from the that's-not-how-any-of-this-works dept
Step aside Fifth Circuit Court of Appeals, there’s a new contender in town for who will give us the most batshit crazy opinions regarding the internet. This week, a panel on the Third Circuit ruled that a lower court was mistaken in dismissing a case against TikTok on Section 230 grounds.
But, in order to do so, the court had to intentionally reject a very long list of prior caselaw on Section 230, misread some Supreme Court precedent, and (trifecta!) misread Section 230 itself. This may be one of the worst Circuit Court opinions I’ve read in a long time. It’s definitely way up the list.
The implications are staggering if this ruling stands. We just talked about some cases in the Ninth Circuit that poke some annoying and worrisome holes in Section 230, but this ruling takes a wrecking ball to 230. It basically upends the entire law.
At issue are the recommendations TikTok offers on its “For You Page” (FYP), which is the algorithmically recommended feed that a user sees. According to the plaintiff, the FYP recommended a “Blackout Challenge” video to a ten-year-old child, who mimicked what was shown and died. This is, of course, horrifying. But who is to blame?
We have some caselaw on this kind of thing even outside of the internet context. In Winter v. GP Putnam’s Sons, it was found that the publisher of an encyclopedia of mushrooms was not liable for “mushroom enthusiasts who became severely ill from picking and eating mushrooms after relying on information” in the book. The information turned out to be wrong, but the court held that the publisher could not be held liable for those harms because it had no duty to carefully investigate each entry.
In many ways, Section 230 was designed to speed up this analysis in the internet era, by making it explicit that a website publisher has no liability for harms that come from content posted by others, even if the publisher engaged in traditional publishing functions. Indeed, the point of Section 230 was to encourage platforms to engage in traditional publishing functions.
There is a long list of cases that say that Section 230 should apply here. But the panel on the Third Circuit says it can ignore all of those. There’s a very long footnote (footnote 13) that literally stretches across three pages of the ruling listing out all of the cases that say this is wrong:
I may not be a judge (or even a lawyer), but even I might think that if you’re ruling on something and you have to spend a footnote that stretches across three pages listing all the rulings that disagree with you, at some point, you take a step back and ask:
Principal Skinner meme. First frowning and looking down with hand stroking chin saying: "Am I so out of touch that if every other circuit court ruling disagrees with me, I should reconsider?" Second panel has him looking up and saying "No, it's the other courts who are wrong."
As you might be able to tell from that awful footnote, the Court here seems to think that the ruling in Moody v. NetChoice has basically overturned those rulings and opened up a clean slate. This is… wrong. I mean, there’s no two ways about it. Nothing in Moody says this. But the panel here is somehow convinced that it does?
The reasoning here is absolutely stupid. It’s taking the obviously correct point that the First Amendment protects editorial decision-making, and saying that means that editorial decision-making is “first-party speech.” And then it’s making that argument even dumber. Remember, Section 230 protects an interactive computer service or user from being treated as the publisher (for liability purposes) of third party information. But, according to this very, very, very wrong analysis, algorithmic recommendations are magically “first-party speech” because they’re protected by the First Amendment:
This is just flat out wrong. It is based on the false belief that any “expressive product” makes it “first-party speech.” That’s wrong on the law and it’s wrong on the precedent.
It’s a bastardization of an already wrong argument put forth by MAGA fools that Section 230 conflicts with the argument in Moody. The argument, as hinted at by Justices Thomas and Gorsuch, is that because NetChoice argues (correctly) that its editorial decision-making is protected by the First Amendment, it’s somehow in conflict with the idea that they have no legal liability for third-party speech.
But that’s only in conflict if you can’t read and/or don’t understand the First Amendment and Section 230 and how they interact. The First Amendment still protects any editorial actions taken by a platform. All Section 230 does is say that it can’t face liability for third party speech, even if it engaged in publishing that speech. The two things are in perfect harmony. Except to these judges in the Third Circuit.
The Supreme Court at no point says that editorial actions turn into first-party speech because they are protected by the First Amendment, contrary to what they say here. That’s never been true, as even the mushroom encyclopedia example shows above.
