 23, 2021, held that while schools may have an interest in regulating some off-campus speech, the facts here were not sufficient to overcome the student’s free speech rights.

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