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First Amendment News 275: Justice Thomas urges Court to pare back Section 230's 'sweeping immunity'

A desktop computer with emails pouring out of it

Yes, this is Free Speech Week (October 19-25). 


“[C]ourts have extended the immunity in §230 far beyond anything that plausibly could have been intended by Congress." — Rod Smolla, Law of Defamation §4:86, p. 4–380 (2d ed. 2019) 

In his lone opinion respecting a denial of certiorari in Malwarebytes, Inc. v. Enigma Software Group, USA, Justice Clarence Thomas drew on that quote and joined Senator Ted Cruz (R-TX) and others in challenging the "safe harbor" provision of Section 230 of the Communications Decency Act. The reasons he gave for doing so are set out below:

Justice Clarence Thomas

Publisher-distributor dichotomy: "Courts have discarded the longstanding distinction between 'publisher' liability and 'distributor' liability. Although the text of §230(c)(1) grants immunity only from 'publisher' or 'speaker' liability, the first appellate court to consider the statute held that it eliminates distributor liability too—that is, §230 confers immunity even when a company distributes content that it knows is illegal."

Publisher-distributor overlap: "To be sure, recognizing some overlap between publishers and distributors is not unheard of. Sources sometimes use language that arguably blurs the distinction between publishers and distributors. One source respectively refers to them as 'primary publishers' and 'secondary publishers or disseminators,' explaining that distributors can be 'charged with publication.' W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 799, 803 (5th ed. 1984)."

Questioning publisher-distributor equivalence: "It is odd to hold, as courts have, that Congress implicitly eliminated distributor liability in the very Act in which Congress explicitly imposed it. Second, Congress enacted §230 just one year after Stratton Oakmont used the terms 'publisher' and 'distributor,' instead of 'primary publisher' and 'secondary publisher.' If, as courts suggest, Stratton Oakmont was the legal backdrop on which Congress legislated, e.g., FTC v. Accusearch Inc., 570 F. 3d 1187, 1195 (CA10 2009), one might expect Congress to use the same terms Stratton Oakmont used. Third, had Congress wanted to eliminate both publisher and distributor liability, it could have simply created a categorical immunity in §230(c)(1): No provider 'shall be held liable' for information provided by a third party. After all, it used that exact categorical language in the very next sub-section, which governs removal of content. §230(c)(2). Where Congress uses a particular phrase in one subsection and a different phrase in another, we ordinarily presume that the difference is meaningful."

How section 230 was first interpreted: "'[F]rom the beginning, courts have held that §230(c)(1) protects the 'exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.' E.g., Zeran, 129 F. 3d, at 330 (emphasis added); cf. id., at 332 (stating also that §230(c)(1) protects the decision to 'edit'). Only later did courts wrestle with the language in §230(f )(3) suggesting providers are liable for content they help develop 'in part.'"

Absence of restrictions invites abuse: "With no limits on an Internet company’s discretion to take down material, §230 now apparently protects companies who racially discriminate in removing content. Sikhs for Justice, Inc. v. Facebook, Inc., 697 Fed. Appx. 526 (CA9 2017), aff ’g 144 F. Supp. 3d 1088, 1094 (ND Cal. 2015). . . Courts also have extended §230 to protect companies from a broad array of traditional product-defect claims. . . . Extending §230 immunity beyond the natural reading of the text can have serious consequences. Before giving companies immunity from civil claims for 'knowingly host[ing] illegal child pornography,' Bates, 2006 WL 3813758, *3, or for race discrimination, Sikhs for Justice, 697 Fed. Appx., at 526, we should be certain that is what the law demands."

No likelihood of runaway liability: "Paring back the sweeping immunity courts have read into §230 would not necessarily render defendants liable for online misconduct. It simply would give plaintiffs a chance to raise their claims in the first place. Plaintiffs still must prove the merits of their cases, and some claims will undoubtedly fail."


Emily Bazelon: "Taking away the platforms’ immunity . . .  seems like a bad fit for the problems at hand. The threat of being sued for libel could encourage platforms to avoid litigation costs by pre-emptively taking down content once someone challenges it. Some of that content would be disinformation and hate speech, but other material might be offensive but true — a risk of over censorship."

Custom floral art's case lingers on Court's docket

Arlene’s Flowers Inc. v. Washington has been on the court's docket since October 15, 2019, when Kristen Waggoner filed her cert. petition in the case. The issue raised in Arlene Flowers according to SCOTUSblog are: "(1) Whether a state violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the free exercise clause’s prohibition on religious hostility applies to the executive branch."

