packingham – Techdirt (original) (raw)

Justice Alito’s Views On Social Media And The First Amendment Seem To Shift Depending On Who He Wants To Win

from the which-way-the-wind-blows dept

The Supreme Court’s opinions in the NetChoice/CCIA cases have been leading to some bizarre interpretations, as many people try to read into it things they wanted to see but just aren’t there. Cathy already covered some of the oddities of Justice Alito’s concurrence (which Justices Thomas and Gorsuch signed onto), but I wanted to dig in a little more to his concurrence, pointing out a few things that show just how much Alito is willing to decide on an ideological basis, rather than one based on principles.

First up is a point raised by Daphne Keller at Stanford. She notes that Alito cites to the Packingham ruling:

As the Court has recognized, social-media platforms have become the “modern public square.” Packingham v. North Carolina, 582 U. S. 98, 107 (2017). In just a few years, they have transformed the way in which millions of Americans communicate with family and friends, perform daily chores, conduct business, and learn about and comment on current events.

But, as Keller points out, in the Packingham case, Alito wrote a concurrence whining incessantly about the “dicta” in the Packingham ruling (not unlike what he did in this case) and specifically whined about the whole “public square” line, claiming it was “undisciplined” and would be interpreted dangerously by future courts. Here he is in Packingham:

I cannot join the opinion of the Court, however, because of its undisciplined dicta. The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.

He later notes:

I am troubled by the implications of the Court’s unnecessary rhetoric.

So it’s pretty rich for him to be now leaning on that “public square” dicta that he ridiculed in that very case. He is now arguing that states should absolutely be able to force websites to host content.

But we don’t even need to go back to that 2017 decision to see Alito seemingly changing his tune. (We still believe Packingham was correctly decided, and that people misunderstand the “public square” line, though for different reasons than Alito.)

Just last week in the Murthy v. Missouri ruling, Alito’s dissent explained why social media websites have the right to moderate as they see fit. He noted that websites are like newspapers and can publish or “decline to publish whatever they wish.”

Of course, purely private entities like newspapers are not subject to the First Amendment, and as a result, they may publish or decline to publish whatever they wish.

Yet, in the NetChoice ruling, he more or less argues that the states can block that right that he just admitted last week is protected by the First Amendment. He claims that perhaps the sites could be considered common carriers (which only makes sense if you don’t understand what a common carrier is).

Most notable is the majority’s conspicuous failure to address the States’ contention that platforms like YouTube and Facebook—which constitute the 21st century equivalent of the old “public square”—should be viewed as common carriers

The majority didn’t address it because (1) it’s stupid and (2) both the Fifth and Eleventh Circuits effectively rejected that argument. (Judge Oldham’s decision does talk about it, but neither of the two other Judges on the panel signed onto it, so it doesn’t count as binding in any way.)

Alito tries to get around this distinction by arguing that websites are somehow different than newspapers:

Instead of seriously engaging with this and other arguments, the majority rests on NetChoice’s dubious assertion that there is no constitutionally significant difference between what newspaper editors did more than a half-century ago at the time of Tornillo and what Facebook and YouTube do today.

Maybe that is right—but maybe it is not. Before mechanically accepting this analogy, perhaps we should take a closer look.

He later argues that there is some sort of distinction between algorithms making editorial decisions and humans (though, it’s not clear what constitutional relevance that has):

Now consider how newspapers and social-media platforms edit content. Newspaper editors are real human beings, and when the Court decided Tornillo (the case that the majority finds most instructive), editors assigned articles to particular reporters, and copyeditors went over typescript with a blue pencil. The platforms, by contrast, play no role in selecting the billions of texts and videos that users try to convey to each other. And the vast bulk of the “curation” and “content moderation” carried out by platforms is not done by human beings. Instead, algorithms remove a small fraction of nonconforming posts post hoc and prioritize content based on factors that the platforms have not revealed and may not even know. After all, many of the biggest platforms are beginning to use AI algorithms to help them moderate content. And when AI algorithms make a decision, “even the researchers and programmers creating them don’t really understand why the models they have built make the decisions they make.”56 Are such decisions equally expressive as the decisions made by humans? Should we at least think about this?

But, if it were actually true that algorithmic decisions were not protected under the First Amendment (and, again, he’s wrong, and we have precedent to say he’s wrong), then why would he even bring up their rights to moderate in the Murthy decision a week ago?

It seems that Alito, like so many others, has a very flexible view of the First Amendment based on whether his political allies or enemies are making the argument. There is no consistency beyond “the Republicans should get what they want.”

