The prospect of an FTC privacy rulemaking is facing a partisan divide in the agency and on Capitol Hill. House Commerce Committee ranking member Cathy McMorris Rodgers, R-Wash., and House Consumer Protection Subcommittee ranking member Gus Bilirakis, R-Fla., told us the agency shouldn’t issue a rule because it’s a legislative issue Congress needs to fix.
Section 230
The federal government can’t force companies to “censor or publish speech to comport with its view of the truth,” American Civil Liberties Union Senior Legislative Counsel Kate Ruane in an emailed statement Tuesday. She made the comment in reaction to the Biden administration’s announcement that it’s reviewing Communications Decency Act Section 230 and social media company accountability for misinformation. The government can’t “be trusted to label ‘truth’ or ‘fiction’ any more than Facebook or Twitter,” said Ruane. “The First Amendment protects people -- and social media companies -- from legal risk for misinformation, but also for information that is thought to be false and later turns out to be true. That’s essential.”
The House Appropriations Committee advanced increased CPB funding Thursday along party lines. The committee was considering legislation early Thursday evening that would boost NTIA, Patent and Trademark Office and other Commerce Department agencies' appropriations. The committee advanced its FY 2022 Department of Homeland Security funding bill earlier this week, which included $2.13 billion for the Cybersecurity and Infrastructure Security Agency (see 2107130056).
President Donald Trump’s lawsuits against Facebook, Google and Twitter (see 2107070065) raise “an interesting argument” about when a private entity becomes a state actor subject to First Amendment restraints, FCC Commissioner Brendan Carr said Thursday. Supreme Court precedent establishes that a private entity effectively becomes a state actor when “sufficiently coordinating with government actors,” Carr said during an FCBA event: “We’ll see how that case plays out.” And there are examples of affirmative, anti-discrimination obligations placed on private entities that involve public accommodation law, said Carr. He described a spectrum of speech obligations for cases involving data roaming and cable’s must-carry provisions. It can be argued that social media companies are in the realm of the cable must-carry cases, he said. It’s time for Congress to close the gap between tech platforms’ corporate power and the lack of accountability, he argued. “Reform” for Communications Decency Act Section 230 is one “important piece,” he said, but it’s not sufficient. Big Tech also needs to provide more transparency, he said, voicing support for the Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard (Pro-Speech) Act (see 2106100070). The bill “pretty much nails it,” Carr said. Congress should also consider methods for banning pretextual content moderation and imposing affirmative, anti-discrimination obligations, he said. Trump’s legal complaints aren’t “frivolous,” said Free State Foundation President Randolph May. He noted Trump’s argument CDA Section 230 immunity “amounts to a delegation of authority by Congress that facilitates the companies’ censorship actions.” If correct, Big Tech companies can’t censor posts, May said, though he’s “not convinced at this point that Section 230’s grant of immunity, standing alone, is sufficient to make the Big Tech social media companies state actors.” It’s possible discovery “could uncover a trove of emails from various congressional officials urging the social media companies to take certain actions which the firms quickly took,” he added.
Trial courts should expedite antitrust cases against Big Tech, there should be direct appeal to the Supreme Court, and state attorneys general should be empowered, House Judiciary Committee Republicans said Tuesday, releasing a Big Tech agenda. Republicans want a Communications Decency Act Section 230 “overhaul” and for antitrust cases to be consolidated under DOJ. They recommended content moderation decisions be listed on a public website.
Former President Donald Trump sued Facebook, Google, Twitter and their CEOs Wednesday, alleging illegal online censorship. Experts dismissed this as a baseless effort without First Amendment grounds.
Florida plans to “immediately appeal” to the 11th U.S. Circuit Court of Appeals Wednesday's decision by the U.S. District Court in Tallahassee to freeze Florida’s law regulating social media, said a spokesperson for Gov. Ron DeSantis (R) Thursday. Hours before the law was to take effect, Judge Robert Hinkle granted NetChoice and the Computer and Communications Industry Association’s motion for preliminary injunction (see our bulletin). Plaintiffs and supporting amici told us they’re confident the 11th Circuit won’t overturn the lower court.