Since then it has been distributed for conference four times starting on January 10, 2020.  It was last distributed for conference on February 21, 2020.

Justice Department sues author of 'Melania and Me'

This from First Amendment Watch:

The Department of Justice is suing a former senior aide to First Lady Melania Trump, claiming her tell-all book about Melania violated a non-disclosure agreement she signed in 2017.

Filed in the United States District Court of the District of Columbia on October 14th, the lawsuit says that Stephanie Winston Wolkoff, a longtime friend of Melania’s, failed to obtain written permission before publishing “Melania and Me: The Rise and Fall of My Friendship with the first lady.” The book details some of the work she did as a volunteer advisor to the First Lady, and at times paints a less than flattering portrait of Melania.

In addition to a declaration that Wolkoff breached her contractual obligations, government attorneys are asking the D.C. court to order Wolkoff and her publisher, Simon & Schuster, to surrender all profits from the book and place them in a government trust.

In a statement, Wolkoff said the nondisclosure agreement ended when the White House terminated her position.

“The President and First Lady’s use of the US Department of Justice to silence me is a violation of my First Amendment Rights and a blatant abuse of the government to pursue their own personal interests and goals,” Wolkoff said.  . . .


Donald Trump wants us to hear him. And hear him. And hear him. This is a man who, as president of the United States, regularly calls into Fox News programs to launch into long and rambling monologues, who has sent as many as 200 tweets and retweets in a single day, and who famously craves the adoring throngs at his rallies.

Yet as much as Trump demands the spotlight, he is obsessed with controlling what it illuminates. When Trump was a private citizen, this tension manifested in numerous and sometimes bizarre ways, including his prolific use of nondisclosure agreements in his business and personal lives, calling journalists under assumed names to plant flattering stories about “Mr. Trump,” and showing up at public events to claim credit for charitable donations he had never made.

Emily Bazelon: 'The First Amendment in the age of disinformation' 

"There has been a lot of freedom of thought over the past few years, but no thought." — Simone Weil (1949)

In what may be the most thoughtful and provocative examination of free speech in decades, Emily Bazelon wrote at length about what she sees as "America’s information crisis" and the abuses related to it. Excerpts from her essay in the New York Times Magazine are set out below:

Questioning an article of faith: "It’s an article of faith in the United States that more speech is better and that the government should regulate it as little as possible. But increasingly, scholars of constitutional law, as well as social scientists, are beginning to question the way we have come to think about the First Amendment’s guarantee of free speech. They think our formulations are simplistic — and especially inadequate for our era. Censorship of external critics by the government remains a serious threat under authoritarian regimes. But in the United States and other democracies, there is a different kind of threat, which may be doing more damage to the discourse about politics, news and science. It encompasses the mass distortion of truth and overwhelming waves of speech from extremists that smear and distract."

Emily Bazelon

The politics of language: "A crude authoritarian censors free speech. A clever one invokes it to play a trick, twisting facts to turn a mob on a subordinated group and, in the end, silence as well as endanger its members. Looking back at the rise of fascism and the Holocaust in her 1951 book 'The Origins of Totalitarianism,' the political philosopher Hannah Arendt focused on the use of propaganda to 'make people believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism.'

In other words, good ideas do not necessarily triumph in the marketplace of ideas. 'Free speech threatens democracy as much as it also provides for its flourishing,' the philosopher Jason Stanley and the linguist David Beaver argue in their forthcoming book, 'The Politics of Language.'"

Empowering corporations: "If Trump’s deeply conservative third Supreme Court nominee, Amy Coney Barrett, is confirmed, the court will most likely become more committed to its path of using the First Amendment to empower corporations. Somewhere along the way, the conservative majority has lost sight of an essential point: The purpose of free speech is to further democratic participation. 'The crucial function of protecting speech is to give persons the sense that the government is theirs, which we might call democratic legitimation,' says the Yale law professor Robert Post. 'Campbell Soup Company can’t experience democratic legitimation. But a person can. If we lose one election, we can win the next one. We can continue to identify with the democratic process so long as we’re given the opportunity to shape public opinion. That’s why we have the First Amendment.'"

The dearth of factual accuracy: "The dearth of competition for factual accuracy among conservative outlets leaves their audiences vulnerable to disinformation even if the mainstream news media combats it. People are more likely to believe fact-checking from a source that speaks against its apparent political interest, research shows. In the eyes of many conservatives, news outlets like The Washington Post, The New York Times and CNN do not fill that role when they challenge a story that Trump and Fox News promote."