Filed Under: 1st amendment, florida, packingham, samuel alito, social media, texas

Florida Presents Its Laughable Appeal For Its Unconstitutional Social Media Content Moderation Law

from the disney-exempt! dept

Now that Texas has signed its unconstitutional social media content moderation bill into law, the action shifts back to Florida’s similar law that was already declared unconstitutional in an easy decision by the district court. Florida has filed its opening brief in its appeal before the 11th Circuit and… it’s bad. I mean, really, really bad. Embarrassingly bad. I mean, this isn’t a huge surprise since their arguments in the district court were also bad. But now that they’ve had a judge smack them down fairly completely, including in terribly embarrassing oral arguments, you’d think that maybe someone would think to try to lawyer better? Though, I guess, you play with the hand your dealt, and Florida gave its lawyers an unconstitutionally bad hand.

Still, I’d expect at least marginally better lawyering than the kind commonly found on Twitter or in our comments. It starts out bad and gets worse. First off, it claims that it’s proven that social media platforms “arbitrarily discriminate against disfavored speakers” and uses a really bad example.

The record in this appeal leaves no question that social media platforms arbitrarily discriminate against disfavored speakers, including speakers in Florida. The record is replete with unrebutted examples of platforms suppressing user content for arbitrary reasons. E.g., App.891 (Doc.106-1 at 802) (Facebook censoring The Babylon Bee, a Florida-based media company, for obviously satirical content). When caught, platforms frequently cast these decisions off as ?mistakes.? E.g., App.1693 (Doc.106-5 at 201). But systematic examinations show that platforms apply their content standards differently to content and speakers that express different views but are otherwise similarly situated, all while publicly claiming to apply those standards fairly. See App.999, 1007, 1183 (Doc.106-2 at 14, 22; Doc.106-3 at 17). There are many examples in the Appendix, and even that list is hardly exhaustive.

Except that at scale, tons of mistakes are made, so yes, many of these are mistakes. And others may not be, but it is up to the platform to determine who breaks the rules. But, much more importantly, it is totally within the right of private companies to moderate how they see fit and interpret their own terms of service. So even if there were proof of “discrimination” here (and there is not), it’s not against the law.

From there it just gets silly:

Undoubtedly, social media is ?the modern public square.? Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). In S.B. 7072 (the ?Act?)…

Generally speaking, citing Packingham is a demonstration for support of your plan to force private actors to host speech shows you have totally misunderstood Packingham and are either too ignorant or too disingenuous to take seriously. Packingham is about preventing the government from passing laws that remove full internet access from people. It does not mean that any private company has to provide access to anyone.

The argument that Florida’s law is not pre-empted by Section 230 is nonsense. Section 230 is clear that no state law can contradict it and do anything to put liability on private website operators (or users) regarding the actions of their users. But that’s exactly what Florida’s law does.

As the District Court tacitly acknowledged, the only part of that statute that could possibly preempt the Act is Section 230(c)(2). But that provision serves only to absolve platforms of liability when they remove in good faith content that is ?objectionable? within the meaning of Section 230(c)(2). That leaves myriad ways in which the Act can apply consistently with Section 230(c)(2). For example, the Act and Section 230 can peacefully coexist when a social media platform fails to act in ?good faith,? when the Act does not regulate the removal or restriction of content, or when a platform removes unobjectionable material.

This is disingenuous to downright wrong, and completely ignores the interplay between 230(c)(1) and 230(c)(2) and, notably, the fact that nearly every lawsuit regarding moderation has said that (c)(1) protects all moderation choices, whether or not they are “good faith.” And Section 230 clearly also pre-empts any attempt by a state to ignore moderation that is protect by (c)(1). Florida’s lawyers just ignore this. Which is kind of stunning. It’s not like the lawyers for NetChoice and CCIA are going to ignore it too. And they can point to dozens upon dozens of cases that prove Florida wrong.

The 1st Amendment argument is even worse:

Plaintiffs are also unlikely to succeed on their claim that the Act violates the First Amendment on its face. Most of the Act is directed at ensuring that social media platforms host content in a transparent fashion. For example, the Act requires non-controversial, factual disclosures, and disclosure requirements have long coexisted with the First Amendment. Even the portions of the Act that regulate the manner in which platforms host speech are consistent with the First Amendment. When properly analyzed separately from the Act?s other provisions?and from the extraneous legislative statements on which the District Court primarily relied?these requirements parallel other hosting regulations that the Supreme Court has held are consistent with the First Amendment. E.g., Rumsfeld v. FAIR, Inc., 547 U.S. 47, 63 (2006). The Act?s hosting regulations prevent the platforms from silencing others. They leave platforms free to speak for themselves, create no risk that a user?s speech will be mistakenly attributed to the platforms, and intrude on no unified speech product of any platform. These requirements are little different from traditional regulation of common carriers that has long been thought consistent with the First Amendment.

