Section 230

Robert F. Kennedy Jr.’s attempts to “resuscitate” his First Amendment case against Google by “deflecting" O’Handley v. Weber, and "relying heavily on an out-of-circuit decision” in Missouri v. Biden, “fall well short" of establishing that Kennedy's is "one of the exceptional cases in which a private entity will be treated as a state actor for constitutional purposes,’” said Google’s reply (docket 3:23-cv-03880) Tuesday in support of its motion to dismiss Kennedy’s first amended complaint (FAC) in U.S. District Court for Northern California in San Francisco. Kennedy, an independent 2024 presidential candidate, sued Google in July (see 2308030049), alleging it censored his viewpoints on vaccines and other subjects under pressure from the Biden administration. Kennedy’s state action allegations in the FAC are based on the same essential allegations and documents submitted with the temporary restraining order (TRO), “which fail to state a plausible state action claim” under the U.S. 9th Circuit Court of Appeals’ binding case law in O’Handley v. Weber, Google said. Kennedy’s plea for discovery “is an admission that his allegations are deficient,” said Google. It cited Rutman Wine v. E. & J. Gallo Winery, in which the court said the purpose of Rule 12(b)(6) is to “enable defendants to challenge the legal sufficiency of complaints without subjecting themselves to discovery.” The court should not judge Kennedy’s “defective allegations by a relaxed standard simply because, in Kennedy’s view, the state action doctrine is a ‘fact intensive inquiry,’” said the reply. Courts “regularly and consistently dismiss similar claims asserting ‘state action’ on the pleadings and as a matter of law without permitting any discovery,” it said. Also, the reply said, the “significant amount of company correspondence and deposition transcripts Kennedy already has obtained from discovery in Missouri v. Biden—far exceeding what plaintiffs typically obtain prior to a motion to dismiss—belies Kennedy’s claim that further discovery in this case is likely to prove fruitful for him,” said the reply. The court reviewed those materials in ruling on Kennedy’s TRO application and “concluded they reflected little more than ‘consultation and information sharing’ between federal officials and Google and could not establish state action,” it said. Kennedy’s suggestion that there might be “yet additional documents beyond the many innocuous communications produced in Missouri is wishful thinking,” it said. Kennedy has given “no credible argument for avoiding section 230 immunity,” said the reply, saying, “well-established law makes it clear that Section 230 applies to claims like this one seeking to hold Google liable for its decision to remove certain content from its platform.” The court should grant Google’s motion to dismiss with prejudice, it said.

The 9th U.S. Circuit Court of Appeals assigned case number 23-2969 to California Attorney General Rob Bonta’s (D) appeal of the district court's Sept. 18 decision granting NetChoice’s motion for a preliminary injunction to block him from enforcing AB-2273, the state’s Age Appropriate Design Code, said a docketing notice Monday. Besides blocking AB-2273's enforcement on First Amendment grounds, the district court also held that AB-2273 is preempted by the Children’s Online Privacy Protection Act and Section 230 of the Communications Decency Act. "We believe the district court decision is wrong, and that we should be able to protect our children as they use the internet,” said Bonta as he filed the appeal Oct. 18 (see 2310190030).

California Attorney General Rob Bonta (D) is appealing to the 9th U.S. Circuit Court of Appeals the district court's Sept. 18 decision granting NetChoice’s motion for a preliminary injunction to block him from enforcing AB-2273, the state’s Age Appropriate Design Code, on constitutional grounds (see 2309180063), said Bonta's notice of appeal Wednesday (docket 5:22-cv-08861) in U.S. District Court for Northern California in San Jose. The district court also held that AB-2273 is preempted by the Children’s Online Privacy Protection Act and Section 230 of the Communications Decency Act. Bonta is appealing the injunction "to defend California’s first-in-the-nation children’s online safety law," he said Wednesday. "We believe the district court decision is wrong, and that we should be able to protect our children as they use the internet. Big businesses have no right to our children’s data: childhood experiences are not for sale." NetChoice “will continue to defend the First Amendment and online privacy rights of Californians, their families and their businesses,” said NetChoice Director-Litigation Chris Marchese Wednesday in reacting to Bonta’s appeal. AB-2273 “undermines parental rights and unconstitutionally restricts free speech, while endangering the privacy and security of young people online -- failing to meet the law’s stated goals,” said Marchese."We look forward to seeing this bad policy permanently struck down and online speech and privacy for all Americans and young people fully protected.” AB-2273's co-sponsor, California Assemblymember Buffy Wicks (D), telegraphed that Bonta's appeal would be forthcoming when she reacted negatively last month to the injunction (see 2309190006).

