The U.S. District Court for the Western District of Louisiana shouldn't stay additional discovery pending a ruling on the motion to dismiss a lawsuit from Republican state attorneys general claiming Biden administration officials colluded with Big Tech to censor social media information, said U.S. District Judge Terry Doughty in a memorandum order (docket 3:22-cv-01213) filed Wednesday. The expedited preliminary discovery schedule is extended from Dec. 31 to Jan. 13, Doughty said. On Nov. 22, the DOJ dismissed the AGs’ evidence of “coercion,” including official statements about combating misinformation, suggestions about potential antitrust action against the companies and comments about the need to alter Communications Decency Act Section 230 (see 2211230075). The Wednesday memorandum order said four of eight authorized depositions in the case have been taken, but the 5th Circuit stayed the depositions of U.S. Surgeon General Vivek Murthy; Jen Easterly, Cybersecurity and Infrastructure Security Agency director; and Rob Flaherty, White House director of digital strategy. It also required the district court to: (1) analyze whether information sought could be addressed through alternative means, and (2) evaluate the prudence of ruling on the defendants’ motion to dismiss prior to authorizing additional depositions. Former White House Press Secretary Jen Psaki, who wasn't a party in the writ of mandamus, also objects to taking her deposition, said the order. The court authorized the plaintiffs to take the deposition of Murthy’s chief of staff, Eric Waldo, as an alternative. The defendants have provided “no reasonable alternative” to Psaki, saying she no longer works for the White House.
Section 230
The U.S. Office of the Solicitor General thinks Gonzalez v. Google should be remanded to the lower courts to consider whether YouTube’s recommendations make its owner Google liable under the Antiterrorism Act, it said in an amicus brief filed with the Supreme Court Wednesday (docket 21-1333).
Google is protected by Section 230 of the Communications Decency Act from claims by Prager University that the platform restricted ads and access to Prager’s YouTube videos over the university’s political and religious views, said a ruling from California’s Court of Appeal for the 6th Appellate District Monday. The ruling upheld a similar decision from a lower court. The appeals court rejected Prager arguments that Google is an information provider, that it was liable due to language in its terms of service, and that Section 230 is unconstitutional. “To the extent Prager’s claims principally rest on allegations that defendants violated a duty under state law to exercise their editorial control in a particular manner, defendants are immune under section 230 from the claims Prager brings in this suit,” said the court. “Social media platforms are generally permitted to decide for themselves what content to publish.”
Courts have interpreted the protections of Section 230 of the Communications Act too broadly and social media companies should be held responsible for the content recommended to users by their algorithms, said several amicus briefs filed at the U.S. Supreme Court in Gonzalez v. Google (docket 21-1333) Tuesday by advocacy groups, Sen. Josh Hawley, R-Mo., 26 states and a group of Israeli generals. “Far from discouraging terrorists, social media platforms actively assist their spread,” said the joint filing from former Israeli Minister of Defense Moshe Ya’alon and other retired Israeli military officers. “The same technology that connects dog lovers with chew-toy suppliers on social media platforms carries a parasitic byproduct that is deadly anti-social.”
Websites sending users unsolicited recommendations and creating links to content on their own platforms aren’t protected under Section 230 of the Communications Act because the information they're offering wasn’t created by a third party, argued the petitioners in the initial brief filed Wednesday with the U.S. Supreme Court in Gonzalez v. Google.
The 9th U.S. Circuit Court of Appeals' broad interpretation of laws against abetting terrorism would mean any provider of goods or services -- from banks to airlines -- could be held liable for treble damages if a terrorist patronized their businesses, said Twitter, Google and Facebook in briefs filed Tuesday in docket 21-1496 in their U.S. Supreme Court appeal of the ruling, Twitter v. Taamneh. “The Ninth Circuit embraced an atextual and boundless conception of ‘knowingly providing substantial assistance,’” said Google and Facebook in a joint filing. “That is not a tenable scope of liability,” said Twitter in a separate filing.
The Supreme Court should deny the tech industry’s attempt to throw out Florida’s entire social media content moderation law, Florida Attorney General Ashley Moody (R) argued last week before the high court in docket 22-393 (see 2210280049).
Consumers’ Research's challenges to several of the FCC’s Universal Service Fund contribution factors may be an attempt to force a decision by the Supreme Court on the nondelegation doctrine, said academics and attorneys in interviews. Some said the group brought the exact same argument in multiple courts of appeals to forum shop and engineer a circuit split.
A lawsuit from Republican state attorneys general claiming Biden administration officials colluded with Big Tech to censor social media information should be dismissed because the U.S. District Court for the Western District of Louisiana doesn’t have jurisdiction and the AGs failed to make a “plausible” First Amendment claim, DOJ argued Tuesday in 3:22-CV-01213 (see 2211220054).
Communications Litigation Today is providing readers with the top stories from last week in case you missed them. Each can be found by searching on its title or by clicking on the hyperlinked reference number.