The reliance on Rumsfeld v. FAIR is quite silly, and the few people who have brought it up also tend to look quite silly. This is not even remotely similar to the Rumsfeld situation, which was very narrow and very specific and cannot be extended to apply to an entire social media platform. And to just sort of toss in the idea that social media is a common carrier — when they do not meet (at all) the classification of a common carrier, and have never been deemed a common carrier — is just boldly stupid.

There’s more, of course, but those are the basics. You never know how a court is going to decide — and perhaps you get a confused and persuadable judge (there are, unfortunately, a few of those out there). But, this is really weak and seems unlikely to stand.

Filed Under: 1st amendment, common carrier, content moderation, florida, free speech, packingham, pruneyard, public square, section 230, social media

As Predicted, Cox's Latest Appeal Points To SCOTUS' Refusal To Disconnect Sex Offenders From Social Media

from the which-is-worse? dept

Last week the Supreme Court managed to hold its nose long enough to properly assert that banning convicted sex offenders from social media was plainly an infringement on their First Amendment rights. While much of the media coverage focused on the question of sex offenders having access to these well-trafficked websites, the real implications of the ruling were always likely to be far more reaching. We specifically pointed to the reasonable question: if sex offenders can’t be blocked from internet sites due to their First Amendment rights, how can we possibly require ISPs to disconnect those accused of piracy from the internet under even the most tortured reading of 512(i) of the DMCA? In that original post, Mike wrote:

I expect that to be quoted in many other cases — and a big one may be the ongoing attempts right now by the legacy entertainment industry to force ISPs to kick people off of their service based on accusations (not convictions) of infringement. Those cases, like this Packingham case, involve using a law to claim that people should be blocked from using the internet. And based on the quotes above, it seems quite likely that parts of the DMCA are clearly unconstitutional. The lawsuits — mainly the BMG v. Cox ruling which is currently on appeal, and the more recent UMG v. Grande Communications (which follows the same basic outlines of the Cox case) — involve arguing that 512(i) of the DMCA requires ISPs to kick users off their service entirely based on accusations of infringement. As we’ve explained, this already appears to be a twisted interpretation of 512(i), but now it appears there’s a very reasonable chance that the Supreme Court could find 512(i) outright unconstitutional under the First Amendment for broadly blocking internet access in a way that harms free speech rights.

It appears we’re starting down the road of finding out exactly what the court’s answer to this question will be, as Cox recently filed an appeal and has now referenced the SCOTUS decision in its written arguments.

Packingham is directly relevant to what constitute ‘appropriate circumstances’ to terminate Internet access to Cox’s customers. The decision emphatically establishes the centrality of Internet access to protected First Amendment activity.

As the Court recognized, Internet sources are often ‘the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge’.

The filing goes on to note that the government is not allowed to infringe on free speech in order to prohibit unlawful speech. If ever there were an example of that very thing, it certainly would be accused pirates being disconnected from what has now been cited as a speech medium in the internet. I’m genuinely looking forward to hearing oral arguments from the legal staff of the movie and record labels that those accused of piracy, typically on flimsy at best evidence, ought to be afforded less rights than convicted sex offenders. We’ve seen much demonizing of the internet in general and piracy in particular, but I’m having a hard time conjuring up the images of those lawyers managing to go that far. That’s an argument that’s going to need to be made, however, given the contention of Cox’s latest filing.

And if it offends the Constitution to cut off a portion of Internet access to convicted criminals, then the district court’s erroneous interpretation of Section 512(i) of the DMCA — which effectively invokes the state’s coercive power to require ISPs to terminate all Internet access to merely accused infringers — cannot stand.

A win for Cox would mean much for the free speech rights of everyone in regards to internet access. A loss would mean this country’s court system has some seriously skewed priorities for who should and should not be allowed access to the web.

Filed Under: copyright, disconnection, dmca, first amendment, free speech, internet access, packingham, rights, scotus
Companies: bmg, cox, rightscorp

Supreme Court Says You Can't Ban People From The Internet, No Matter What They've Done

from the good-to-see dept

Going all the way back to 2002 (and many times after that), we’ve talked about courts struggling with whether or not it’s okay to ban people from the internet after they’ve committed a crime. The question comes up in many different cases, but most prevalently in cases involving child predators. While courts have struggled with this issue for so long, it’s only now that the Supreme Court has weighed in and said you cannot ban someone from the internet, even if they’re convicted of horrific crimes — in this case, sex crimes against a minor. The case is Packingham v. North Carolina, and the Supreme Court had to determine if it violated the First Amendment’s free speech clause and the Fourteenth Amendment’s due process clause, to make it a felony for convicted sex offenders to visit social media sites like Facebook and Twitter, as was the case under a North Carolina law.

