SCOTUS-Section 230 Focus Renewed After Jackson Hearings
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.
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Jackson offered “straight” First Amendment analysis at her hearing (see 2203220064), making clear the First Amendment doesn’t allow regulation based on viewpoint, except in extremely narrow circumstances, said DigitalFrontiers Advocacy Principal Neil Fried. He noted Justice Clarence Thomas’ continued call for the high court to hear a case (see 2203070076). In his most recent concurrence, Thomas acknowledged the Jane Doe v. Facebook case wasn’t ripe for high court review, said Fried, but he left no question he would welcome the opportunity to interpret. It remains unclear where other justices stand until cert is sought, said Fried.
The most interesting cases with high court potential are the lawsuits against Republican-passed social media laws in Texas and Florida, said Santa Clara University law professor Eric Goldman: Those laws were structured to give Thomas an opportunity to “embrace censorial doctrines and possibly clip Section 230's wings.” But the cases are relatively early in the cycle, and it will probably be two years before the Supreme Court has a chance to see them, he noted.
Asked if the high court should consider a case, Sen. John Kennedy, R-La., told us Wednesday: “I think Congress ought to address it. We created the problem. We ought to clean it up.” Section 230 is “certainly an issue that is important and is actively litigated right now,” said Sen. Ted Cruz, R-Texas, Tuesday: “I don’t know that it will be a focus of the confirmation hearings.”
Jackson addressed Section 230 during questioning from Sen. Mike Lee, R-Utah. “I can’t comment on a particular issue” about whether it’s constitutional for Congress to condition Section 230 immunity, she said: The criteria depend on whether the government is seeking to regulate along viewpoint lines, which is “generally impermissible” under the First Amendment.
The laws in Texas and Florida weren’t designed to fuel arguments by Thomas or anyone else, said Adam Candeub, a law professor at Michigan State University and former NTIA acting administrator: They “respond to a real problem in society. The internet, which the Supreme Court has called our modern public square, has grown quite repressive and intolerant. The dominant platforms are interfering with the marketplace of ideas -- which is the most essential institution for our democracy.”
A case involving Facebook and the right to publicity has “a good shot, but the background probability is quite low,” said Candeub. Philadelphia TV news anchor Karen Hepp sued Facebook in 2018 for running an ad from the dating app FirstMet, which used her image without consent (see 2203070067). The Texas law involves Section 230 only peripherally, he said: It hinges on whether the court “will make the bold move of overruling centuries of common carrier law on First Amendment grounds.”
The Florida and Texas laws would certainly allow the high court to address the issues Thomas raised, especially the Florida law, said Clay Calvert, who directs the University of Florida Brechner First Amendment Project. If the 11th Circuit rules against Florida and declares the law violates the First Amendment rights of large social media platforms, then I “strongly suspect Florida will petition the Supreme Court,” he said: And if Thomas can “get three of his colleagues similarly concerned, then the case would be heard."
All sides are fishing for a case, including speech advocates and victim advocates, said Fried: “Lots of people are unhappy with the current state of affairs and so a lot of people” want to see legal challenges advance.