Addendum to the Transcript of the Regulation of Social Media and Online Content Panel
At the time of EASL’s 2023 Annual Meeting on January 19, the United States Supreme Court was poised to soon thereafter decide Petitions for Certiorari filed in both the Paxton and Moody cases, which were among the cases discussed during our section’s CLE program.
However, rather than decide to grant or deny those cert petitions, on January 23, the Court instead invited the U.S. Solicitor General to file a brief that expressed the views of the federal government (which will hopefully be helpful to the Court in its decision-making). As of March 15, that government brief was still a work-in-progress.
This side step allowed the Court to first move forward on cert petitions already granted in both the Gonzalez and Taanmeh cases, by hearing oral arguments on February 21 and February 23, respectively. Written transcripts and audio files of oral arguments held in both of those cases are available at https://www.supremecourt.gov/oral_arguments/argument_audio/2022.
To the dismay of some observers of the Supreme Court oral arguments, questions asked by the justices seemed to focus more on economic rather than free speech issues. Decisions in both Gonzalez and Taanmeh are not expected until early summer. It is also expected that the Solicitor General will wait for the release of those decisions before filing its brief re Paxton and Moody.
These oral argument transcripts indicate that even Supreme Court justices do not know where to draw the line here, saying that Congress is better equipped to make calls about the safe harbor in 47 USC § ٢٣٠ (a/k/a the Communications Decency Act), among other critical digital policy issues.
Unfortunately, Congress has been talking for years about § 230 reform but has largely been grid-locked by partisan politics (e.g., with Republicans arguing that social media takes down too much speech and Democrats arguing that they could do more to limit harmful content), despite an apparent wide-spread consensus that lawmakers, rather than judges, should set such policies.1
However, unless and until Congress does act to help the law try to catch-up with ever-evolving technological innovations (and changes in the law always seem to lag those in technology), the courts will have to take the lead. However, like with the legislative process, the judicial process is also not immune to delay.
Even if the Supreme Court ultimately decides to grant review in Paxton and Moody (which seems likely, given the underlying split between the Firth and Eleventh Circuits, respectively), it almost certainly would not hear oral arguments in those cases until next term, with a decision to follow sometime in 2024. Until then, both the subject Texas and Florida state laws, respectively, will remain on hold.
Further down the litigation food chain, the related Bonta case discussed during our Annual Meeting panel remains pending in the Northern District of California federal court; and, it too is likewise moving slowly after the filing of the Complaint on December 14, 2022 by NetChoice. On February 17, 2023, NetChoice filed a Motion for a Preliminary Injunction (a copy of which is available at https://netchoice.org/wp-content/uploads/2023/02/Mot.-for-Prelim.-Inj.-NetChoice-v.-Bonta.pdf), to which the defendant State of California has not yet responded. Moreover, the parties have stipulated that the defendant’s time to respond to the Complaint will be extended to 30 days after a final and non-appealable order resolving the PI motion is released.
Meanwhile, closer to home, the Volokh case we also discussed has seen some recent movement. On February 14 (Valentine’s Day!), the Southern District of New York federal court granted a Motion for a Preliminary Injunction filed by the plaintiff. A copy of the court’s Opinion and Order is available at https://www.thefire.org/research-learn/opinion-and-order-granting-preliminary-injunction-volokh-v-james.
Essentially, the judge here blocked enforcement of a New York State law (GBL § 394-ccc) requiring social media platforms to create and disclose a mechanism for receiving complaints about “hateful conduct” online, saying it could have a “profound chilling effect” on speech that was not justified by a compelling government interest.
The SDNY judge rejected New York State’s argument that the statute regulated conduct, not speech; and he rejected arguments based on § 230 because the New York law does not impose liability for anything other than failing to create and disclose a complaint mechanism. This week, the defendant New York State filed a Notice of Appeal with the Second Circuit, as well as a Motion to Stay proceedings at the SDNY until after the PI appeal has been resolved.
Lastly, a related and intriguing new case was commenced in the Northern District of California federal court after EASL’s annual meeting. On February 14 (Valentine’s Day again!), a so-called Master Complaint was filed in an action with a somewhat unwieldy title of In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation. A copy of that Complaint is at https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=3760&context=historical.
This is a consolidated multi-district litigation involving attorneys representing almost 100 plaintiffs in products liability actions against certain social media companies, based on allegations that their “addictive and dangerous social media products” cause various mental health related harms as well as contribute to the sexual exploitation and abuse of children.
In an attempt to avoid § 230’s immunity shield, the 15-count Complaint instead primarily relies on strict liability and negligence arguments related to design defects and failure to warn, unfair trade practices and consumer protection laws, negligent and fraudulent concealment and misrepresentation, wrongful death, and a perennial favorite: loss of consortium.
The judge overseeing this case has stated that, while the defendants can file a motion to dismiss based on Section 230, she will not make any ruling on that issue until after the U.S. Supreme Court has weighed in on (and given the pendency of) Gonzalez and Taanmeh. Like much of life in New York City, let’s all hurry up and wait.
Barry Skidelsky, a former EASL Chair who organized and moderated this CLE panel on the Regulation of Social Media and Online Content, is a NYC based attorney and consultant with a business background and expertise in entertainment, media, communications and technology. Barry can be reached at [email protected] or
212-832-4800.
Endnotes
1. On March 8, the U.S. Senate Judiciary Committee Subcommittee on Privacy, Technology and the Law hosted a hearing titled Platform Accountability: Gonzalez and Reform, which was chaired by Senator Richard Blumenthal (D-CT); https://techpolicy.press/transcript-senate-subcommittee-hearing-on-platform-accountability-gonzalez-and-reform/.
