The U.S. House of Representatives appears about to vote on a bill forcing platforms to monitor users’ content and undermining Section 230, charter of freedom for online social media, all in the name of the widening campaign against real or imagined trafficking. [Electronic Frontier Foundation; Eric Goldman post and podcast and background from September; Adam Brandon, FreedomWorks; earlier here, etc.] More: John Samples, Cato; Cathy Gellis, TechDirt.
- Slightly afield from law, but good watching: Yale’s Nicholas Christakis speaks at Cato on his new book Blueprint: The Evolutionary Origins of a Good Society [Cato Forum]
- Tech platform regulation: “The ‘EARN IT’ Act Is Another Terrible Proposal to ‘Reform’ Section 230” [Eric Goldman and more] “Why Does The NY Times Seem Literally Incapable Of Reporting Accurately On Section 230?” [Mike Masnick, TechDirt]
- Author of new book, a Fordham lawprof, “wants the U.S. Supreme Court (and other federal courts) to enforce international law standards against backward American states and localities.” It’s a no-go, says Jeremy Rabkin [Law and Liberty reviewing Martin Flaherty, Restoring the Global Judiciary]
- Police transparency, Annie E. Casey Foundation, county liquor stores and bicycle licenses in Montgomery County, and more in my new Maryland policy roundup [Free State Notes]
- Yikes: former BigLaw partner who specialized in product liability subrogation claims sentenced to five years on charges of defrauding almost $3.5 million from insurers, manufacturers and others [Judy Greenwald, Business Insurance]
- Somehow missed this in 2018: Texas lawyer disbarred for barratry is re-elected while in jail [Lowering the Bar]
- Did the Supreme Court err in Employment Division v. Smith when it ruled that the Free Exercise Clause provides no exemption from burdens on religious conscience resulting from neutral and generally applicable laws? [Federalist Society Rosenkranz Debate with Michael McConnell and Philip Hamburger] Will the Court revisit Employment Division, as four Justices (Alito, Thomas, Gorsuch, and Kavanaugh) recently suggested? [Eric Baxter on Ricks v. Idaho Contractors Board]
- Maryland: “Don’t suspend drivers’ licenses over fines/fees unrelated to road safety” [my new Free State Notes]
- “A motley group of powerful companies have their knives out for Section 230, which shields platforms from lawsuits over content posted by users.” [David McCabe, New York Times; Gigi Sohn on Twitter]
- Did U.S. Customs destroy an African musician’s uniquely crafted instrument, or was it damaged in transit? Stories differ [Isobel van Hagen and Sarah Kaufman, NBC News; earlier here, here, here, etc.]
- R.I.P. David N. Mayer, emeritus professor at Capital Law and constitutional scholar who did important work on the views of the Founders and on the Contracts Clause [Roger Pilon, Cato]
- Another Emoluments suit fizzles for lack of standing, as I predicted three years ago [Megan Mineiro, Courthouse News (suit on behalf of individual members of Congress); sage advice from Grover Norquist]
- Despite warnings that its “copyright small claims” format could call forth a new troll business model and trip up ordinary Internet users, U.S. House of Representatives votes lopsidedly in favor of CASE Act [Makena Kelly, The Verge; Jonathan Bailey, Plagiarism Today; Katharine Trendacosta and Ernesto Falcon, Electronic Frontier Foundation, here, here, here, and here; Mike Masnick, TechDirt; Copyright Alliance and ABA president Judy Perry Martinez (supportive of bill); earlier]
- A social media platform that proposes to vet political claims for truthfulness will inevitably be drawn into taking sides in favor of some political factions against others [John Samples, Cato] You’d think New Yorker writers and New York Times editors would know better: no, free speech is not “killing us.” [same]
- “Top Myths About Content Moderation” [Eric Goldman] And a Cato Daily Podcast about content moderation with Thomas Kadri and Caleb Brown;
- “Attorney Who Sued Grindr Responds Extremely Poorly To The Supreme Court’s Rejection Of Her Section 230 Lawsuit” [Tim Cushing, TechDirt, on “victims’ lawyer” Carrie Goldberg; Cathy Gellis in January]
- It must be campaign season because here come the DMCA takedown notices over fair use [Paul Alan Levy]
- “Facebook isn’t liable for algorithm that put terrorist content in news feeds, 2nd Circuit rules” [ABA Journal, earlier here, etc.]