Indeed, reading Section 230 in this manner wipes out Section 230. It makes it the opposite of what the law was intended to do. Remember, the law was written in response to the ruling in Stratton Oakmont v. Prodigy, where a local judge found Prodigy liable for content it didn’t moderate, because it did moderate some content. As then Reps. Chris Cox and Ron Wyden recognized, that would encourage no moderation at all, which made no sense. So they passed 230 to overturn that decision and make it so that internet services could feel free to engage in all sorts of publishing activity without facing liability for the underlying content when that content was provided by a third party.
But here, the Third Circuit has flipped that on its head and said that the second you engage in First Amendment-protected publishing activity around content (such as recommending it), you lose Section 230 protections because the content becomes first-party content.
That’s… the same thing that the court ruled in Stratton Oakmont, and which 230 overturned. It’s beyond ridiculous for the Court to say that Section 230 basically enshrined Stratton Oakmont, and it’s only now realizing that 28 years after the law passed.
And yet, that seems to be the conclusion of the panel.
Incredibly, Judge Paul Matey (a FedSoc favorite Trump appointee) has a concurrence/dissent where he would go even further in destroying Section 230. He falsely claims that 230 only applies to “hosting” content, not recommending it. This is literally wrong. He also falsely claims that Section 230 is a form of a “common carriage regulation” which it is not.
So he argues that the first Section 230 case, the Fourth Circuit’s important Zeran ruling, was decided incorrectly. The Zeran ruling established that Section 230 protected internet services from all kinds of liability for third-party content. Zeran has been adopted by most other circuits (as noted in that footnote of “all the cases we’re going to ignore” above). So in Judge Matey’s world, he would roll back Section 230 to only protect hosting of content and that’s it.
But that’s not what the authors of the law meant (they’ve told us, repeatedly, that the Zeran ruling was correct).
Either way, every part of this ruling is bad. It basically overturns Section 230 for an awful lot of publisher activity. I would imagine (hope?) that TikTok will request an en banc rehearing across all judges on the circuit and that the entire Third Circuit agrees to do so. At the very least, that would provide a chance for amici to explain how utterly backwards and confused this ruling is.
If not, then you have to think the Supreme Court might take it up, given that (1) they still seem to be itching for direct Section 230 cases and (2) this ruling basically calls out in that one footnote that it’s going to disagree with most other Circuits.
Filed Under: 1st amendment, 1st party speech, 3rd circuit, 3rd party speech, algorithms, fyp, liability, recommendations, section 230
Companies: tiktok
from the way-to-lose,-loser dept
None of this is advisable. And yet, it appears the Holtzman Vogel law firm advised Hovde to run with this. The law firm sent letters to the defendants — a long list that includes seven defendants who cannot possibly be found liable for running the ad produced by WinSenate PAC. The other defendant would be the producer of the ad, which has almost a zero chance of being successfully sued for the claims it made in the ad — not when the defendant is a public figure.
The letter sent to the stations makes a bunch of claims about the ad, which is fine. But the only correct target for this lawsuit is the creator of the ad, even though the Holtzman Vogel law firm goes out of its way with a bunch of footnotes in hopes of making the media company defendants feel like they could be held liable for running the PAC’s ad.
Wow. Sounds so very serious. But there’s really nothing actionable happening here, no matter how many footnotes were attached to this pile of words.
The first sentence is true: stations are not obligated to carry ads from political action groups. They are — if they’re subject to FCC regulations (over the air broadcasters) — obliged to carry ads from political candidates. But the thing about those ads is they’re political speech, which isn’t subject to the same “truth in advertising” standards private companies must adhere to.
As for the rest of the citations, they’re mostly meaningless. (And they only mean something if every TV station listed is FCC-licensed.) One citation points to this 1961 public notice posted by the FTC and FCC on broadcaster duty when it comes to truthful ads. And all it really says is that broadcasters need to make a good faith effort to prevent blatantly false (or blatantly offensive) ads from being aired on their stations. It does not require them to vet every claim made in the ad, nor does it expect them to recognize every false claim made by advertisers. Instead, it makes broadcasters aware the FTC and FCC will publish “alerts” when any entity raises these agencies’ suspicions and cautions that running ads from companies listed on “alerts” would raise “serious question[s]…as to the adequacy of the measures instituted and carried out by the licensee…” In other words, stations need to make an effort to stop false ads from airing, provide documentation of their efforts, and definitely avoid running anything from entities flagged by the feds.
