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

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

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

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

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

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

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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WeChat and TikTok Win Preliminary Injunctions Against Trump Administration’s Efforts to Ban the Apps

The June 10, 2020 Trending Law Blog post discussed President Donald Trump’s plan to strongly regulate or close down certain social media platforms and the Executive Order he issued on May 28, 2020 to accomplish that goal. Thereafter, on August 6, 2020, President Trump issued two additional Executive Orders – Executive Order 13942 (to address “the threat” posed by the social networking service TikTok) and Executive Order 13943 (to address “the threat” posed by the messaging, social media and mobile payment app WeChat). The legality of both of the Executive Orders were successfully challenged in two district courts with preliminary injunctions being granted by two judges to enjoin the implementation, in part, of the two Executive Orders.

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Third Circuit Upholds Public School Student’s First Amendment Rights

On June 30, 2020, the United States Court of Appeals for the Third Circuit issued its opinion in B.L. v. Mahanoy Area School District, a precedential decision in which the Third Circuit affirmed a district court’s decision holding that a school district had violated a student’s First Amendment rights by suspending her from the school’s junior varsity cheerleading squad as a result of a Snapchat post which the school deemed in violation of school and team rules. The student’s social media post was made off school grounds, after school hours and without school resources.

Microphone in front of audience.

In reaching its decision, the Third Circuit found that the student’s speech was entitled to First Amendment protection despite a very “narrow exception” which limits students’ free speech rights when the speech “interferes with the rights of other students to be secure and to be let alone.” Opinion at 9. The court was persuaded to rule in the student’s favor because her speech took place away from campus (at a local store), over the weekend (on a Saturday), without school resources (she used her cellphone), and was shared “on a social media platform unaffiliated with the school” (Snapchat). Opinion at 15.

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Social Media Platforms Score Another First Amendment Victory

The January 16, 2019 and April 8, 2020 Trending Law Blog posts discussed cases in which the central issue was whether private entities (i.e., the operator of a public access television station and YouTube, respectively) could be deemed “state actors” — persons acting on behalf of a governmental body – for purposes of the First Amendment. In both cases, the courts held that the First Amendment does not prohibit the private abridgement of speech. On May 27, 2020, the United States Court of Appeals for the District of Columbia Circuit reached a similar decision in Freedom Watch, Inc., et al. v. Google Inc., et al.

In Freedom Watch, the plaintiffs, a conservative political interest group and political activist, alleged, among other things, that Google, Facebook, Twitter, and Apple “conspired to suppress conservative political views and violated the First Amendment.” The court of appeals rejected this claim, finding the plaintiffs did not adequately allege that the defendants could violate the First Amendment. The court stated:

In general, the First Amendment “prohibits only governmental abridgement of speech.” Manhattan Cmty. Access Corp. v. Halleck,139 S.Ct. 1921, 1928 (2019). Freedom Watch contends that, because the [Defendants] provide an important forum for speech, they are engaged in state action. But, under Halleck, “a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.” Id. at 1930. Freedom Watch fails to point to additional facts indicating that these [Defendants] are engaged in state action and thus fails to state a viable First Amendment claim.

Although the court of appeals did not elaborate on what additional facts could have been alleged to establish that a private entity can be deemed a state actor for purposes of the First Amendment, the court did implicitly suggest that such facts could be alleged.

It remains to be seen when a court might hold that private entities can be sued for First Amendment violations, but, for now at least, that day has not yet arrived.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

Filmmakers and Others Take on the U.S. Government Over Social Media Surveillance

On May 31, 2019, the United States Department of State implemented new registration rules which required visa applicants to disclose all of their social media identifiers, including anonymous ones, which they used during the five years prior to their application on twenty social media platforms, including Facebook, YouTube, Twitter, LinkedIn, and several foreign social media sites. The requirements also applied to people already living in the United States who applied for new visas.

On December 15, 2019, plaintiffs (the Doc Society, a non-profit organization which supports documentary filmmakers, and the International Documentary Association, a non-profit of association of documentary filmmakers) filed suit against Secretary of State Michael R. Pompeo and Acting Homeland Security Secretary Chad F. Wolf, seeking (1) a declaration that the registration requirements violated the Administrative Procedures Act and the First Amendment, (2) an injunction to prohibit enforcement of the registration requirements, and (3) an order expunging all information collected to date as a result of the registration requirements.

The government filed a motion on April 15, 2020 to dismiss the action for lack of jurisdiction and for failure to state a claim and the plaintiffs opposed the motion on May 27. Several amicus curiae briefs were filed in opposition to the motion on behalf of, among others, Twitter, Reddit, and the Electronic Frontier Foundation. The government filed its reply papers on June 10, 2020 and a decision on the motion is expected soon.

Regardless though of how the district court rules on the motion, it is highly likely that an appeal will follow in this important challenge which pits the plaintiffs’ civil liberty rights against the government’s social media surveillance practices in the name of national security.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.