Here are Communications Litigation Today's 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.

Social media companies, such as Google, have turned the free exchange of ideas “on its head,” said independent 2024 presidential candidate Robert F. Kennedy Jr. in a Friday reply brief (docket 3:23-cv-03880) in support of his motion for a preliminary injunction against Google to prevent it from removing his videos from YouTube. Kennedy is suing Google in a free speech suit after YouTube removed anti-vaccine videos of Kennedy’s that violated its medical misinformation policy.

Few courts have explored Section 230’s application to websites’ “algorithmic recommendations” in depth, reported the Congressional Research Service Thursday. But Congress “may consider” whether the broad Section 230 immunity currently recognized by courts “should apply to algorithmically sorted content or, alternatively, whether certain behavior or content should warrant different treatment under Section 230,” it said. Some members of the 117th Congress introduced several bills that would have addressed Section 230’s relationship with algorithmically sorted or recommended content, it said. Those bills “generally would have restricted the availability of Section 230’s protections” for platforms that recommend or promote certain content, it said. One of these bills, the Discourse Act, was reintroduced in the 118th Congress as S-921, it said. The free speech clause of the First Amendment “limits the government's ability to regulate speech,” said the report. Proposals that make Section 230’s protections unavailable for certain algorithmic operations “raise at least three questions,” it said. One is whether, if Section 230 is unavailable, hosting or promoting others’ speech on the internet “is itself protected under the First Amendment,” it said. If it is, the First Amendment “might restrict liability,” it said. A second question is whether modifying an existing liability regime “raises the same First Amendment concerns as enacting a law that directly prohibits or restricts speech,” said the report. A third question is, if such a proposal does raise First Amendment concerns, whether withholding Section 230’s protections for certain algorithmic operations affects speech based on its content, it said.

“Technology has evolved but the law has not," said defendants Atlas Marketing Partners and Atlas Investment Ventures in a Wednesday reply (docket 3:23-cv-00313) in support of their motion to dismiss and to strike the FTC’s February complaint (see 2302170050) in U.S. District Court for Southern California in San Diego. The complaint alleges a network of companies and individuals is responsible for delivering “tens of millions” of unwanted VoIP and ringless voicemail (RVM) phony debt service robocalls.

Here are Communications Litigation Today's 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.

Opening briefs from NetChoice and the Computer & Communications Industry Association are due Nov. 30 at the U.S. Supreme Court in their constitutionality challenges of the Florida (docket 22-227) and Texas (docket 22-555) social media laws, said a text-only scheduling order Tuesday. The Florida and Texas response briefs are due Jan. 16, said the order. Amicus briefs in support of NetChoice and CCIA are due Dec. 7, and amicus briefs in support of the states are due Jan. 23, said the order. SCOTUS granted the cert petitions of NetChoice and CCIA Sept. 29 (see 2309290020). They argue the Florida and Texas statutes are unconstitutional under the First Amendment, and they violate the commerce clause, the equal protection and due process clauses of the 14th Amendment, and are preempted by Section 230.

Robert F. Kennedy Jr.’s “latest bid to dictate the content moderation policies of a private entity" seeks the "remarkable relief" of preliminarily enjoining Google from exercising its discretion to remove videos conveying "dangerous COVID-19 and vaccine misinformation” on its YouTube platform, said Google’s opposition Monday (docket 3:23-cv-03880) in U.S. District Court for Northern California in San Francisco to Kennedy’s Sept. 25 motion for an injunction.