Will the Gonzales Section 230 case rule on Justice Thomas’ concerns about content moderation? Stephen Vladeck thinks not. — First Amendment News 367

Next Tuesday the Supreme Court will hear arguments in Gonzalez v. Google. As Amy Howe over at SCOTUSblog has observed, the issue in the case is “whether Section 230 protects internet platforms when their algorithms target users and recommend someone else’s content.” Howe continues:

The case was filed by the family of an American woman killed in a Paris bistro in an ISIS attack in 2015. They brought their lawsuit under the Antiterrorism Act, arguing that Google (which owns YouTube) aided ISIS’s recruitment through YouTube videos – specifically, recommending ISIS videos to users through its algorithms. 

Though divided, the Ninth Circuit held that such recommendations are protected under Section 230 so long as the provider’s algorithm treats all content similarly. “There is no question § 230(c)(1) shelters more activity than Congress envisioned it would,” said Judge Morgan Christen for the majority. But, she added, “Whether social media companies should continue to enjoy immunity for the third-party content they publish, and whether their use of algorithms ought to be regulated, are pressing questions that Congress should address.”

The case has drawn considerable attention in light of Justice Clarence Thomas’ opinion respecting the denial of cert. in Malwarebytes, Inc. v. Enigma Software Group USA (2020), arguing that lower courts interpreted Section 230 too broadly, and his concurrence in a denial of cert. in Biden v. Knight First Amendment Institute (2021), suggesting that platform censorship might raise First Amendment issues.

Were the latter to be true, professor Stephen Vladeck has observed, “Section 230 could provoke difficult constitutional questions insofar as it preempts state laws prohibiting private companies from censoring speech.” In his “One First” blog post on the matter, Vladeck noted:

At the time Thomas wrote those opinions, no state had yet passed such a law. But Florida and Texas have now done so, provoking a direct circuit split between the Fifth and Eleventh Circuits on whether state laws limiting content moderation by social media platforms are themselves constitutional. The Eleventh Circuit said no; the Fifth Circuit said yes, only to have the Supreme Court, by a 5-4 vote, vacate its stay of a district court injunction last May.

As significant as the main issue raised in Gonzales is, Vladeck stressed:

[I]t’s not the question Justice Thomas has been pushing the Court to answer. Thomas’s objections, at least as articulated in his 2020 and 2021 opinions, are about whether section 230 should be understood to immunize specific and intentional content moderation decisions.

More fundamentally, whatever its merits, Justice Thomas’s real objection to the behavior of social media platforms is one far more directly implicated by the Florida and Texas cases, where the question isn’t about any context-specific distinction between publishing and distributing content, but rather more broadly about whether large social media platforms should be thought of as akin to “common carriers” whose content moderation can (and should) be regulated by the federal government and/or the states notwithstanding the First Amendment . . . But that just kicks them down the road to next Term; given the circuit split and the Court’s own prior intervention in the Texas case, a grant of certiorari is virtually inevitable.

Related question as to possible reach of Gonzales opinion: Does ChatGPT qualify for protection under Section 230?

Gov. DeSantis targets Sullivan and its progeny

Ken Bensinger, “DeSantis, Aiming at a Favorite Foil, Wants to Roll Back Press Freedom,” The New York Times (Feb. 10)

When Gov. Ron DeSantis of Florida convened a round-table discussion about the news media this week, he spared no effort to play the part, perching at a faux anchor’s desk in front of a wall of video screens while firing questions to his guests like a seasoned cable TV host.

But the panel’s message was as notable as its slick presentation: Over the course of an hour, Mr. DeSantis and his guests laid out a detailed case for revisiting a landmark Supreme Court decision protecting the press from defamation lawsuits.

Mr. DeSantis is the latest figure, and among the most influential, to join a growing list of Republicans calling on the court to revisit the 1964 ruling, known as The New York Times Company v. Sullivan.

[ . . . ]

“How did it get to be this doctrine that has had really profound effects on society?” he said at the event, which featured two libel lawyers known for suing news organizations and a conservative scholar who recently published an essay titled “Overturn New York Times v. Sullivan.”