- Supreme Court should step in to protect freedom of association against California’s push to obtain donor identities for controversial groups [Ilya Shapiro and James Knight on Cato certiorari amicus brief in Americans for Prosperity Foundation v. Becerra, earlier]
- Civil liberties implications pretty dire if taken seriously: “Trump White House Mulls Monitoring the Mentally Ill for Future Violence” [Cato Daily Podcast with Julian Sanchez and Caleb Brown]
- Online platform liability: “all the ignorance about and hostility toward Section 230 of late has been infecting the courts.” Take for example the Ninth Circuit [Cathy Gellis, TechDirt]
- New book (not seen by me) by Bruce Cannon Gibney, The Nonsense Factory: The Making and Breaking of the American Legal System, draws a favorable review from Tyler Cowen and a less favorable one from Mark Pulliam;
- The loophole that lets 3.1 million persons — even millionaires — collect SNAP benefits even though they wouldn’t otherwise meet eligibility standards, and why some state agencies are fine with this [Angela Rachidi and Matt Weidinger, AEI]
- Mark your calendar for Harrisburg, Pennsylvania Nov. 16: I’ll be a featured speaker (as will author Dave Daley) at “Reclaiming Our Democracy: The PA Conference to End Gerrymandering” [Fair Districts PA]
- Second Circuit decision restricting public officials from blocking foes on Twitter is likely to discourage local electeds from sharing on social media, among its other problems [Gabriel Malor thread, John Samples/Cato, earlier]
- State of Washington defines lawyers’ pro bono work as “campaign expenditure,” even when it goes toward ballot access effort for a measure that never reached the ballot to be campaigned over. Review and clarification by high court sorely needed [Ilya Shapiro, Trevor Burrus and Patrick Moran on Cato amicus brief in Evergreen Freedom Foundation v. State of Washington]
- Freedom of press not just for those who own one: “Minnesota Supreme Court Holds That Nonmedia Speakers Are Fully Protected by First Amendment” [Eugene Volokh, defamation law]
- “Publishing Court Records Containing Home Address Not Actionable Invasion of Privacy” [Volokh on a pattern that sometimes gives rise to claims of “doxxing”]
- FOSTA, the law hailed as creating a pioneering exception to Section 230 for speech promoting “sex trafficking,” isn’t just your ordinary incursion on Internet freedom. It comes with a body count [Mike Masnick, Techdirt; related, Violet Blue, Engadget]
- If they’re farming, don’t you be filming: John Stossel on ag-gag laws [Reason video and story, earlier]
- “The Moral Panic Behind Internet Regulation” [Matthew Lesh, Quillette] New Congressional Research Service report on free speech and the regulation of social media content [Valerie C. Brannon, Congressional Research Service]
- “A social media campaign from the French government has been blocked by Twitter – because of the government’s own anti-fake-news law” [BBC via Elizabeth Nolan Brown]
- European authorities misidentify many pages on Internet Archive as “terrorist,” demand takedown [Mike Masnick, Techdirt]
- Armslist case is one in which Section 230 protected Second Amendment rights (that’s not a misprint for First) [John Samples, Cato; Eugene Volokh]
- Sen. Josh Hawley (R-MO)’s bill to require the largest social media firms to obtain certification of their political balance from the FTC, on pain of making them liable for all content posted by users, met with hail of dead cats from knowledgeable observers [Elliot Harmon/EFF, John Samples/Cato and more, Cathy Gellis, Joshua Wright thread, Eric Goldman, Raffi Malkonian on retroactivity and more, Elizabeth Nolan Brown/Reason] Related: Daphne Keller (“Build Your Own Intermediary Liability Law: A Kit for Policy Wonks of All Ages”);
- “We sympathize with Plaintiffs — they suffered through one of the worst terrorist attacks in American history. ‘But not everything is redressable in a court.'” [Sixth Circuit, Crosby v. Twitter, affirming dismissal of lawsuits seeking to hold Twitter, Facebook, and Google liable under Anti-Terrorism Act for abetting self-radicalization of perpetrator of Orlando Pulse attack]
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (Section 230 of the Communications Decency Act of 1996).