The wild web: Pushing emotions: "The business model for the dominant platforms depends on keeping users engaged online. Content that prompts hot emotion tends to succeed at generating clicks and shares, and that’s what the platforms’ algorithms tend to promote. Lies go viral more quickly than true statements, research shows.

In many ways, social media sites today function as the public square. But legally speaking, internet platforms can restrict free speech far more than the government can. They’re like malls, where private owners police conduct. Facebook, YouTube and Twitter have guidelines that moderate content that could drive away users, including spam and pornography, and also certain forms of harassment, hate speech, fake engagement or misrepresentation and violent extremism. But for years, the companies enforced these rules subjectively and unevenly — allowing for explosions of anti-Semitic memes and targeted harassment of women, for example."

The information crisis & what to do about it: "America’s information crisis was not inevitable. Nor is it insoluble. Whatever the Supreme Court does, there’s no legal barrier to increasing the delivery of reliable information. The government, federal or state, could invest in efforts to do exactly that. It could stop the decline of local reporting by funding nonprofit journalism. It could create new publicly funded TV or radio to create more alternatives for media that appeals across the ideological spectrum. The only obstacles to such cures for America’s disinformation ills are political."

Does free speech keep us free?: "As we hurtle toward the November election with a president who has trapped the country in a web of lies, with the sole purpose, it seems, of remaining in office, it’s time to ask whether the American way of protecting free speech is actually keeping us free. Hannah Arendt finished her classic work on totalitarianism in the early 1950s, after barely escaping Germany with her life, leaving friends and homeland behind. She was a Jewish intellectual who saw the Nazis rise to power by demonizing and blaming Jews and other groups with mockery and scorn. The ideal subject of fascist ideology was the person 'for whom the distinction between fact and fiction (i.e. the reality of experience),' Arendt wrote, 'and the distinction between true and false (i.e. the standards of thought) no longer exist.' An information war may seem to simply be about speech. But Arendt understood that what was at stake was far more."

New report from FIRE on colleges & internet speech 

From the announcement of the new report:

While the difficulties brought by online teaching due to COVID-19 are new, universities’ struggles with respecting student rights online are not.

Memory-holed: Universities and Internet Speech, a new report from the Foundation for Individual Rights in Education, explores the surge in online censorship and examines some of FIRE’s biggest online speech cases from the past two decades, including:

  • a professor who was sanctioned for a social media post about Game of Thrones;
  • an administrator who punished a student for posting to Instagram a topless photo of herself on a European beach, where nudity is legal;
  • a student who reached a $900,000 settlement with his college after the university president unilaterally expelled him for his criticism of two parking garages;
  • a student who emailed his classmates that he was withdrawing from a class, encouraging them to join him in taking it in the spring — and was found guilty of hazing, disorderly conduct, and breach of the peace;
  • a professor placed on forced administrative leave for emailing George Washington’s Thanksgiving address;
  • and unsurprisingly, plenty of controversial tweets.

“From Myspace to Instagram, administrators have used every social media platform to discourage, censor, and punish free expression,” said Sarah McLaughlin, Director of Targeted Advocacy and author of the report. “The platforms may change, but the threat to free speech doesn’t. In 2020 and beyond, with more of the college experience occurring online, the problem is only going to get worse.”

The report examines the 35 institutions across the country that hold the worst, “red light” rating in FIRE’s Spotlight Database for their policies regulating social media or other online content. This speech code rating denotes policies that both clearly and substantially restrict freedom of speech — and should be a warning sign to students.

The report also examines how colleges restrict speech on their social media pages, collectively blocking 1,825 unique words and phrases including the names of political figures, corporate partners, sports teams, faculty members, and even an emoji.

The problem extends beyond America’s borders: The report shows how international students, and American students studying abroad or through international partnerships, face serious consequences for internet speech — including arrest.

Forthcoming book on free speech on campus

Traditionally, the university or college is thought to be the ultimate location for the discovery and sharing of knowledge. After all, on these campuses are some of the great minds across all fields, as well as students who are not only eager to learn, but who often contribute to our shared wisdom. For those ideals to be achieved, however, ideas require access to some kind of virtual marketplace from which people can sample and consider them, discuss and debate them. Restricting the expression of those ideas for whatever reason is the enemy of not only this process, but also of knowledge discovery. Speech freedom on our college and university campuses, like everywhere else, is fragile. There are those who wish to suppress it, more often than not when the words express ideas, opinions, and even facts that conflict with their beliefs.

