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

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?

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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