Internet platforms enjoy “enormous power over public discourse,” and Florida’s social media law, SB-7072, is “aimed at preventing the platforms from misusing that power,” said the Florida attorney general's U.S. Supreme Court brief Tuesday (docket 22-227) seeking to reverse the 11th Circuit's decision to facially invalidate SB-7072's neutrality and hosting provisions and its individualized-disclosure requirement.
The X platform is appealing to the 9th U.S. Circuit Appeals Court the Dec. 28 denial of its motion for a preliminary injunction to block California Attorney General Rob Bonta (D) from enforcing AB-587, the state’s social media transparency law (see 2401020002), said its notice of appeal Friday (docket 2:23-cv-01939) in U.S. District Court for Eastern California in Sacramento. X sought to block AB-587's enforcement on grounds that it violates the First Amendment and that federal law preempts it. Denial of the injunction turned on X’s failure to establish its likelihood of success on the merits, said the memorandum and order signed by U.S. District Judge William Shubb.
U.S. District Judge Terry Doughty for Western Louisiana in Monroe denied social media personality Jason Goodman's Jan. 3 motion to intervene in Robert F. Kennedy Jr.’s social media censorship case against officials from the Biden administration, said Doughty’s signed order Wednesday (docket 3:23-cv-00381). Goodman alleges that he, like Kennedy and his co-plaintiffs, Children’s Health Defense and Connie Sampognaro, is a victim of First Amendment speech suppression. He had asked to intervene by intervention of right or by permissive intervention because he brings specific facts that the current parties in Kennedy v. Biden are unaware of. But there are no allegations or evidence “to show that Goodman’s interest would be inadequately represented by the existing parties in the suit,” said Doughty’s order. Goodman’s allegations “align” with those of Kennedy and his co-plaintiffs, and Goodman hasn’t “overcome the presumption of adequate representation,” it said. District courts “have broad discretion in allowing intervention,” said the order. But if the court were to allow Goodman to intervene, “it would open the door for other alleged victims to intervene, which would likely slow down the expedited discovery schedule previously set,” it said.
Two FCC commissioners say social media companies' embrace of U.S. Supreme Court precedent is misplaced when it comes to their arguments in the challenges before SCOTUS of Texas and Florida social media laws (see 2309290020) that such platforms have a First Amendment right to censor users' speech. Writing last week in the Yale Journal on Regulation, Commissioners Brendan Carr and Nathan Simington said SCOTUS has never held that the First Amendment gives dominant companies like big social media "a freewheeling right to censor others’ speech." Pointing to such SCOTUS precedent as its Turner decision, requiring cable systems to carry broadcast TV channels, the Republican commissioners said the high court has allowed the government to apply anti-discrimination requirements to corporations in ways consistent with the First Amendment. The commissioners said social media regulations like Texas' House Bill 20 "are easily distinguished" from regulations struck down on First Amendment grounds in decisions such as Tornillo, which involved a Florida law requiring newspapers to run partisan editorial content. "Indeed, HB20 touches none of the First Amendment third rails that were at play in those cases," they said. When considering such issues as market power and the degree to which the regulated entity makes individualized decisions about speech rather than being a common carrier of speech, "it is clear that the government can, in the appropriate case, apply anti-discrimination rules to social media platforms," they said. "Texas’s HB20 is one of those cases."
NetChoice responded obliquely to comments Tuesday by Ohio Lt. Gov. Jon Husted (R) criticizing the court’s decision granting NetChoice’s motion for a temporary restraining order to block enforcement of the state’s social media law when it takes effect Monday (see 2401090062). Husted said the Big Tech companies behind the NetChoice lawsuit were "disingenuous participants" in the legislative process during the run-up to the statute’s enactment and have "no interest in protecting children." Chris Marchese, director of NetChoice’s Litigation Center, emailed in reply: “Protecting Americans’ constitutional rights requires courage. We will continue to do that.”
The 2nd U.S. Circuit Appeals Court scheduled oral argument for Feb. 16 at 10 a.m. in New York Attorney General Letitia James' (D) appeal to reverse the district court’s preliminary injunction that blocks her from enforcing Section 394-ccc, New York’s hateful conduct law, said a hearing notice Monday (docket 23-356). Each side will be apportioned 10 minutes for oral argument, said the notice. Section 394-ccc requires social media networks to give users a mechanism for reporting hateful conduct on the network (see 2310160001). To better inform users who wish to make use of a network’s report mechanism, the law also requires networks to disclose a policy explaining how the network will respond to user reports, it said. Three online platforms are challenging Section 394-ccc on grounds that the statute’s requirements infringe their First Amendment rights.
Here are Communications Litigation Today's top stories from last week, in case you missed them. Each can be found by searching on its title or by clicking on the hyperlinked reference number.
NetChoice hailed Tuesday’s decision in Columbus, Ohio, granting its motion for a temporary restraining order to block Ohio Attorney General Dave Yost (R) from enforcing the state’s Parental Notification by Social Media Operators Act when it takes effect Jan. 15 (see 2401050055).
Online services “have a well-established First Amendment right to host, curate and share content as they see fit,” emailed Chris Marchese, director of the NetChoice Litigation Center, in response to the U.S. Supreme Court scheduling Feb. 26 oral argument in the NetChoice and Computer & Communications Industry Association tandem First Amendment challenges to the Florida and Texas social media content moderation laws (see 2401050031). The internet “is a vital platform for free expression, and it must remain free from government censorship,” said Marchese Friday. NetChoice is "confident" that SCOTUS will agree, he said.
U.S. District Judge Algenon Marbley for Southern Ohio in Columbus granted NetChoice’s motion for a temporary restraining order blocking Ohio Attorney General Dave Yost (R) from enforcing the state’s Parental Notification by Social Media Operators Act when it takes effect Jan. 15, said the judge’s signed opinion and order Tuesday (docket 2:24-cv-00047).