Section 230

The X platform thinks the district court “improperly applied” the U.S. Supreme Court’s 1985 decision in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio when it denied X’s motion for a preliminary injunction to block California from enforcing the state’s social media transparency law (AB-587) that took effect Jan. 1 (see 2401020002), said X’s mediation questionnaire Friday (docket 24-271) at the 9th U.S. Circuit Court of Appeals. Zauderer widened protection for commercial speech by striking down most of Ohio’s restrictions on advertising by attorneys. But Zauderer doesn’t “apply here” because the compelled speech at issue “is content-based, not commercial, not purely factual, and not uncontroversial,” said the questionnaire. X thinks AB-587 violates the First Amendment because it compels X “to engage in speech against its will,” it said. AB-587 also interferes with X’s “constitutionally protected editorial judgments,” it said. The statute also “has both the purpose and likely effect” of pressuring X to “remove, demonetize, or deprioritize” constitutionally protected speech that the state “deems undesirable or harmful,” it said. Because the California legislature passed AB-587, and because the parties disagree about its constitutional and legal validity, X doesn’t believe “this action is appropriate for mediation,” said the questionnaire. In denying the preliminary injunction motion, the district court held that X “failed to establish a likelihood of success on the merits” of its First Amendment and Section 230 preemption challenges, it said.

The idea that some types of social media use by some minors under certain conditions “can adversely affect some segment of this cohort is no basis for imposing state restrictions on all social media use by all minors,” said four Utah residents in a Jan. 12 complaint (docket 2:24-cv-00031) in U.S. District Court for Utah in Salt Lake City challenging the constitutionality of the Utah Social Media Regulation Act.

Internet platforms enjoy “enormous power over public discourse,” and Florida’s social media law, SB-7072, is “aimed at preventing the platforms from misusing that power,” said the Florida attorney general's U.S. Supreme Court brief Tuesday (docket 22-227) seeking to reverse the 11th Circuit's decision to facially invalidate SB-7072's neutrality and hosting provisions and its individualized-disclosure requirement.

The Republican National Committee plausibly alleges that Google’s conduct of relegating the RNC’s emails to supporters’ Gmail spam folders violates California’s Unfair Competition Law (UCL), said the RNC’s opposition brief Wednesday (docket 2:22-cv-01904) in U.S. District Court for Eastern California in Sacramento to Google’s Nov. 16 motion to dismiss the group’s first amended complaint.

U.S. District Judge Otis Wright for Central California in Los Angeles granted Grindr's motion to dismiss with prejudice and without leave to amend plaintiff John Doe’s child sex trafficking complaint against the operator of the dating app for LGBTQ+ people, said the judge's signed Dec. 28 order (docket 2:23-cv-02093). “The facts of this case are indisputably alarming and tragic,” it said. “No one should endure” what plaintiff Doe has. But “after careful review and consideration of the facts and applicable law,” the court "ultimately determines" that Doe’s claims are "precluded" by Section 230 of the Communications Decency Act, it said. In spring 2019, Doe was 15 and lived in a small town in Nova Scotia, where he “knew he was gay but was too ashamed to tell his parents,” said the order. “Seeking queer community,” Doe installed the Grindr app, misrepresented that he was older than 18 and created a user profile, it said. Grindr didn’t verify Doe’s age, it said. Over a four-day period, the app matched Doe with four “geographically proximate adult men,” it said. Doe and the men exchanged direct messages, personal information and sexually explicit photos, it added. Doe met each man and was sexually assaulted and raped, it said. After Doe’s mother confronted him, Doe told her he was on Grindr, that the app matched him with adult men and that they had raped him, it said. Three of the men are in prison for sex crimes, while the fourth remains at large, it said.

U.S. District Judge David Barlow for Utah in Salt Lake City granted in part the parties’ stipulated motion for an amended briefing schedule in NetChoice’s Dec. 20 motion for a preliminary injunction to block Utah Attorney General Sean Reyes (R) from enforcing the Social Media Regulation Act when it takes effect March 1 (see 2312230004), said the judge’s text-only docket order Tuesday (docket 2:23-cv-00911). Reyes’ deadline for filing an opposition to the injunction motion is Jan. 23, and NetChoice’s reply brief is due Feb. 6, said Barlow’s order. The parties were seeking deadlines of Jan. 31 and Feb. 12, respectively. Reyes’ response to the NetChoice complaint is due 21 days after Barlow rules on the motion for an injunction, as the parties requested, said the order. Due to the “issues being litigated," more extended deadlines "are unlikely to be workable" in light of the statute's fast-approaching March 1 effective date, said the order. NetChoice contends that the Utah statute is unconstitutional because it uses content-, viewpoint- and speaker-based definitions to restrict minors’ and adults’ ability to access and engage in protected speech. NetChoice also contends that the statute uses those definitions to restrict how certain websites organize, display and disseminate protected speech. NetChoice argues that the entire statute violates the First Amendment and the due process clause, and that Section 230 of the Communications Decency Act preempts parts of it.

Plaintiff-appellant Planet Green Cartridges faces a Tuesday deadline for filing its mediation questionnaire in the 9th U.S. Circuit Appeals Court appeal that seeks to reverse the district court’s Oct. 5 dismissal of its false advertising claims against Amazon, according to a time schedule order Thursday (docket 23-4434). Planet Green’s opening brief is due Feb. 6, and Amazon’s answering brief is due March 6, said the order. Planet Green alleges Amazon failed to deactivate accounts of third-party sellers that falsely advertised multiple brands of cheap Chinese-made “clone” ink cartridges to consumers as legitimate recycled OEM cartridges, with none of the quality or green benefits of the authentic recycled product. Planet Green describes itself as one of the last U.S.-based recycled cartridge manufacturers. It says Amazon's permissiveness of the falsely advertised product is hurting its business. The district court’s dismissal in Amazon's favor found that Section 230 of the Communications Decency Act provided Amazon immunity for all of Planet Green’s claims. The court also held that Planet Green failed to identify any false statement of fact Amazon had made, and that the negligence claim failed to allege a legal duty that Amazon owed to Planet Green.

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NetChoice is seeking a preliminary injunction blocking Utah Attorney General Sean Reyes (R) from enforcing the Utah Social Media Regulation Act against NetChoice members when the statute takes effect March 1 (see 2312180054), said its Dec. 20 memorandum (docket 2:23-cv-00911) in U.S. District Court for Utah in Salt Lake City.

Future Section 230 cases before the 5th U.S. Circuit Court of Appeals face "an extreme risk of judicial activism to overturn the existing 5th Circuit precedent and disrupt decades of Section 230 jurisprudence," Santa Clara University law professor Eric Goldman blogged Tuesday. Pointing to the dissent issued Monday in a 5th Circuit denial of an en banc rehearing motion involving a lawsuit against messaging app Snapchat (see 2312180055), Goldman said the seven dissenting judges' goal "seems to be to urge the Supreme Court to take this case." Written by Circuit Judge Jennifer Walker Elrod, the dissent criticized the 5th Circuit's previous "atextual interpretation" of Section 230, "leaving in place sweeping immunity for social media companies that the text cannot possibly bear." "Declining to reconsider this atextual immunity was a mistake," Elrod wrote.