Regulating how powerful social media companies control user content is “little different from traditional common carrier regulation long thought to be constitutionally permissible,” said Florida Monday at U.S. District Court in Tallahassee. The state opposed internet industry groups’ motion for preliminary injunction, arguing that Communications Decency Act Section 230 doesn’t preempt Florida from regulating networks that censor free speech: Plaintiffs may say sites are businesses not subject to the First Amendment, but if “Section 230 creates a broad law-free zone in which internet companies can censor however they like, even in bad faith, then serious questions would arise about whether their censorship constitutes state action.” Even if the court disagrees social networks are state actors, “there is nevertheless state action to whatever extent Section 230 preempts Florida law,” argued Florida, citing a 1956 Supreme Court case, Railway Employees’ Department v. Hanson. The Supreme Court, in 2006’s Rumsfeld v. FAIR and 1980’s PruneYard Shopping Center v. Robins, said the First Amendment gives government wide latitude to regulate, Florida said. A footnote responded to plaintiffs’ incredulity about the law exempting companies that own Florida theme parks, which could include Disney and Comcast. It “only applies to a handful of entities, none of which operates a social media platform of significant size,” Florida said. “The narrow exception survives intermediate scrutiny, and in any event should be severed from the rest of the Act if the Court deems it unconstitutional.” Virtual oral argument is June 28 at 1:30 p.m. Judge Robert Hinkle said he plans to rule on preliminary injunction by end-of-day June 30 (see 2106100059). The court received amicus briefs opposing the state law last week, including from the Internet Association, Electronic Frontier Foundation, American Civil Liberties Union and TechFreedom. It might seem “counterintuitive,” but “the answer to Florida lawmakers’ concerns ... is to preserve the constitutional status quo,” wrote EFF. The law vests Florida “with the pure power of the censor,” said ACLU and press and writer groups. Common carriage rules may not be applied to social media, said TechFreedom.
Senate Commerce Committee ranking member Roger Wicker, R-Miss., filed Thursday his Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard (Pro-Speech) Act. The bill was as expected (see our report here). It would regulate online platforms like common carriers. The measure would bar social media from actions against users based on racial, sexual, religious, partisan or ethnic grounds. It would bar platforms from blocking or discriminating against competing platforms by declaring such actions presumptively anti-competitive. It would let the FTC to use Section 5 authority to enforce the law. The Pro-Speech Act should “make it clear that these large internet tech platforms cannot discriminate based on their own opinions and based on what they think the public should and should not be allowed to hear,” Wicker told a news conference on Republicans’ concerns about Big Tech “censorship” related to the pandemic. “This is a serious, grave threat to freedom and the open exchange of ideas under” the Constitution. FCC Commissioner Brendan Carr praised the legislation and believes it should be enacted in concert with Communications Decency Act Section 230 revamp. The bill “would give Big Tech a simple choice: either stop blocking people from posting and accessing lawful content or declare that you are acting as a publisher and accept the responsibilities that come with that status,” he said. It “would also bring much needed transparency to Big Tech’s practices and rein in their anticompetitive conduct.” NetChoice opposes the measure. It “may look like it checks some boxes for conservatives, but in practice it will make the internet impossible to use by forcing all of us to sift through the worst of the internet just to connect with our friends and family,” said General Counsel Carl Szabo in a statement. “The bill’s advocates have not thought through its wide array of harmful consequences like the simultaneous proliferation of hate speech, sexism, racism, and other types of awful but lawful content.”
President Joe Biden revoked former President Donald Trump’s bans on U.S. transactions with major Chinese apps. Biden replaced them Wednesday with an executive order directing the Commerce Department to evaluate “transactions involving” apps “that may pose an undue risk of sabotage or subversion of” U.S. information and communications technology. Last month, Biden revoked Trump’s social media order that sought an FCC rulemaking to clarify interpretation of Communications Decency Act Section 230 (see 2105140074).