The 5th U.S. Circuit Court of Appeals on Thursday remanded the tech industry’s lawsuit against Texas’ social media law (see 2409260062). A three-judge panel agreed with the U.S. Supreme Court that the “record is underdeveloped,” and said the lower court must answer key questions about application of HB-20. Given NetChoice and the Computer & Communications Industry Association filed a facial challenge against all applications of the law, they have the burden of developing a “factual record” to support that request, said Thursday's opinion. Judges Edith Jones, Leslie Southwick and Andrew Oldham heard oral argument in May 2022 (see 2205090061). “Plaintiffs have not yet developed that record or proved their claims,” the court said. “Therefore, the cause is remanded for further proceedings consistent with this opinion.” The ruling lists a number of outstanding questions about whom HB-20 covers, how companies must moderate content and the impact on free expression. “Because these are fact-intensive questions that must be answered by the district court in the first instance after thorough discovery, we remand.” The panel said it expects the district court to also “thoroughly” address questions about Section 230 of the Communications Decency Act and Texas’ argument that the tech industry’s position on free speech is inconsistent with its views on the liability shield. The Supreme Court remanded the case to the 5th Circuit in July (see 2407010053). CCIA Chief of Staff Stephanie Joyce said in a statement: "CCIA looks forward to further proving in court that Texas HB20 violates the First Amendment." The office for Texas Attorney General Ken Paxton (R) didn’t comment.
Republican FCC Commissioner Brendan Carr, an overwhelming favorite to become chairman when President-elect Donald Trump returns to office Jan. 20 (see 2411060042), said Thursday the FCC should stand down from working on controversial matters during the transition from President Joe Biden to Trump’s second term. House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., sent FCC Chairwoman Jessica Rosenworcel a “pencils down” letter Wednesday (see 2411060043). Senate Republicans will likely send Rosenworcel similar demands soon.
Digital First Project Executive Director Nathan Leamer on Wednesday said whoever chairs the FCC during the next administration should take on a more forceful role in advocating for Congress to renew the commission’s lapsed spectrum auction authority. Leamer, who served as an aide to former FCC Chairman Ajit Pai, said during a Georgetown University Center for Business and Public Policy webcast that whichever party wins the White House Nov. 5 will reexamine broadband affordability issues. He believes the FCC will have to brace for the impact of potential federal court rulings striking down its recent orders reclassifying broadband as a Communications Act Title II service and instituting anti-digital discrimination rules.
Dealing with false or malevolent online misinformation that can spur violence means taking "a meaningful precaution" that nonetheless still allows free expression, Brian Leiter, director-University of Chicago's Center for Law, Philosophy and Human Values, wrote this week in the Journal of Free Speech Law. Regulators could be empowered to close particular sites such as Google, Facebook and YouTube temporarily during emergencies, he said. But a better approach might be reducing the number of sites that offer incitement, though that "would require a significant change to First Amendment jurisprudence in the United States, which is particularly permissive." Online sites also should be subject to tortious liability for harm that a reasonable person would see as a foreseeable consequence of speech they knew or should have known was false, he said. The Communications Decency Act's Section 230 is a large obstacle to legal remedies for harmful online misinformation, and its protections for websites should be revoked, Leiter said. "The idea that website owners get a free pass on hosting tortious wrongdoing, but not on hosting copyright violations, is prima facie bizarre."
Meta, Google, TikTok and Snapchat must defend themselves against claims that their platforms are designed to “foster compulsive use by minors,” the U.S. District Court for the Northern District of California ruled Tuesday (docket 4:22-md-03047-YGR). Judge Yvonne Gonzalez Rogers ruled on hundreds of consolidated legal claims filed on behalf of children, school districts, local governments and state attorneys general. The ruling covered lawsuits from 35 different states, including California, New York, Georgia and Florida. Rogers “generally denied” the companies’ motions to dismiss but limited many claims' scope. “Much of the States’ consumer protection claims are cognizable,” she said. “Meta’s alleged yearslong public campaign of deception as to the risks of addiction and mental harms to minors from platform use fits readily within these states’ deceptive acts and practices framework.” However, she noted Communications Decency Act Section 230 provides a “fairly significant limitation on these claims.” Section 230 also protects against “personal injury plaintiffs’ consumer-protection, concealment, and misrepresentation theories,” she said. Rogers declined to dismiss “theories of liability predicated on a failure-to-warn of known risks of addiction attendant to any platform features or as to platform construction in general,” including claims against YouTube, Snap and TikTok. The companies didn’t comment.
The 3rd U.S. Circuit Court of Appeals should grant TikTok's request for a full-court review of a three-judge panel’s decision that Section 230 doesn’t protect its algorithmic recommendations (see 2408280014) (docket 22-3061), tech associations said in an amicus brief filed Tuesday. Signees included CTA, the Computer & Communications Industry Association, NetChoice, TechNet and the Software & Information Industry Association. Chamber of Progress, Engine and the Interactive Advertising Bureau also signed. TechFreedom signed a separate amicus brief supporting TikTok. The three-judge panel remanded a district court decision dismissing a lawsuit from the mother of a 10-year-old TikTok user who unintentionally hanged herself after watching a “Blackout Challenge” video on the platform. The platform can’t claim Communications Decency Act Section 230 immunity from liability when its content harms users, the panel found. That decision threatens the internet “as we know it,” the associations said in their filing: It jeopardizes platforms’ ability to “disseminate user-created speech and the public’s ability to communication online.” TechFreedom Appellate Litigation Director Corbin Barthold said the panel wrongly concluded that “because recommendations are a website’s own First Amendment-protected expression, they fall outside Section 230’s liability shield. A website’s decision simply to host a third party’s speech at all is also First Amendment-protected expression. By the panel’s misguided logic, Section 230’s key provision -- Section 230(c)(1) -- is a nullity; it protects nothing.”
Federal and state legislators should take a light-touch regulatory approach to AI because there are unsettled questions about free speech and innovation potential, a Trump-appointed trade judge, a religious group and tech-minded scholars said Tuesday.
The 5th U.S. Circuit Court of Appeals should lift a district court injunction against Texas’ social media law and remand the case to assess the tech industry’s First Amendment challenge at a more granular level, Texas Attorney General Ken Paxton (R) argued Wednesday (docket 21-51178).
Statutory language in the 1991 Telephone Consumer Protection Act allowed the FCC to act against those responsible for illegal voice-cloning in the New Hampshire presidential primary election (see 2408210039), Chairwoman Jessica Rosenworcel said Wednesday.
Agreeing with X’s First Amendment arguments, the 9th U.S. Circuit Court of Appeals supported blocking a California law requiring social media companies to provide the state with semiannual disclosures of their content-moderation policies. In a Wednesday opinion, the appeals court reversed a U.S. District Court for Eastern California decision to deny X’s request for a preliminary injunction to block enforcement of AB-587. The 9th Circuit remanded to the district court with instructions to enter a preliminary injunction against the reporting requirement and to determine if other challenged provisions should also be enjoined. X is likely to succeed on the merits of its claim that the reporting requirement facially violates the First Amendment, found a 9th Circuit panel including Judges Milan Smith, Mark Bennett and Anthony Johnstone. The disclosure requirements “likely compel non-commercial speech and are subject to strict scrutiny, under which they do not survive,” Smith wrote (case 24-271). Because the court is reversing based on free-speech grounds, it needn’t address X's arguments that Section 230 of the Communications Decency Act preempts the law, the judge said. X and California AG Rob Bonta (D) didn’t comment by our deadline.