This update covers media and freedom of speech cases before the United States Supreme Court, the Federal Appeals Courts and the Federal District Courts in 2022 and other media law news.
United States Supreme Court
Gonzalez v Google and Twitter v Taamneh. The United States Supreme Court has granted cert in two cases which examine the intersections between anti-terrorism laws and Section 230 of the Communications Decency Act.
Section 230 generally protects social media companies from being held liable for the content their users make and post. In Gonzalez, however, the petitioners argue that Section 230 does not protect platforms from liability where the site’s recommendation algorithms target users and recommend harmful content, like ISIS propaganda and recruitment videos. The petitioners allege that Google (which owns YouTube) aided ISIS’s recruitment by recommending ISIS videos through YouTube’s algorithms. The Court will take up the appeal after a divided panel of the U.S. Court of Appeals for the Ninth Circuit held that Section 230 does protect such recommendations, at least where the provider’s algorithm treated other third-party content similarly.
In Twitter, the Court has been asked to review the decision of the U.S. Court of Appeals for the Ninth Circuit that Twitter, Facebook, and Google could be held liable for aiding and abetting international terrorism by allowing ISIS to use their platforms, regardless of Section 230.
SCOTUSblog and Lawfare consider what these cases may mean for the scope of Section 230 and social media companies’ approach to content moderation.
The Supreme Court has declined to hear the appeal of the MyPillow chief executive, Mike Lindell, allowing the $1.3bn defamation lawsuit which Dominion Voting Systems is pursuing against him to go ahead. Lindell was appealing the August 2021 ruling of federal court judge Carl Nichols, which held that Dominion had ‘adequately alleged that Lindell made his claims knowing that they were false or with reckless disregard for the truth’ and, thus, that Dominion had grounds to bring the lawsuit against Lindell.
Federal Appeals Courts
NetChoice, LLC v Paxton, No. 21-51178 (5th Circuit, 2022). In September 2022, the U.S. Court of Appeals for the Fifth Circuit upheld a Texas law which requires social media platforms to meet certain transparency requirements and significantly limits their ability to moderate content. The Fifth Circuit’s decision comes after the court had previously stayed a district court’s preliminary injunction against the Texas law and the U.S. Supreme Court voted 5-4 to vacate the stay.
In its decision, the Fifth Circuit held that the First Amendment does not protect platform moderation and rejected the wide interpretation of Section 230 taken by most U.S. courts, arguing instead that the provision permits content moderation only in certain, narrow circumstances. Furthermore, the court held that Texas can legally characterize social media platforms as ‘common carriers’—that is, as ‘communication and transportation providers that hold themselves out to all members of the public without individualized bargaining—and impose non-discrimination provisions on them.
Lawfare and the Moderated Content podcast from Stanford Law School offer commentary on the Fifth Circuit’s decision.
Moody v NetChoice, LLC, No. 21-12355 (11th Circuit, 2022). In May 2022, the U.S. Court of Appeals for the Eleventh Circuit upheld much of a stay on the implementation of Florida’s new social media law, S.B. 7072. It struck down all of the content restrictions in the Florida bill, rejecting Florida’s defense that these measures treat social media platforms as ‘common carriers’ which are not engaged in protected speech and ruling that social media companies’ content moderation and organizing activities do constitute speech for the purposes of First Amendment review. However, the court upheld some of the transparency rules and allowed those provisions to go into effect.
SCOTUSblog and Lawfare discuss Florida’s cert petition in the Supreme Court asking the justices to reinstate S.B. 7072.
As SCOTUSblog notes, the Supreme Court will almost certainly take up the NetChoice litigation, given the conflicting decisions reached by the Eleventh and Fifth Circuits.
Arkansas Times LP v Mark Waldrip, et al, No. 19-1378 (8th Circuit, 2022). The U.S. Court of Appeals for the Eighth Circuit, sitting en banc, ruled that an Arkansas law requiring state contractors to pledge that they would not boycott Israel did not violate the First Amendment. The majority held that the law’s definition of ‘boycotting Israel’ only related to commercial activities and that, under the Supreme Court’s decision in Rumsfeld v Forum for Academic & Institutional Rights, Inc. (FAIR), 547 US 47 (2006), purchasing decisions are non-expressive conduct which are not protected. The ruling reversed a 2021 decision by a divided Eighth Circuit panel which held that the law infringed on constitutionally protected expressive activity by deterring vendors from supporting or promoting boycotts of Israel.
In another anti-BDS lawsuit, a federal district court granted an injunction preventing Texas from enforcing its anti-BDS law against a Texas engineer. An appeal from this decision is now pending before the U.S. Court of Appeals for the Fifth Circuit.
Lawfare discusses the anti-BDS litigation in Arkansas and Texas and the debate among First Amendment scholars over whether anti-BDS laws are constitutional or not.