Related

• Megyn Kelly, “How Gonzalez vs. Google Before the Supreme Court Could Change Free Speech On the Internet,” The Megyn Kelly Show (Feb. 14)

Gov. DeSantis replaces college president and moves to reshape curriculum 

• Patricia Mazzei, “DeSantis’s Latest Target: A Small College of ‘Free Thinkers’,” The New York Times (Feb. 14)

A plan by Gov. Ron DeSantis to transform New College, which is known as progressive and describes itself as “a community of free thinkers,” into a beacon of conservatism has left students, parents and faculty members at the tight-knit school reeling over what they see as a political assault on their academic freedom. Mr. DeSantis’s education commissioner has expressed a desire to remake the school in the image of Hillsdale College, a small Christian school in Michigan that has been active in conservative politics.

Over 25 tumultuous days last month, the Republican governor removed six of the college’s 13 trustees, replacing them with allies holding strongly conservative views. The new board then forced out the college’s president, a career educator, and named Mr. DeSantis’s former education commissioner, a career politician, as her replacement. On Monday, the board signed off on paying its pick a salary of $699,000 a year, more than double what his predecessor earned.

AI porn and deep fakes

• Tatum Hunter, “AI porn is easy to make now. For women, that’s a nightmare,” The Washington Post (Feb. 13)

Until recently, making realistic AI porn took computer expertise. Now, thanks in part to new, easy-to-use AI tools, anyone with access to images of a victim’s face can create realistic-looking explicit content with an AI-generated body. Incidents of harassment and extortion are likely to rise, abuse experts say, as bad actors use AI models to humiliate targets ranging from celebrities to ex-girlfriends — even children.

Women have few ways to protect themselves, they say, and victims have little recourse.

As of 2019, 96 percent of deepfakes on the internet were pornography, according to an analysis by AI firm DeepTrace Technologies, and virtually all pornographic deepfakes depicted women. The presence of deepfakes has ballooned since then, while the response from law enforcement and educators lags behind, said law professor and online abuse expert Danielle Citron. Only three U.S. states have laws addressing deepfake porn.

“This has been a pervasive problem,” Citron said. “We nonetheless have released new and different [AI] tools without any recognition of the social practices and how it’s going to be used.”

New book on how the internet changed sex

• Samantha Cole, “How Sex Changed the Internet and the Internet Changed Sex: An Unexpected History,” Workman Publishing Co. (2022)

From the moment there was an “online,” there was sex online. The famous test image used by software engineers to develop formats like the jpeg was “Lena,” taken from Playboy’s November 1972 centerfold. Early bulletin boards and multi-user domains quickly came to serve their members’ sexual musings. Facebook started as a way to rate “hot or not” Harvard co-eds. In fact, virtually every significant development that defines the Internet we know and love (and hate) today—privacy issues, online payments and online banking, dating, social media, streaming technology, mass data collection—came out at the meeting of sexuality and technology.

Not only did sexuality vastly influence the internet, but the internet arguably changed modern sexuality by giving every imaginable non-hetereonormative community a safe place to explore, fantasize, thrive, and be accepted. Which of course only led to more exploring, more fantasizing, more thriving.

A lively, highly visual history, filled with broad themes and backstories, pioneering personalities and eureka-moments, How Sex Changed the Internet and the Internet Changed Sex covers everything from Jennicam (remember her?) to deep fakes. And most of what came in between, including “A Brief History of Online Dating” and the promise that VR spaces like the metaverse hold for the future of human sexual interactions.

Porn is just one part of the story. Rather, this is a story about human nature during the digital gold rush of the last fifty years.

On the author: 

Samantha Cole is a senior editor for Motherboard, Vice's science and technology outlet, where she covers sexuality, online culture, platforms, and the adult industry. Her work has also appeared in Popular Science, Fast Company, and Al Jazeera. In 2020, she was nominated for a Writer's Guild Award for best digital news coverage.

