A 5th U.S. Circuit Court of Appeals ruling last week against the SEC could have implications for FCC enforcement actions and the powers of administrative law judges like the FCC’s ALJ Jane Halprin, but it is too early to be sure how the ruling against the SEC applies to other agencies, said academics and communications attorneys in interviews. Based on that Jarkesy v. SEC decision, U.S. Supreme Court rulings and a pair of cases currently before SCOTUS, the outlook for ALJs at federal agencies -- including the FCC -- “looks a little shaky,” said Jeffrey Lubbers, an administrative law professor at American University. “I’d be surprised if this decision is the final word,” said former FCC General Counsel Tom Johnson, now with Wiley.
Section 230
MindGeek and its streaming video services like Pornhub had no role in posting sexually explicit videos of a then-underage girl, and merely providing an online platform that can be used for unlawful purposes isn't illegal or actionable, MindGeek said Monday in a motion to dismiss (docket 2:21-cv-04920) filed with the U.S. District Court in Los Angeles. Suing MindGeek and its executives is the woman who was subject of those videos as well as nearly three dozen Jane Doe plaintiffs alleging videos of their abuse or trafficking when they were juveniles were posted to MindGeek sites. MindGeek said the suit also is barred by Section 230 of the Communications Decency Act. Counsel for the plaintiff didn't comment Tuesday.
The Supreme Court might be showing interest in tech groups’ emergency appeal of a 5th U.S. Circuit Court of Appeals order allowing a Texas social media law to be enforced, said court watchers this week. Texas responded Wednesday to NetChoice and Computer and Communications Industry Association, as requested by Justice Samuel Alito (see 2205160030).
The Supreme Court shouldn’t allow Texas’ social media law to be enforced, former Rep. Chris Cox, R-Calif., wrote the high court Tuesday in case 21A720 (see 2205160030). The Supreme Court should preserve the status quo and vacate the 5th U.S. Circuit Court of Appeals’ order allowing the state’s social media law to be enforced, argued Cox, who co-wrote Communications Decency Act Section 230 with then-Rep. Ron Wyden, D-Ore. By requiring all viewpoints to be treated the same, Texas’ new law would “expose platforms to liability for moderating such loathsome content as racist diatribes, Nazi screeds, holocaust-denial misinformation, and foreign government propaganda,” Cox wrote in support of NetChoice and the Computer and Communications Industry Association. The associations filed an emergency application for immediate administrative relief with the high court.
Efforts to build infrastructure for 5G are starting to hit a “stall speed” due to a lack of support for the FCC from the White House, said Commissioner Brendan Carr Tuesday in an interview on the Ruthless Podcast. Carr said the Biden administration hasn’t supported the FCC in spectrum battles with other federal agencies the way the Trump administration did. Carr also urged Section 230 reform, which he said is opposed by “media gatekeepers.” He said he’s “hopeful” about Elon Musk’s possible purchase of Twitter but said laws also are needed. Carr said he doesn’t know if there was evidence of Twitter suppressing conservatives on social media, but he wouldn’t be surprised if there was “a run on shredder trucks and burn bags” in Silicon Valley. The biggest challenge now facing the FCC is the specter of waste, fraud and abuse of the recent wave of federal infrastructure funds, Carr said. “I’m really worried we’re going to see billions of dollars wasted,” he said.
A 5th U.S. Circuit Court of Appeals panel debated whether social media platforms more closely align with common carriers or with newspapers and broadcasters in a case that could have major implications for internet speech (see 2204040039). Judges were skeptical of arguments from both the tech industry and Texas during oral argument Monday in New Orleans.
The California Assembly’s Judiciary Committee unanimously passed legislation Tuesday to make social media platforms liable for addiction- and design-related harm to children. AB-2408 would impose penalties on major social media platforms for negligent design.
A looser content moderation approach at Twitter under Elon Musk's ownership risks turning it into a fringe, extremist platform like 4chan, House Judiciary Committee Chairman Jerry Nadler, D-N.Y., told us Thursday. “I’m concerned with what he’s rumored or said to believe” in terms of moderation, said Nadler: “That means you’re going to have all this disinformation on Twitter that wouldn’t have been previously allowed. That would concern me.” The Judiciary Committee will have to “wait and see” whether action is necessary, he said.
An eleventh-hour amendment won’t help Florida overcome constitutional problems with its law making it illegal for social media sites to deplatform political candidates and requiring them to be transparent about policing, and could even help tech industry challengers' case, opponents of the law said Monday.
Digital equity advocates and lawmakers want bigger efforts to bridge the digital divide, they said Tuesday. Some at the Hispanic Technology & Telecommunications Partnership’s virtual digital inclusion summit said digital discrimination is a top priority. Others encouraged local leaders to promote the FCC’s affordable connectivity program.