The 5th U.S. Circuit Court of Appeals should deny a late-filed motion to intervene in Netchoice v. Paxton, said Netchoice in an opposition filing Monday. The motion was filed earlier this month by pro se intervenor Leonid Goldstein, who argues that Texas Attorney General Ken Paxton’s case doesn’t represent Goldstein and that the court should issue its mandate upholding Texas’s social media law. The mandate has been stayed pending Netchoice petitioning the U.S. Supreme Court for a writ of certiorari in the case, but Goldstein said the mandate should be issued urgently to prevent social media platforms from suppressing “life saving medical information, including effective treatments for COVID-19. Most such treatments are based on ivermectin and hydroxychloroquine.” The motion also says the platforms are state actors that suppress speech and that Netchoice didn’t have standing to bring the case. Intervenor filings on appeals are commonly held to a high standard that Goldstein hasn’t met, Netchoice said Monday. Goldstein isn’t a proper party to the litigation, raises “meritless” arguments, and could have sought to intervene earlier in the case and didn’t do so, Netchoice said. Goldstein’s motion “does not provide any reason -- let alone an ‘imperative’ one -- to intervene and disrupt the status quo while orderly appellate review of HB20’s constitutionality continues at the U.S. Supreme Court,” said Netchoice.

Monday’s Supreme Court denial of Arizona GOP Chair Kelli Ward’s application for a stay and injunction blocking enforcement of the House Jan. 6 committee’s subpoena won’t necessarily mean the immediate release of Ward’s T-Mobile phone records to committee investigators. T-Mobile said in a Nov. 8 letter that if SCOTUS denied Ward’s application, it would then ask the 9th Circuit U.S. Court of Appeals to remand the case to the U.S. District Court for Arizona for the “limited purpose” of granting T-Mobile’s request for clarification of the subpoena’s scope. If remanded, the district court would “clarify that T-Mobile shall produce the records listed” in the subpoena, “whether patient or non-patient numbers,” said an order signed Nov. 4 by U.S. District Judge Diane Humetewa in Phoenix. Ward, a practicing physician, said she fought the subpoena on constitutional grounds but also to safeguard doctor-patient privilege.

Supreme Court Chief Justice John Roberts granted Dish Network designated entities Northstar Wireless and SNR Wireless until Dec. 16 to file a cert petition, per a notation Monday in SCOTUS docket 22A401. Northstar counsel Paul Clement of Clement & Murphy requested the extension to better familiarize himself with the case. Northstar and SNR are challenging the U.S. Court of Appeals for the D.C. Circuit's upholding the FCC's denial of AWS-3 auction bidding credits for the DEs (see 2206210065). "It is difficult to imagine a regime less consistent with due process or basic principles of administrative law," said Clement in the filing. "Yet the D.C. Circuit saw nothing wrong with the FCC’s behavior, or with the fact that Northstar is now on the hook for nine-figure penalties for failing to comply with amorphous standards that have survived scrutiny thus far only because the agency has always worked with applicants to cure any shortcomings between the applicants’ front-end guess of what the agency wants and the agency’s back-end, totality-of-the-circumstance determination."

When the Supreme Court takes up two related Communications Decency Act Section 230 cases this term, “the questions will be difficult and the stakes enormous,” said Miller Nash partner Robert Cumbow in an analysis Monday. Many over the past quarter century have credited Section 230 “with enabling the internet to grow and flourish,” said Cumbow. But others say that “reconsideration of the reach of Section 230 is long overdue,” he said. Legal experts told us earlier this month that SCOTUS will almost undoubtedly recast or cut back the broad immunity that interactive online platforms enjoy via the Section 230 liability shield (see 2210110030). Cumbow said that waiting in the wings is the pending 4th U.S. Circuit Court of Appeals case of Hepp v. Facebook, in which a misappropriated photograph of Philadelphia news anchor Karen Hepp found its way into numerous ads that appeared on Facebook and other online platforms, promoting such products as dating services and sexual performance enhancement. Plaintiff Hepp claims Facebook “is liable for violating her publicity rights because Section 230 expressly excludes intellectual property claims,” he said. Many states, including Hepp’s home state of Pennsylvania, “regard publicity rights as intellectual property, leading the Fourth Circuit to hold that Facebook is not shielded from Hepp’s claims” via Section 230, he said. Hepp and the two related social media cases all maintain that under the current interpretation of Section 230 they “will have no redress for wrongs committed against them and perpetuated by the companies that control web platforms,” said Cumbow.

The Supreme Court should either consider whether provisions of Florida’s disputed social media law are preempted by Section 230 or vacate the decision of the 11th U.S. Circuit Court of Appeals with the directive to consider whether the law is preempted, said an amicus brief from Reynaldo Gonzalez and Mehier Taamneh posted in docket 22-277 on a writ of certiorari for Moody v. NetChoice Monday. The amici are plaintiffs in cases against Google and Twitter over the murder of their relatives by ISIS, which they say was caused in part by content hosted on tech platforms. Florida’s social media law would limit the ability of social media companies “to remove, or refuse to recommend, posted material likely to incite terrorism or violence,” the brief said. A separate brief from public interest law firm Freedom X on behalf of Florida argues that removing speech isn’t protected by the First Amendment. SCOTUS should grant cert and “maintain the longstanding distinction between adding speech and subtracting it,” said Freedom X.

Outside counsel to Google consented to the filing of amicus briefs at the Supreme Court in Reynaldo Gonzalez v. Google, said the lawyer's letter Tuesday in docket 21-1333. The case is one of two related appeals of appellate court decisions on social media companies' legal protections in which SCOTUS granted certiorari Oct. 3 (see 2210110030). The petitioner is the estate of Nohemi Gonzalez, a U.S. citizen who was killed in ISIS attacks in 2015. The petitioner asked SCOTUS to revisit the 9th Circuit's holding that the Communications Decency Act's Section 230 protects YouTube's algorithm for recommending videos.

The Supreme Court should review a lawsuit against Florida’s social media content moderation law to determine whether platforms can be regulated as common carriers, the Center for Constitutional Jurisprudence (CCJ) said Monday in a brief supporting Florida in docket 21-12355 (see 2210110030). Florida asked the high court to reverse an 11th U.S. Circuit Court of Appeals decision that a state law’s social moderation limits are likely unconstitutional. NetChoice and the Computer and Communications Industry Association are challenging Florida’s law as a First Amendment violation. CCJ, which files briefs on behalf of the conservative Claremont Institute, cited Justice Clarence Thomas’ suggestion that the high court should consider “its line of cases upholding regulation of ‘common carriers’ in reviewing regulation of social media platforms.” CCJ noted the concept of common carrier has evolved to include the use of roads, telephones and the telegraph. Social media platforms don’t transport goods, but they transmit communication like a phone or telegraph, said CCJ. If platforms are determined to be common carriers, content neutral, must-carry regulations like those in Florida wouldn’t violate the First Amendment so long as they “further an important interest unrelated to the suppression of speech,” CCJ said. The court should review how social media regulation fits into existing First Amendment precedent, said CCJ.