Hawley: SCOTUS Should Reject Platforms’ ‘Impenetrable Liability Shield’

Sen. Josh Hawley, R-Mo., urged the U.S. Supreme Court to affirm the 5th U.S. Circuit Court of Appeals' decision and interpret the First Amendment “in a manner consistent with the common-law legal principles that anchor the American constitutional framework,” he said in an amicus brief Tuesday (docket 22-555) in support of Texas Attorney General Ken Paxton (R) and the Texas social media law.

At the time Section 230 was enacted in 1996, it was “justified” on the theory that online platforms couldn’t “exercise publisher-level control over the speech generated by third-party users,” said Hawley, ranking member on the Senate Subcommittee on Privacy, Technology and the Law, Despite decades arguing that position, the tech platforms now take “precisely the opposite line,” said Hawley's brief. They claim their content hosting and curation decisions “are in fact expressive,” so much so “that they enjoy First Amendment protection,” it said.

SCOTUS shouldn’t “bless” the platforms’ contradictory positions, “much less constitutionalize them,” said the brief. Doing so “would effectively immunize the platforms from both civil liability in tort and regulatory oversight by legislators,” it said. Among other harms, such a ruling would “undercut” the May 18 SCOTUS decision in Twitter v. Taamneh (see 2305180049), it said. That decision “was predicated on the assumption that companies do not exercise substantial control over the content on their platforms,” it said.

Such a ruling would also disrupt the “policy logic” behind both Section 230 and the American “publisher-liability regime” as a whole, “granting vast and unprecedented powers to the tech industry,” said the brief. “That sector is not, and never has been, entitled to blanket immunity from both regulation and liability.”

Section 230's “factually-predicated liability shield” is an exception from the basic common-law rule, said the brief. The historical “norm” has been to hold individuals liable for the speech they choose to publish or amplify, it said. But in light of the “unique circumstances involved,” Congress, through Section 230, “modified those traditional liability rules in the digital context,” it said.

That modification of liability “was always a qualified modification,” with “limits,” said the brief. Congress never intended to extend “absolute immunity” to tech platforms “for whatever speech-related actions they might take,” it said. “Yet this is the result that, in principle, the platforms now seek,” it said.

SCOTUS shouldn’t grant tech platforms “an impenetrable liability shield,” said the brief. The platforms “seek to turn their qualified liability shield into an absolute one by rejecting the factual premises underlying Section 230 doctrine, while retaining its protections,” it said.

Traditional liability law and Section 230, as originally designed, “reflect a delicate balance between holding publishers and distributors accountable for harmful material they print or amplify, and allowing individual citizens to communicate freely,” including online, said the brief. “That balance made sound policy sense,” it said. The platforms “now aim to upend it,” it said.

Rather than serving as “passive hosts” of user expression, the platforms “are now apparently careful curators, intentionally selecting which expression to publish and which to disallow,” said the brief. The contradiction is “blatant,” it said. On one hand, there’s the longstanding proposition driving Section 230's “policy logic” that platforms aren’t traditional publishers “because they are merely conduits for others’ speech,” it said.

On the other hand, the platforms now argue that they are traditional publishers, and so their content moderation decisions constitute speech “worthy of First Amendment protection,” said the brief. The platforms now insist that the way they filter content is “intentionally expressive,” it said: “A far cry from the passive hosts of the 1990s, the web platforms of the 2020s claim that their curation is so bespoke as to become speech itself.”

It’s in the platforms’ interest “to maintain this contradiction,” said the brief. "Equivocating" on their role in publication allows the platforms “to invoke Section 230 to shield their behavior from private suits,” and simultaneously employ the First Amendment, shielding their behavior from the Texas social media law in the “instant case,” it said. But the platforms’ argument “completely undercuts the logic of Section 230.”