Fourth Circuit holds North Carolina criminal libel law ‘most likely unconstitutional’

• Gary D. Robertson, “4th Circuit backs N.C. Attorney General Stein on libel law,” Associated Press (Feb. 13)

A federal appeals court sided again with North Carolina’s attorney general [Josh Stein recently] saying a 1931 libel law is most likely unconstitutional. Josh Stein has sought to block a fellow Democrat from using the law to prosecute him over a 2020 campaign commercial.

In a unanimous result, the three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., agreed with Stein and others associated with his political committee who have been seeking to stop a probe by Wake County District Attorney Lorrin Freeman's office.

Stein announced in January that he's running for governor in 2024.

[ . . . ]

The law makes it a misdemeanor for someone to help circulate “derogatory reports” about a candidate designed to harm their election chances while “knowing such report to be false or in reckless disregard of its truth or falsity.”

• Grimmett v. Freeman (4th Cir. 2023 per Heytens, J.)
• Michael R. Dreeben for Appellants

Debate: Do DEI statements undermine academic freedom?

Professors Brian Leiter and Brian Soucek explore mandatory diversity, equity, and inclusion statements in hiring, promotion, and tenure.

View video

Related 

• Aaron Corpora, “In rare move, Texas Tech rescinds DEI litmus test for faculty. Others aren’t as lucky,” FIRE (Feb. 10)

Carlson on drag show laws

• Kathleen Carlson, “Drag Show Laws,” The First Amendment Encyclopedia (Feb. 2023)

Beginning in 2022, legislators in at least 10 states introduced bills to restrict, in a host of ways, entertainment and performances by female (and male) impersonators, raising First Amendment questions. 

Live entertainment is protected under the First Amendment as a form of free expression. But sponsors of the bills contend the performances are obscene or not appropriate for children.

[ . . . ]

“Drag performances consist of music, dance and theater, all of which have long been considered expression under the First Amendment,” said Marjorie Heins, a First Amendment lawyer and author of “Not in Front of the Children: ‘Indecency,’ Censorship and the Innocence of Youth.”

FIRE’s 10 Worst Colleges for Free Speech

• FIRE, “10 Worst Colleges for Free Speech: 2023,” (Feb. 2023)

Each year, FIRE bestows a special dishonor upon a select group of American colleges that go above and beyond in their efforts to trample expressive freedom. These are the schools that stopped at nothing to crush faculty rights, destroy student expression, and leave guest speakers in the dust. 

For that, we owe them their just reward: A spot on our exclusive “10 Worst Colleges for Free Speech” list. 

Since our inaugural “10 Worst” list in 2011, hundreds of schools have vied — knowingly or not! — for this recognition. This year’s contenders were no exception, sidestepping or shoving aside fundamental rights in both classic and creative ways to secure their place.

They include a Minnesota university that fired an art history professor for teaching art history; a Texas college that repeatedly fired professors for speaking out, despite multiple lawsuits; and a Massachusetts college that went toe-to-toe with a student group for having the nerve to advertise a documentary — about free speech.

• Hamline University (Saint Paul, Minnesota)
• Pennsylvania State University (State College, Pennsylvania)
• Collin College (McKinney, Texas)
• Texas A&M (College Station, Texas)
• University of Pennsylvania (Philadelphia, Pennsylvania)
• Emerson (Boston, Massachusetts)
• Emporia State (Emporia, Kansas)
• Tennessee Tech (Cookeville, Tennessee)
• University of Oregon (Eugene, Oregon)
• Loyola University New Orleans (New Orleans, Louisiana)

New book on HUAC and Yellin v. United States

• Ed Yellin and Jean Fagan Yellin, “In Contempt Defending Free Speech, Defeating HUAC,” University of Michigan Press (2022)

“YOU ARE HEREBY COMMANDED to be and appear before the Committee on Un-American Activities of the House of Representatives of the United States, or a duly appointed subcommittee thereof, on February 10 (Monday), 1958, at ten o’clock a.m. at City Council Chambers, City Hall, Gary, Indiana, then and there to testify touching matters of inquiry committed to said committee, and not to depart without leave of said committee.”