Those 26 words (and not a member of Congress) invented the internet as we know it. These words protect internet platforms from lawsuits based on user-generated content, allowing them to open their doors to a dizzying variety of sentiment and speech. Absent that sentence, social media platforms would have strong incentives to suppress any speech that might cause them legal woes. Or, in contrast, they might avoid legal liability by not moderating their forums at all, likely rendering them unusable. Jeff Kosseff tells the story of the institutions that flourished as a result of this powerful statute. He introduces us to those who created CDA 230, those who advocated for it, and those who were involved in some of the most prominent cases decided under the law. As section 230 and the platforms it protects face increasing scrutiny, Twenty-Six Words demystifies this little-known yet vital statute.
Commenting at the Cato forum for Jeff Kosseff and his book were: David Post, former professor of law, Temple Law School; Emma Llansó, Center for Democracy and Technology; and Cato’s John Samples as moderator.
More: Nick Gillespie, Reason (conservatives, liberals on Capitol Hill both turning against Section 230). And Eric Goldman has written recently about how the First Amendment is by no means a dependable backstop should incursions on Section 230 widen speech liability, and how the FOSTA law, which curtailed some Section 230 protections in the name of combating sex trafficking, is unlikely to achieve much toward that goal even as it prepares the way for further incursions on online liberty.
Rep. Devin Nunes (R-Calif.) is suing Twitter and several critics, including the anonymous proprietors of accounts styling themselves “Devin Nunes’s Mom” and “Devin Nunes’s Cow,” claiming defamation and other torts. Section 230, which protects Internet companies from liability for users’ postings, is likely to prove an obstacle to his claims against Twitter. [ABA Journal; Eugene Volokh, first (Section 230), second (“fighting words” doctrine inapplicable), and third (injunction that suspends entire Twitter account likely overbroad remedy) posts; Mike Godwin and Elizabeth Nolan Brown, Reason] More: Liz Mair (a defendant in suit), USA Today.
It’s worth emphasizing, in addition, that although the suit claims bias on Twitter’s part against political conservatives, were Nunes somehow to establish as a matter of law that the social media provider is obliged to intervene to remove harsh, unfair personal criticism of public figures, it would engage in much *more* removal of conservatives’ tweets and accounts than it does now.
Meanwhile, Don Blankenship, who lost a Republican Senate primary in West Virginia last year, is suing many media outlets and other organizations claiming defamation. Massey Energy, of which Blankenship had been CEO, “owned a mine where a 2010 explosion killed 29 miners. Blankenship spent a year in federal prison for violating safety regulations, which is a misdemeanor.” The suit says press outlets and critics erroneously described the candidate as a felon. [Anna Moore, WCHS]
- Was this an entry in a contest to draft the most unconstitutional bill? “Florida Bill Would Make It a Crime for Minors to Post Pictures of Guns on Social Media” [Eugene Volokh]
- “Everyone involved in politics has bad days, when one’s interests conflict with one’s ideals.” But conservatives should resist the temptation to call in government to regulate the Internet [John Samples] New Republican interest in antitrust explainable by wish to bust corporations considered unfriendly to Republicans [Steven Greenhut]
- Lafayette, La. mother jailed after posting video to social media showing fight between two high school students [Megan Wyatt, The Advocate; editorial; Dave Cohen, WWL]
- Suit over online harassment could puncture liability protections of Section 230, some hope and others fear [Elizabeth Nolan Brown]
- “So, to be blunt here, Warren’s campaign screwed up with its ad design [by] including the [Facebook] logo.” The really bad part, though, was the spinning afterward [Scott Shackford]
- Tweeting wrong sorts of things about gender can result in a visit from the British police, cont’d [Tom Potter, Ipswich Star (Suffolk; quoting local activist who “said police had a right to intervene if it was felt the posts were causing offence.”)] And another case from Hitchin, Hertfordshire [Martin Beckford, Daily Mail; earlier here, here, etc.
- Content moderation “is, in many ways, the commodity that platforms offer.” Will they be left free to offer it? [Will Duffield, Cato Journal, reviewing Custodians of the Internet by Tarleton Gillespie]