Senate Judiciary Committee members pressed Supreme Court nominee Ketanji Brown Jackson Tuesday and Wednesday on how the top court should interpret First Amendment, privacy and child porn statutes to reflect cases involving social media and other technologies. Jackson said during Senate Judiciary’s Tuesday confirmation hearing Congress generally can’t institute government regulation “along viewpoint lines,” calling into question proposals to condition Communications Decency Act Section 230 immunity on online public forums not discriminating against certain viewpoints (see 2203220064).
Government regulation “along viewpoint lines” is “generally impermissible” under the First Amendment, Supreme Court nominee Ketanji Brown Jackson told the Senate Judiciary Committee on Tuesday (see 2203210067). Sen. Mike Lee, R-Utah, asked Jackson if it’s within Congress’ authority to condition Communications Decency Act Section 230 immunity on online public forums not discriminating against certain viewpoints. “I can’t comment on a particular issue” about whether it’s constitutional, she said. The criteria depend on whether the government is seeking to regulate along viewpoint lines, which is “generally impermissible” under the First Amendment, she said. Concerning antitrust law, there’s a lot of precedent for the Supreme Court to consider, Jackson told Sen. Amy Klobuchar, D-Minn. Antitrust laws protect competition, consumers, competitors and the economy, and the Sherman and Clayton acts have broad protections, said Jackson. If confirmed, she said, she would look at precedent to ensure legislation is interpreted to reflect Congress’ intent. The text of the statute is what the court uses to interpret, Jackson said. Tech and telecom issues largely didn’t come up during Jackson’s second confirmation hearing of the week.
Tech and telecom legal issues didn’t factor into Supreme Court nominee Ketanji Brown Jackson’s first day of confirmation hearings Monday, which consisted entirely of opening statements from the nominee, panel members and others. Senate Judiciary member Marsha Blackburn, R-Tenn., previewed plans Sunday to ask Jackson about her views on “constitutionally unsound” high court rulings, including the 1965 Griswold v. Connecticut ruling that’s widely viewed as the legal basis for many U.S. privacy cases. Judiciary members may ask Jackson about her views on Communications Decency Act Section 230 amid continued lawmaker interest in revamping the statute’s liability shield. The issue came up during now-Justice Amy Coney Barrett’s 2020 confirmation hearings (see 2010140064). Other potential matters for discussion could include tech-focused antitrust issues and administrative law, given Jackson’s past rulings on the Administrative Procedure Act and the Chevron doctrine (see 2202250057).
A Tennessee bill to regulate social media as common carriers cleared the House Business and Utilities Subcommittee in a voice vote Wednesday. The bill, which goes next to the Commerce Committee, would authorize the Tennessee Public Utilities Commission to probe and fine social websites for “intentionally deplatforming or shadow banning a user … if the basis of such action is rooted in political ideology, viewpoint discrimination, personal animus, or discrimination because of race, creed, color, religion, sex, age, or national origin,” said a HB-2369 summary. The bill responds to outrage from constituents banned by Big Tech, said sponsor Rep. Dennis Powers (R). Websites are censoring misinformation even though Section 230 of the Communications Decency Act restricts only obscene, lewd, filthy, excessively violent, harassing or objectionable things, said Rep. Jason Zachary (R): “Misinformation is not part of that.” Treating sites as common carriers is a good way to keep the bill from running into legal trouble faced by similar Texas and Florida laws, he said. Some members raised concerns. Rep. Dwayne Thompson (D) said he doesn’t like the government stepping on private businesses. Rep. Patsy Hazlewood (R) appreciates the goal but worries about ceding so much control to the PUC and allowing the agency to levy large fines, she said. The Senate Commerce Committee cleared companion bill SB-2161 Tuesday (see 2203160053).
News Media Alliance (NMA) President David Chavern is “optimistic” about the future of the proposed Journalism Competition Protection Act and favors changing Communications Decency Act Section 230 to reduce liability protections for tech companies, he told the Media Institute at the group’s virtual luncheon Wednesday. “We’re responsible for the decisions we make; the platforms are responsible for the decision they made,” Chavern said.
The Center for Democracy & Technology names George Slover, ex-Consumer Reports, general counsel and senior counsel-competition policy … Semiconductor Industry Association hires Rina Pal-Goetzen, ex-3D printed microTec, as director-global policy … Consumer Federation of America announces Erin Witte, former Virginia assistant attorney general, as director-consumer protection, replacing Susan Grant, who becomes senior fellow.
NTCA Director-Government Affairs Adam Jorde says he’s moving to Twilio as lead-government affairs, communications policy … State Senate confirms Ann Rendahl as commissioner-Washington Utilities and Transportation Commission for second six-year term ending Jan. 1, 2027 …Intelsat names Raytheon’s David Wajsgras as its next CEO, effective April 4, succeeding Stephen Spengler, who announced his planned retirement in October ... Analog Devices taps Intel’s Gregory Bryant for newly created roles as executive vice president and president-business units, effective March 14, with oversight for industrial, automotive, communications, digital healthcare and consumer segments.
The Supreme Court should review the “proper scope” of Communications Decency Act Section 230 immunity, Justice Clarence Thomas said Monday as the high court declined to review a Facebook-related sex-trafficking case. “Assuming Congress does not step in to clarify §230’s scope, we should do so in an appropriate case,” he wrote in a statement accompanying the denial of certiorari in Jane Doe v. Facebook. The case stems from a lawsuit a Facebook user filed against the platform. The plaintiff, listed as Jane Doe, was a minor when she received a friend request from an adult user, and was then lured into meeting up in person, raped, beaten and forced into sex trafficking in 2012, according to filings. The Supreme Court shouldn’t review Section 230 in this case because there are outstanding legal questions for the Texas Supreme Court, Thomas said.
Oral argument in the tech industry’s lawsuit against a Texas social media law will help the 5th U.S. Circuit Court of Appeals understand how online platforms interact with the First Amendment and whether private companies have the right to “discriminate against speakers,” Texas Attorney General Ken Paxton (R) filed Wednesday in docket 21-51178. Platforms are incorrect that the First Amendment “gives them a right to discriminate freely against viewpoints, without any sunlight,” Paxton argued. It would “strain credulity to say Section 230 protects Platforms when they censor speakers based on race,” he wrote. “Likewise here, Section 230 does not protect them for censoring based on speaker viewpoint.” He also disagreed with claims the new law violates the First Amendment: Laws requiring entities to neutrally host speakers don’t implicate the First Amendment because such laws regulate platform conduct, not speech, he said.
Democratic FCC nominee Gigi Sohn and FTC nominee Alvaro Bedoya cleared an initial confirmation hurdle Thursday after the Senate Commerce Committee voted 14-14 on both picks, but they still face a long road to floor approval, said lawmakers and other officials in interviews. Panel Democrats uniformly backed Sohn and Bedoya, but all Republicans opposed them. Six of the 14 Republicans attended the executive session, fulfilling expectations they wouldn’t boycott the meeting (see 2203020076). The committee also tied 14-14 on Consumer Product Safety Commission nominee Mary Boyle. It advanced National Institute of Standards and Technology director nominee Laurie Locascio and International Trade Administration nominee Grant Harris on voice votes.