So began a decade of hardship for Ed and Jean Yellin and their three young children as the repressive weight of the U.S. government, caught up in the throes of McCarthyism, crashed down upon their careers, their daily household budget, and their relationships to colleagues, neighbors, and their country. 

In Contempt is a faithful, factual testament to the enduring quality of patriotic dissent in our evolving democracy—and a loving reconstruction of what it meant to be labeled “un-American” for defending the Constitution.

Noteworthy

The case Yellin v. United States (1963) was reargued for the United States by Solicitor General Archibald Cox.

Recent scholarly article press freedom and democracy

• Hannah Bloch-Wehba, “The Ideology of Press Freedom,” SSRN (Feb. 13)

This Article offers a critical account of the law of press freedom. American law and political culture laud the press as an institution that plays a vital role in democracy: guarding against corruption, facilitating self-governance, and advocating for free expression. These democratic functions provide justification for the law of press freedom, which defends the media’s autonomy and shields the press from outside interference.

But the dominant accounts of the press’s democratic role are only partly accurate. The law of press freedom is grounded in large part on journalism’s professional commitments to objectivity, public service, and autonomy. These idealized characterizations, flawed from the start, drive a business model and a legal strategy that is increasingly at odds with democracy itself.

In both its journalism and in its legal advocacy, the press often reifies existing social and racial hierarchies. An inconsistent defender of free expression, the press strategically sits out many First Amendment battles; in others, it pursues narrow, modest remedies unlikely to protect many outside of its ranks. While the press continues to burnish its image as a critical force for the preservation of democracy, its legal strategy has become increasingly detached from the public good.

Alongside a more clear-eyed assessment of the press’s foundational commitments should come a broader rethinking of the press’s freedom and its legal strategy. Amid dire technological, economic, and political challenges, the reigning ideology of press freedom disserves press institutions as well as broader First Amendment values and democratic interests. This Article concludes by pointing a path toward alternative legal strategies for the press that would better respond to contemporary challenges to democracy.

‘Views on First’ podcast on corporate speech

• “Episode Four: Our Corporate Speech Overlords,” Knight First Amendment Institute (Feb. 2023)

Social media platforms make more decisions about free speech every minute than the Supreme Court has made in more than 200 years. So the values and systems adopted by these corporate speech overlords matter a lot. Guests Nicole Wong — former Google VP and Twitter exec — and Alex Stamos — director of the Stanford Internet Observatory and former Facebook chief security officer — tell the story of how Big Tech stumbled its way through developing systems of speech regulation, from the early laissez-faire days to the controversies of today. Turns out that speech regulation is hard.”

‘So to Speak’ podcast on ‘clean zones & cancel culture & comic books’

• “Super Bowl free speech fumble,” FIRE (Feb. 9)

FIRE's Will Creeley and Aaron Terr join the show to discuss Phoenix, Arizona's unconstitutional “clean zone” for Super Bowl LVII, Chicago Mayor Lori Lightfoot's effort to get public school students to volunteer for her re-election campaign, recent polling on how much people really know about the First Amendment (sadly, not much), and Indiegogo, Kickstarter, and Crowdfundr canceling fundraisers for comic books they deemed politically unacceptable.

We also provide an update on the Hamline University Muhammad art censorship case. 

Related

• Eugene Volokh, “Phoenix’s Delegation to NFL of Power Over Signs Near Super Bowl Violated First Amendment, and was an unconstitutional delegation of government power, an Arizona trial judge held.” The Volokh Conspiracy (Feb. 14)

YouTube: Federalist Society event on law school policies and free speech

• Eugene Volokh, “Federalist Society Panel on “Discussion, Coercion, and the Pursuit of Truth” at Law Schools,” The Volokh Conspiracy (Feb. 13)

Recent events at a number of law schools have raised concerns about civility and respect for opposing views. Many law schools have expressed their commitment to ‘fostering an environment that values the free expression of ideas,’ and have promised ‘consequences’ for disruptive behavior, including Yale Law School. But are existing policies and practices effectively enforced and up to the task? Are law schools creating an environment that encourages the free discussion of ideas?

