Platforms aren’t common carriers, commenters argued last week in amici briefs before the 5th U.S. Circuit Court of Appeals, siding with the tech industry in a lawsuit against Texas’ social media law in case 21-51178 (see 2204080019). Carriers such as phone utilities are "fundamentally different" from platforms “because they facilitate private communications, while platforms exist for the purpose of publishing users’ speech,” wrote Chris Cox, a former member of Congress from California (R) who co-wrote Section 230 (see 2009020064): There’s no reason to believe telecoms endorse or are even aware of conversations they carry, but platforms can’t avoid being linked to the content they publish, he said. Section 230’s liability shield doesn’t remove a platform’s First Amendment right to choose the content of its own message, he said. By trying to stop censoring of conservative views, Texas “adopted a progressive legal theory to impose its own form of internet censorship,” wrote the Cato Institute: The state’s arguments are “fundamentally at odds with the core First Amendment values of a free speech marketplace.” Social media platforms aren’t common carriers but do have a right to editorial discretion, it said. The First Amendment bars the government from “imposing its preferred editorial viewpoint, even a notionally neutral one, on private publishers,” Reporters Committee for Freedom of the Press argued. The new law would allow Texas to impose editorial judgment “not only on the new forms of digital media it targets now, but also on traditional news publishers.” If allowed, the Texas law “will impinge on the critical statutory and constitutional rights all Internet platforms and speakers depend on,” said the Copia Institute, think tank arm of Techdirt publisher Floor64. “Rather than advancing online expression, this law will only suppress it, both through its own direct terms and by opening the door to similar legislation from other states to finish crushing what online platforms and expression are left.”
Section 230
The Senate Commerce Committee is considering marking up a Section 230-related bill from Senate Minority Whip John Thune, R-S.D., and Sen. Brian Schatz, D-Hawaii, Thune told us Wednesday. Thune and Schatz introduced the Platform Accountability and Consumer Transparency (Pact) Act (see 2103170058) in 2020. “I’ve been told by some of the leading Dems that we think we’re going to get a markup on it, but I don’t know that it’s been confirmed,” Thune told us Wednesday. Schatz said he “heard things. ... You should keep your eyes open. Just look for hearing notices, etc.”
Former House Commerce Committee Chairman Fred Upton, R-Mich., said Tuesday he won't seek reelection this year. He’s the 11th Commerce member to announce plans to leave the House either for retirement or to seek another office. Others include Communications Subcommittee Chairman Mike Doyle, D-Pa. (see 2111120002). Upton has been active in Commerce Republicans’ work on legislation to revamp Communications Decency Act Section 230 (see 2107280069) and other bills aimed at reining in major tech companies. He also was among the Republicans urging House Commerce to take up a package of bills aimed at streamlining broadband deployments (see 2006250068). Upton’s “announcement is sad to many, for both Democrats and Republicans alike,” said Commerce ranking member Cathy McMorris Rodgers, R-Wash. NAB and the Wireless Infrastructure Association also praised Upton’s service.
An Ohio bill to regulate social media companies’ alleged censorship of political views remained in committee after its sixth hearing Tuesday. The House Civil Justice Committee heard testimony but didn’t vote on HB-441, which would classify social media platforms as common carriers and allow users to sue platforms for viewpoint discrimination. Ohio Majority Floor Leader Bill Seitz (R) asked why Ohio should make a social media law when similar, court-blocked laws in Texas and Florida are pending appeal.
A lawsuit claiming Facebook benefited from a user’s image without consent fails to allege the platform had editorial discretion in the third-party advertisement in question, Meta argued Friday in docket 2:19-cv-04034 (see 2203070067). Philadelphia news anchor Karen Hepp sued Facebook in 2018 for running an ad from the dating app FirstMet, which used her image without consent. The U.S. District Court in Philadelphia should dismiss her lawsuit because she doesn’t have a “plausible claim” the platform used her image for commercial or advertising purposes, Meta argued. The case has implications for Communications Decency Act Section 230 (see 2203250048).
There’s renewed focus on the need for Supreme Court interpretation of Communications Decency Act Section 230 after last week’s Supreme Court confirmation hearings for Ketanji Brown Jackson. Legislators and 230 watchers, in interviews, cited the likelihood of active litigation finding its way before the Supreme Court, which hasn't reviewed a Section 230 case.
Supreme Court nominee Ketanji Brown Jackson continued telling lawmakers there are opportunities for judges to reinterpret existing laws to reflect emerging technologies, during her Wednesday confirmation hearing, but said she believes Congress can make it “far easier for judges who are doing their duties to interpret the law” by updating statutes to reflect “modern innovations.” Sen. Alex Padilla, D-Calif., echoed Sen. Jon Ossoff of Georgia and other Democrats in urging Jackson to be cognizant of those technologies as she interprets laws (see 2203230066). Tech and telecom issues didn’t come up during Senate Judiciary’s Thursday hearing on Jackson, which featured witnesses giving outside opinions on Jackson.
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).