In this case, Lester Packingham is a convicted sex offender for an event that happened back in 2002. In 2010, he went on Facebook to brag about getting a traffic ticket dismissed — using his middle name as his last name. A local police officer saw the post and connected the dots to figure out that the poster “J.R. Gerard” was actually Lester Gerard Packingham and charged him with violating that NC law on using social media as a sex offender. Various state courts went back and forth with the NC Supreme Court eventually saying that the law was “constitutional in all respects.” The Supreme Court of the United States, however, did not agree.

The ruling is interesting on a number of levels. It cites, pretty directly, EFF’s amicus brief, noting just how important and central to our lives sites like Facebook have become.

While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace?the ?vast democratic forums of the Internet? in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. Brief for Electronic Frontier Foundation et al. as Amici Curiae 5?6. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. According to sources cited to the Court in this case, Facebook has 1.79 billion active users. Id., at 6. This is about three times the population of North America.

Social media offers ?relatively unlimited, low-cost capacity for communication of all kinds.? Reno, supra, at 870. On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner. Indeed, Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose. See Brief for Electronic Frontier Foundation 15?16. In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics ?as diverse as human thought.?

The opinion, written by Justice Kennedy, notes that the internet is a vast and changing place, and notes that the court does need to proceed with caution — but that caution must be in the direction of protecting Constitutional rights:

This case is one of the first this Court has taken to address the relationship between the First Amendmentand the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the FirstAmendment provides scant protection for access to vast networks in that medium.

And then, the opinion dives right in and says that the law is obviously a violation of the First Amendment for not being “narrowly tailored.” Again, while there are a few limited exceptions to the First Amendment, they are very narrowly tailored and the Supreme Court has shown little to no interest in expanding them:

Even making the assumption that the statute is content neutral and thus subject to intermediate scrutiny, the provision cannot stand. In order to survive intermediate scrutiny, a law must be ?narrowly tailored to serve a significant governmental interest.? … In other words, the law must not ?burden substantially more speech than is necessary to further the government?s legitimate interests.? …

And this law is not, at all, narrowly tailored. Once again, SCOTUS leans heavily on EFF’s amicus brief to point out how overly broad this NC law is:

It is necessary to make two assumptions to resolve this case. First, given the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com. See post, at 6?9; see also Brief for Electronic Frontier Foundation 24?27; Brief for Cato Institute et al. as Amici Curiae 10?12, and n. 6. The Court need not decide the precise scope of the statute. It is enough to assume that the law applies (as the State concedes it does) to social networking sites ?as commonly understood??that is, websites like Facebook, LinkedIn, and Twitter….

From there, it notes that clearly a state could bar more specific and narrowly tailored actions that are not broadly targeting speech:

Second, this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission…. Though the issue is not before the Court, it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.

But this law obviously goes way beyond that, and the Court is troubled by this, calling it “unprecedented in the scope of First Amendment speech it burdens.”

Even with these assumptions about the scope of the law and the State?s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind…. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with anInternet connection to ?become a town crier with a voice that resonates farther than it could from any soapbox.”…

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals?and in some instances especially convicted criminals?might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

The above part is the key part of this ruling, and I fully expect it to be cited repeatedly in future cases. It’s the Supreme Court declaring, quite clearly, that the ability to use the internet is vital to being a part of society today, and thus there’s a fundamental First Amendment right to be able to do so.

Three Justices — Alito, Roberts and Thomas — concur with the overall opinion, but do take some issue with the expansive nature of Kennedy’s opinion, suggesting it goes too far. In the concurrence, written by Alito, they note:

I cannot join the opinion of the Court, however, because of its undisciplined dicta. The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks…. And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers. I am troubled by the implications of the Court?s unnecessary rhetoric.

I don’t see how they can read the majority opinion to say that. Kennedy’s opinion makes it quite clear that such things can be restricted where it’s clear that these actions are narrowly targeted at situations that “often presages a sexual crime.” Either way, I get the feeling that, despite these concerns, this case will be cited in useful ways to protect free speech in the future…

Filed Under: first amendment, free speech, internet, lester packingham, north carolina, packingham, public square, scotus, supreme court