The letter also cites this 1978 court opinion in support of its claims of station liability for the ads Eric Hovde is suing over. In this case, the FCC investigated Cosmopolitan Broadcasting, an FCC-licensed broadcaster that had basically turned over all of its content to third parties, allowing them to purchase air time to run their own content and ads. The FCC said that Cosmopolitan was still responsible for vetting this third party content, which it had clearly failed to do.
The upshot of the decision was Cosmopolitan being ordered to (re-reads decision) pencil-whip a new checklist written for it by the DC Circuit Appeals Court judge — one that stated who reviewed what third-party content and when. It’s hardly the sort of thing that should strike fear in the stations being sued by Hovde. Nothing in any of the citations suggests the stations can be held directly liable for WinState ad — at least not by Eric Hovde. The FCC and/or FTC could take action, but nothing indicates either of these entities ever suggested failing to vet ads is an actionable claim in civil court.
WinState PAC is the only legitimate defendant in this lawsuit, but that doesn’t mean Eric Hovde is any less likely to lose. The claims made in the ad were based on content published by ProPublica in one of its newsletters.
Now, that’s not exactly the same thing as “sheltering his wealth in shady tax havens around the world.” But it could be inferred from ProPublica article that Hovde doesn’t mind helping other people shelter their wealth in shady tax havens. The gist of the ProPublica reporting is that these investments seem a bit hypocritical when Hovde stated in ads during his first Senate run in 2012 that it was “wrong” that major corporations dodged corporate taxes and, in 2021, expressed support for a minimum corporate tax rate bill, claiming he’s always “hated” the fact that “companies like Goldman Sachs or Apple can put all their technology in offshore places and pay no taxes.”
Hovde can go ahead and pursue this lawsuit, but it’s a non-starter. The assertions made by the PAC might have been a bit off-base, but they’re far from the deliberate indifference needed to reach the actual malice standard Hovde will have to prove to secure a ruling in his favor. This is spray-and-pray litigation Hovde apparently hopes will silence one of his critics, either by forcing the PAC to pull the ad or intimidating TV stations into refusing to do business with WinState.
Hovde should know better. He’s a political candidate who has plenty of opportunities to counter the narrative pushed by his opposition. He’s got all the free speech he needs to accomplish this. It’s a shame he feels the best way to handle this is to deter the speech of others.
Companies: evening telegram company, fox, gray media group, ion media, nexstar, scripps media, sinclair broadcasating, winsenate pac
from the none-of-this-looks-good-for-anyone dept
In the battle between Elon Musk and Brazil, there are no heroes — only two sides engaged in an epic display of hypocrisy and overreach.
You may have heard that Brazil is threatening to ban ExTwitter from the country, possibly by tonight. This comes after Elon said that it was shutting down all operations in Brazil as the judiciary there continued to demand the company remove content that Elon didn’t want to remove. We wrote about some of the backstory in April, when Elon first said he was not going to obey the orders issued by Supreme Court Justice Alexandre de Moraes.
The orders focused on supporters of former Brazilian President Jair Bolsonaro, a very Trumpian figure. His supporters had tried to pull a similar “storming the Congress” kind of move in January of 2023, which was about as successful as the Trumpian storming of the US Capitol two years earlier. Moraes had ordered both that ExTwitter share information on some users who were talking about the storming of the Brazilian Congress, and that some of the accounts be blocked.
What was less reported was that a few days later, ExTwitter quietly agreed that it would comply with the order. But then… it appears it did not. So, more recently, Moraes suggested that he would order ExTwitter’s legal representative in Brazil to be jailed for failure to comply. This is when Elon said they were pulling all operations out of the country.
Now Moraes has responded by saying that Brazil might just ban all of ExTwitter in the country in response.
None of this is unprecedented. We’ve talked in the past about Brazil arresting Facebook officials because WhatsApp wouldn’t reveal info on certain users (because it couldn’t, due to encryption) and then banning WhatsApp (multiple times). So we’ve seen this before.