Do law schools owe their students a grounding in civility, a practice endorsed by bar associations throughout the country? Does tolerance of disruptive behavior and bullying conflict with these schools' commitment to fostering an environment that supports free expression? If law schools fail to teach students to engage respectfully with each other, or to appreciate diverse perspectives on important questions, where will students learn it? Has tolerance for ideological coercion on campus turned law schools into an informal training ground for future bad behavior that bar associations and courts will have to police?

View video

Forthcoming event: FIRE hosts ‘A New Era’ Gala

We expanded our mission to advance free speech on and off campus as the Foundation for Individual Rights and Expression. Just like any monumental occasion, this demands a proper celebration.

We’re bringing together friends, allies, and supporters for a gala dinner and an unforgettable program lineup of free speech defenders. Together let’s launch a new era of FIRE.

Participants

• Michael Render (aka “Killer Mike”)
• Kmele Foster
• Harvey A. Silverglate
• Greg Lukianoff
• Nadine Strossen
• Will Creeley
• Ilya Shapiro
• Nicholas A. Christakis
• Erika Christakis

Date: April 18, 2023

Location: New York City (FIRE has secured a block of rooms at The Westin, New York Grand Central. To reserve a hotel room with our discounted rate, call (212)-405-4268 and mention you’re attending the FIRE gala, or book online by clicking here.”

Contact: (215) 717-3473 // gala@thefire.org

More in the news

• Dennis Hetzel, “Texas teacher’s TikTok video puts focus on educators’ free-speech rights,” Associated Press (Feb. 14)
• Eugene Volokh, “No First Amendment Right to March on a Freeway,” The Volokh Conspiracy (Feb. 14)
• Sam Searles, “Lawsuit: UT Austin professor says his First Amendment rights were violated,” KVUE/ABC (Feb. 13)
• Eugene Volokh, “Professor Sues University of Texas for First Amendment Violations,” The Volokh Conspiracy (Feb. 13)
• Andy East, “School library book banning has First Amendment implications, but law ‘ambiguous’,” The Republic (Feb. 12)
• Elizabeth Nolan Brown, “Do Politicians Have a First Amendment Right To Lie to You?,” Reason (Feb. 10)
• Susanna Granieri, “Federal Judge Dismisses the Trump Campaign’s Defamation Lawsuit Against the Washington Post,” First Amendment Watch (Feb. 6)

2022-2023 SCOTUS term: Free expression and related cases

Review granted

• 303 Creative LLC v. Elenis (argued Dec. 5)
• Jack Daniel’s Properties, Inc. v. VIP Products LLC
• United States v. Hansen
• Counterman v. Colorado

Pending petitions

• Keister v. Bell
• O’Connor-Ratcliff v. Garnier
• Soto v. Texas
• Chen v. Texas
• Moore v. Texas
• Barton v. Texas
• U.S. v. Hernandez-Calvillo
• Price v. Garland
• Moore v. Texas
• Barton v. Texas
• Arkansas Times v. Waldrip
• Moody v. NetChoice, LLC
• NetChoice, LLC v. Moody
• Florida v. NetChoice
• Novak v. City of Parma
• Klein v. Oregon Bureau of Labor and Industries 

State action

• O’Connor-Ratcliff v. Garnier 

Qualified immunity

• Novak v. City of Parma

Immunity under Foreign Sovereign Immunities Act 

• NSO Group Technologies Limited v. WhatsApp Inc. (cert. denied)

Liability Anti-Terrorism Act

• Twitter v. Taamneh (argument Feb. 22)

Section 230 immunity

• Gonzalez v. Google (argument Feb. 21) 

Review denied

• My Pillow v. U.S. Dominion (news story)
• Kowall v. Benson
• Tofsrud v. Spokane Police Department
• Swanson v. Griffin County 

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FAN 366: “Army veteran arrested for holding sign to raise awareness of homeless vets”

This article is part of First Amendment News, an editorially independent publication edited by professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of professor Collins.