Goyette and otrs v City of Minneapolis,, Case No. 20-cv-1302 (WMW/DTS, February 8, 2022). A federal court in Minnesota has granted a six-year permanent injunction which will prohibit Minnesota State Patrol (‘MSP’) from attacking or arresting journalists while they are reporting on and recording protests. In particular, the injunction prohibits MSP from arresting, threatening to arrest, and/or using physical force or chemical agents on journalists; ordering journalists to stop photographing, recording or observing a protest; making journalists disperse; and seizing or intentionally damaging journalists’ equipment. The injunction was approved as part of a settlement between journalists who were attacked and injured by MSP while covering Black Lives Matter protests over the killings of George Floyd and Daunte Wright.
Project Veritas v Leland Stanford Junior University, 2022 WL 1555047 (W.D. Wash. May 17, 2022), a Washington federal court granted the first motion for expedited relief and dismissal under the Uniform Public Expression Protection Act (‘UPEPA’). In 2021, Washington became the first state to enact UPEPA, a model law adopted by the Uniform Law Commission which is intended to prevent ‘strategic lawsuits against public participation’, or SLAPPs, and afford protection to SLAPP defendants like the news media. UPEPA has also now been enacted by Kentucky and Hawaii.
The 2022 Seattle case concerned a defamation suit brought by Project Veritas against Stanford University and the University of Washington. The claim was based on a blog post by the Election Integrity Partnership, a nonpartisan group of researchers, which questioned Project Veritas’ report of ‘ballot harvesting’ in Minnesota. A federal judge in Seattle, Judge Thomas S. Tilly, granted dismissal under UPEPA to Stanford, but held that UPEPA statutory relief was not available to the University of Washington, the state’s flagship university, as the statute does not protect governmental units acting or purporting to act in an official capacity. Instead, UW was granted dismissal under federal law. The court held that the phrases of the blog post which Project Veritas challenged as defamatory were ‘nonactionable opinions’.
One important issue raised in the case is the applicability of UPEPA and other anti-SLAPP legislation in the federal courts. The District Court held that UPEPA did apply because the U.S. Court of Appeals for the Ninth Circuit has already held that anti-SLAPP legislation is applicable in federal diversity actions within the Ninth Circuit. However, federal appeals courts have been split on whether and to what extent provisions of state anti-SLAPP laws should be applied by federal courts sitting in diversity, as discussed in the American Bar Association’s Communications Laywer newsletter.
US Dominion, Inc. v Byrne, No. 1:21-cv-02131 (D.D.C. Apr. 20, 2022). The U.S. District Court for the District of Columbia held that a businessman who retweeted a story alleging that Dominion Voting System’s voting machines had been hacked during the 2020 presidential election was not protected by Section 230 of the Communications Decency Act because he had added the words ‘I vouch for this’ to his retweet. The Court held that while Section 230 ‘may provide immunity for someone who merely shares a link on Twitter,” the provision “does not immunize someone for making additional remarks that are allegedly defamatory”.
There is growing concern that social media platforms’ content moderation policies may be violating users’ free speech rights. In 2022, individuals brought a number of claims against social media platforms, including Twitter, which allege that the platforms’ content moderation is equivalent to state action and, therefore, is subject to First Amendment constraints. The U.S. District Court for the Northern District of California dismissed three lawsuits which alleged that Twitter’s content moderation equated to coerced state action or to joint government action and was subject to First Amendment constraints. In all three cases, the Court held that social media platforms like Twitter are not state actors. The American Bar Association’s Communications Lawyer newsletter has an in-depth review of the cases and the future of free speech on digital platforms.
Other media and information law news
In August 2022, the Office of Foreign Assets Control (‘OFAC’) sanctioned Tornado Cash, a virtual currency ‘mixer’ which makes it more difficult to trace cryptocurrency transactions. The platform is not owned by a human-controlled company. Rather, as Lawfare contributors Henry Farrell and Bruce Schneier explain, it is a series of ‘smart contracts’, that is, ‘self-executing code which exists only as software’. Critics of the sanctions have expressed concerns that the sanctions infringe on the established precedent in Bernstein v U.S. Department of State, 945 F. Supp. 1279 (N.D. Cal. 1996) that code is speech and protected by the First Amendment. OFAC’s actions are likely to have implications for how other decentralized autonomous organizations (‘DAOs’) are treated in the future. Lawfare contributors debate whether DAOs should be defended on the grounds of free speech or not.
The California State Senate approved SB-1149, the “Public Right to Know Act” of 2022, in May 2022. If signed into law, the bill would prohibit settlement agreements which restrict the disclosure of information about a defective product or environmental hazard that poses a threat to public health and safety.
Catherine Arnold, is a future trainee at Matrix Chambers with an interest in media and information law.
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