The 3rd U.S. Circuit Court of Appeals should grant TikTok's request for a full-court review of a three-judge panel’s decision that Section 230 doesn’t protect its algorithmic recommendations (see 2408280014) (docket 22-3061), tech associations said in an amicus brief filed Tuesday. Signees included CTA, the Computer & Communications Industry Association, NetChoice, TechNet and the Software & Information Industry Association. Chamber of Progress, Engine and the Interactive Advertising Bureau also signed. TechFreedom signed a separate amicus brief supporting TikTok. The three-judge panel remanded a district court decision dismissing a lawsuit from the mother of a 10-year-old TikTok user who unintentionally hanged herself after watching a “Blackout Challenge” video on the platform. The platform can’t claim Communications Decency Act Section 230 immunity from liability when its content harms users, the panel found. That decision threatens the internet “as we know it,” the associations said in their filing: It jeopardizes platforms’ ability to “disseminate user-created speech and the public’s ability to communication online.” TechFreedom Appellate Litigation Director Corbin Barthold said the panel wrongly concluded that “because recommendations are a website’s own First Amendment-protected expression, they fall outside Section 230’s liability shield. A website’s decision simply to host a third party’s speech at all is also First Amendment-protected expression. By the panel’s misguided logic, Section 230’s key provision -- Section 230(c)(1) -- is a nullity; it protects nothing.”
Section 230
Federal and state legislators should take a light-touch regulatory approach to AI because there are unsettled questions about free speech and innovation potential, a Trump-appointed trade judge, a religious group and tech-minded scholars said Tuesday.
The 5th U.S. Circuit Court of Appeals should lift a district court injunction against Texas’ social media law and remand the case to assess the tech industry’s First Amendment challenge at a more granular level, Texas Attorney General Ken Paxton (R) argued Wednesday (docket 21-51178).
Statutory language in the 1991 Telephone Consumer Protection Act allowed the FCC to act against those responsible for illegal voice-cloning in the New Hampshire presidential primary election (see 2408210039), Chairwoman Jessica Rosenworcel said Wednesday.
Agreeing with X’s First Amendment arguments, the 9th U.S. Circuit Court of Appeals supported blocking a California law requiring social media companies to provide the state with semiannual disclosures of their content-moderation policies. In a Wednesday opinion, the appeals court reversed a U.S. District Court for Eastern California decision to deny X’s request for a preliminary injunction to block enforcement of AB-587. The 9th Circuit remanded to the district court with instructions to enter a preliminary injunction against the reporting requirement and to determine if other challenged provisions should also be enjoined. X is likely to succeed on the merits of its claim that the reporting requirement facially violates the First Amendment, found a 9th Circuit panel including Judges Milan Smith, Mark Bennett and Anthony Johnstone. The disclosure requirements “likely compel non-commercial speech and are subject to strict scrutiny, under which they do not survive,” Smith wrote (case 24-271). Because the court is reversing based on free-speech grounds, it needn’t address X's arguments that Section 230 of the Communications Decency Act preempts the law, the judge said. X and California AG Rob Bonta (D) didn’t comment by our deadline.
Expect the U.S. Supreme Court to issue a major interpretation on Section 230 as lower courts continue to make conflicting rulings about social media platforms’ free speech rights, legal experts told us in interviews.
Texas’ social media age-restriction law likely violates the First Amendment, a federal judge ruled Friday, partially blocking the measure and marking a victory for the tech industry (see 2408230014). The Computer & Communications Industry Association and NetChoice sued to block HB-18, which was set to take effect Sunday. The trade associations, which requested a preliminary injunction, met their burden in showing HB-18’s speech restrictions “fail strict scrutiny, are unconstitutionally vague, and are preempted by Section 230,” wrote Judge Robert Pitman, on behalf of the U.S. District Court for the Western District of Texas (docket 1:24-cv-00849). The decision enjoins HB-18’s monitoring and filtering provisions, but Pitman found the law’s remaining provisions can take effect because they don’t “unconstitutionally regulate a meaningful amount of constitutionally protected speech.” The court “recognized that this Texas law restricts protected speech in a way that likely violates the First Amendment and that it deserves the most stringent constitutional scrutiny,” said CCIA Chief of Staff Stephanie Joyce. “This ruling will ensure that internet users can continue accessing information and content online while we further prove that this law is unlawful and unconstitutional.”