Either way, Elon does not seem to be taking it well. He posted an image of Moraes in jail, which I’m sure is not winning him many fans among Moraes’ supporters.
In response, there are reports suggesting that Moraes is also looking to freeze Starlink’s assets in Brazil. Of course, Starlink had just received a bunch of press for how it was being used by remote Amazon tribes.
In discussing this on Bluesky, I suggested that both sides are coming out of this looking extremely badly and got pushback, mainly from Brazilians and some people who dislike Musk.
The main argument is that it’s pretty clear that he is violating Brazilian law. First off, it involves disobeying orders coming from the Brazilian Supreme Court, which people insist must be obeyed. Also, the law in Brazil requires that to operate an internet service, you have to have an employee in the country.
But, here’s the thing: as we’ve argued for years, standing up and fighting back against unjust laws is what standing up for free speech and civil liberties is all about.
For example, lots of countries are now pushing for these laws that require internet companies to have local employees in order to arrest them if the company doesn’t do the government’s bidding. We have long pointed out how dangerous this is, as they are effectively “hostage laws” that enable authoritarian countries to put undue pressure on private companies.
Even if you claim that Brazil is somehow not authoritarian, blessing these kinds of laws enables authoritarian countries to use similar laws in similarly problematic ways. Are you okay with Russia having the same law (it does)? Or India?
Indeed, let’s look at what happened in India under Twitter’s previous regime as a comparison. Remember, Modi’s government had demanded that Twitter remove a bunch of tweets supportive of a massive protest by farmers in that country, and Twitter refused. The Indian government (like Moraes in Brazil) claimed at the time that the protests were threatening the stability of the Indian government.
When Twitter refused to pull down those tweets, the Modi government first threatened to jail Indian Twitter employees. Later, it raided Twitter’s offices in India. India threatened to ban Twitter in the country, and some politicians pushed Indians to move to a local competitor, Koo. Twitter fought back against those demands, and many people cheered them on for standing up for free speech and against undue pressure.
I don’t see how you separate these two stories. If Twitter was right to stand up to India when the Modi government made those demands, shouldn’t it stand up to Brazil when it makes similar demands? Isn’t that standing up for free speech?
The fact that Brazil has a hostage law, or that it has a law saying a single Supreme Court justice can demand content be removed, or that it can block a service entirely, or that same justice can freeze other unrelated assets… those are all bad? Those all seem like unjust powers that shouldn’t be allowed as they can easily be abused. Also, many of the original demands were secret, and if you are going to give a government the power to pull down content, the fact that those orders are secret is very concerning.
At the same time, yes, it appears that Elon is fighting all this in a dumb and antagonistic way. Making use of proper legal process upfront makes a lot more sense. Attacking the judge in question directly seems… unwise?
This is why I was saying that both sides look bad here. Musk also looks bad because of his selectiveness. Remember, he keeps claiming that his definition of free speech is “that which matches the law.”
He literally said it again earlier this week:
He notes that he wants ExTwitter to “support all viewpoints within the bounds of the laws of countries.”
Yet, here, he is against the laws in Brazil. At the very least, this highlights again how even Elon Musk doesn’t agree with Elon Musk’s definition of free speech, because it’s nonsensical. Supporting free speech sometimes means you have to stand up against unjust laws.
And, of course, as a reminder, before Elon took over Twitter (but while he was in a legal fight about it), he accused the company of violating the agreement because of its legal fight against the Modi government over their censorship demands. I know it’s long forgotten now, but one of the excuses Elon used in trying to kill the Twitter deal was that the company was fighting too hard to protect free speech in India.
And then, once he took over, he not only caved immediately to Modi’s demands, he agreed to block the content that the Modi government ordered blocked globally, not just in India.
So Elon isn’t even consistent on this point. He folds to governments when he likes the leadership and fights them when he doesn’t. It’s not a principled stance. It’s a cynical, opportunistic one.
But in the end, both sides look bad here. Elon’s response is childish and inconsistent with his own statements and actions elsewhere. And Brazil’s laws seem unjust, and its enforcement of the law seems extremely out of proportion with the alleged violations.
In the end, the real people who lose out are those in Brazil who have relied on ExTwitter as a useful service.