Why does an effort so completely at odds with the foundational values of this country happen? This topic explored in Speech Freedom on Campus: Past, Present and Future is multi-layered, and its analysis is best accomplished through multiple perspectives. Joseph Russomanno’s edited collection does precisely that, utilizing 10 different scholars to examine various aspects and issues related to speech freedom on campus.

Forthcoming scholarly article on 'virtual assaults'

  • Nicole Ligion, "Virtual Assault," University of Illinois Law Review (2021)
Nicole Ligon

The vast majority of gifs, memes, and other internet content constitute speech protected by the First Amendment. As a general rule, aesthetic decisions concerning that speech – such as the usage of certain colors, background graphics, or font size – are expressive elements that warrant full constitutional protection. But a recent cyberattack against Twitter followers of the Epilepsy Foundation blurred that line. In November 2019, internet hackers sent a series of videos and flashing images to thousands of individuals affiliated with the Epilepsy Foundation. The transmission of that content was intended to trigger seizures in those with epilepsy. This begs the question: did the hackers’ messages containing strobe gifs constitute free speech protected under the First Amendment? Arguments have been waged on both sides, though no court has yet to address the question.

This article answers with an emphatic no. Messages calibrated to inflict physical harm on the recipient are “virtual assaults” and are not entitled to First Amendment protection. This article defines a new cause of action for “virtual assault” and, in arguing that such an action would be constitutionally permissible, concludes that senders engaged in such conduct should not be permitted to skirt tort and criminal liability by hiding behind the right of free speech.

Scholarly article on 'anti-vax fear speech'

Job opening: Legal director at Institute for Free Speech 

Hugh Hefner 2020 First Amendment awards 

The 2020 recipients of the Hugh Hefner First Amendment awards are:

  • Law: David E. McCraw, Deputy General Counsel of The New York Times, for his book Truth in Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts. McCraw has led the Times fight for freedom of information since 2002. From Chelsea Manning’s leaks to Trump’s tax returns, McCraw is central to the paper’s ability to fulfill the public’s right to know.

  • Book Publishing: Andrea Dennis & Erik Nielson, Authors, for their book Rap on Trial: Race, Lyrics, and Guilt in America, a groundbreaking exposé about the alarming use of rap lyrics as criminal evidence to convict and incarcerate young men of color.

  • Journalism: Omar Jimenez, Journalist and CNN Correspondent, for representing the power of consummate professionalism during his on-camera arrest while covering the George Floyd protests in Minnesota.

  • Arts & Entertainment: Christina Clusiau & Shaul Schwarz, Documentary Filmmakers, for their successful battle to overcome the US government’s attempts at censoring their film, “Immigration Nation,” and delaying its release until after the November Presidential election.

  • Education: Michael Frazier, student at the University of Kentucky, LGBTQ and First Amendment Rights Activist, for working to eliminate free speech zones on campus and successfully leading the effort to draft and enact the bipartisan Kentucky Campus Free Speech Protection Act.

  • Lifetime Achievement: Ira Glasser, Former Director of the ACLU, for his fierce defense of freedom of speech and expression during his 23-year tenure as Executive Director of the ACLU. He is widely recognized as building the robust infrastructure that is today’s ACLU.  By the time Ira retired, the ACLU had a $30 million endowment, offices in every state, and was more powerful than ever. Additionally, he saw earlier than most the disproportionate racial consequences of the War on Drugs.


New scholarly article

Podcast: Jeff Rosen on big tech 

Constitutional lawyers publish children’s book on First Amendment

This from Reporters Committee for Freedom of Press:

“If you could have any superpower, what would it be?” This question typically elicits a wide range of responses, from invisibility to flight. In their new children’s book, however, constitutional lawyers Jessica and Sandy Bohrer ask young readers to appreciate a different superpower, one that they already possess: their voice.

“Your Voice is Your Superpower,” published in September and intended for children ages 4-7, explains the value of our First Amendment right to free speech and encourages kids to exercise it.

The authors, a father-daughter duo, have decades of experience practicing First Amendment law. Jessica is the vice president and editorial counsel at Forbes and a member of the Leadership Council of the Committee to Protect Journalists. Her father, Sandy, is a partner at Holland & Knight who represents media organizations in lawsuits involving freedom of speech and the press. The Reporters Committee for Freedom of the Press recently talked to Jessica and Sandy about what it was like to collaborate on the book, how they broke down the First Amendment for young readers and what they hope children will learn from the book. (This interview has been edited and condensed for length and clarity.) (interview follows on link above)

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