TikTok engages in “expressive activity” when its algorithm curates content. Accordingly, the platform can’t claim Section 230 immunity from liability when that content harms users, the Third U.S. Circuit Court of Appeals ruled Tuesday (docket 22-3061). A three-judge panel remanded a district court decision dismissing a lawsuit from a mother of a 10-year-old TikTok user who unintentionally hung herself after watching a “Blackout Challenge” video on the platform. The U.S. District Court for the Eastern District of Pennsylvania dismissed the case, holding TikTok was immune under Communications Decency Act Section 230. The Third Circuit reversed in part, vacated in part and remanded the case back to the district court. Judge Patty Schwarz wrote the opinion, citing U.S. Supreme Court findings about “expressive activity” in Moody v. NetChoice (see 2402270072). SCOTUS found that “expressive activity includes presenting a curated compilation of speech originally created by others.” Schwarz noted the court’s holding that a platform algorithm reflects “editorial judgments” about compiling third-party speech and amounts to an “expressive product” that the First Amendment protects. This protected speech can also be considered “first-party” speech under Section 230, said Schwarz. According to the filing, 10-year-old Nylah Anderson viewed the Blackout Challenge on her “For You Page,” which TikTok curates for each individual user. Had Anderson viewed the challenge through TikTok’s search function, TikTok could have been viewed as more of a “repository of third-party content than an affirmative promoter of such content,” Schwarz wrote. Tawainna Anderson, the child’s mother who filed the suit, claims the company knew about the challenge, allowed users to post videos of themselves participating in it and promoted videos to children via an algorithm. The company didn’t comment.
A state court allowed an Iowa lawsuit against TikTok that claims the social media company duped parents about children’s access to inappropriate content. The Iowa District Court for Polk County in Des Moines denied TikTok’s motion to dismiss the state’s Jan. 17 petition in a ruling this week. While the court also denied Iowa’s motion for preliminary injunction, Iowa Attorney General Brenna Bird (R) said in a Wednesday statement that the decision is “a big victory in our ongoing battle to defend Iowa’s children and parents against the Chinese Communist Party running TikTok. Parents deserve to know the truth about the severity and frequency of dangerous videos TikTok recommends to kids on the app.” Bird claimed TikTok violated the Iowa Consumer Fraud Act through misrepresentations, deceptions, false promises and unfair practices, which allowed it to get a 12+ rating on the Apple App Store despite containing content inappropriate for kids aged 13-17. “Considering the petition as a whole, the State has submitted a cognizable claim under the CFA,” wrote Judge Jeffrey Farrell. TikTok doesn’t get immunity from Section 230 of the Communications Decency Act because the state’s petition “addresses only the age ratings, not the content created by third parties,” the judge added. However, Farrell declined to preliminarily enjoin TikTok since the state hasn’t “produced any evidence to show an Iowan has been viewed and harmed” by videos with offensive language or topics. The judge said, “The State presented no evidence of any form to show irreparable harm.” TikTok didn’t comment Wednesday.
Democratic National Convention delegates were expected to vote Monday night on the Democratic National Committee’s 2024 platform, which includes a pledge that promises the party will “keep fighting to reinstate” the FCC’s lapsed affordable connectivity program. The draft program repeatedly references President Joe Biden and his now-ended reelection bid because the DNC Platform Committee adopted it July 16, before the incumbent stepped aside in favor of new nominee Vice President Kamala Harris, the committee said when it released the document Sunday night. “23 million households received free or monthly discounts” via ACP, “saving $30 to $75 per month on high-speed broadband through the largest internet affordability program in history,” the Democrats’ proposed platform said: The program lapsed “because Republicans refused to act.” ACP's supporters are tempering their expectations that Congress will act to restore the subsidy this year despite the Senate Commerce Committee successfully advancing a surprise amendment July 31 to the Proper Leadership to Align Networks for Broadband Act (S-2238) that would allocate $7 billion to the program for FY 2024 (see 2408090041). The DNC platform references the Biden administration’s implementation of the 2021 Infrastructure Investment and Jobs Act, which included $65 billion for connectivity. “We’re bringing affordable, reliable, high-speed internet to every American household,” the platform said. “But a full 45 million of us still live in areas where there is no high-speed internet. Democrats are closing that divide.” Democrats are also “determined to strengthen data privacy,” through passage of a revamped “Consumer Privacy Bill of Rights” and an update of the Electronic Communications Privacy Act “to protect personal electronic information and safeguard location information.” The document notes Democrats' continued push to “fundamentally reform” Communications Decency Act Section 230 and “ensure that platforms take responsibility for the content they share.” It also mentions Democrats’ interest in “promoting interoperability between tech services and platforms, allowing users to control and transfer their data, and preventing large platforms from giving their own products and services an unfair advantage in the marketplace.”