Former U.S. Sen. Rick Santorum and Protect The 1st Tell Supreme Court that Curtailing Section 230 Would Harm Americans’ First Amendment Rights
Former U.S. Senator Rick Santorum today joined with Protect The 1st to urge the U.S. Supreme Court to reject the petitioners’ argument in Gonzalez v. Google that the algorithmic recommendations of internet-based platforms should make them liable for users’ acts.
Santorum and Protect The 1st told the Court that curtailing Section 230 “would cripple the free speech and association that the internet currently fosters.” As a senator, Santorum had cast a vote for Section 230 to send the bill to President Bill Clinton’s desk for signature in 1996.
The Protect The 1st amicus brief informed the Court:
The brief described for the Court the harm to society that would occur if the Court were to disregard Section 230’s inclusion of First Amendment-protected editorial judgments. The brief tells the Court:
And there is no need for the Supreme Court to rewrite Section 230: As amici explained, Congress can choose to amend Section 230 if new challenges necessitate a change in policy. For example, Congress recently eliminated Section 230 immunity when it conflicts with sex trafficking laws, and Congress is currently debating a variety of bills that would address specific concerns about algorithm-based recommendations.
The Protect The 1st’s brief states: “The judiciary is never authorized to interpret statutes more narrowly than Congress wrote them, but it is especially inappropriate to do so when Congress is already considering whether and how to amend its own law.”
This Protect The 1st amicus brief answers the question before the U.S. Supreme Court in Gonzalez v. Google: “Does Section 230(c)(1) of the Communications Decency Act immunize interactive computer services when they make targeted recommendations of information provided by another information content provider?”
Th case pending before the Court centers around the murder of Nohemi Gonzalez, a 23-year-old American who was killed in a terrorist attack in Paris in 2015. A day after this atrocity, the ISIS foreign terrorist organization claimed responsibility by issuing a written statement and releasing a YouTube video that attempted to glorify its actions. Gonzalez’s father sued Google, Twitter, and Facebook, claiming that social media algorithms that suggest content to users based on their viewing history makes these companies complicit in aiding and abetting international terrorism.
No evidence has been presented that these services played an active role in the attack in which Ms. Gonzalez lost her life. A district court granted Google’s motion to dismiss the claim based on Section 230 of the Communications Decency Act, a measure that immunizes social media companies from content posted by users. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling.
The Supreme Court is scheduled to hear oral arguments Feb. 21.
CLICK HERE FOR THE AMICUS BRIEF
Jonathan Savas v. California State Law Enforcement Agency
Protect The 1st filed a brief on Friday in favor of a Supreme Court petition from 21 current and former lifeguards who are being forced to remain for years against their will as dues-paying members of a public employee union.
In September 2019, these California Department of Parks and Recreation lifeguards signed forms that authorized a public union, the California State Law Enforcement Agency, to enroll them as members and deduct union dues from their wages.
On the form was a vaguely worded statement that there were limitations to withdrawal from the union. This may have seemed like boilerplate since a Supreme Court opinion in June 2018, Janus v. American Federation of State, County, and Municipal Employees, held that public-sector unions cannot require non-member employees to pay agency fees covering the costs of even non-political union activities.
The form did not explain that if members wished to resign their union membership, they could only do so during a single thirty-day period every four years. This means the lifeguards who signed the form will be forced to remain union members until July 2023. Over this time, any political stance or activity taken by the union will be done in the name, and with the money, of these unwilling members.
The lifeguards sued to protect their First Amendment rights. In April, the federal Ninth Circuit Court of Appeals ruled against them.
In our brief before the Supreme Court, Protect The 1st informs the Court:
“The front page of the California State Law Enforcement Agency (‘CSLEA’) website currently sports a banner reading ‘My Union, My Choice!’ But when Petitioners asserted their choice to leave that union, the union and the state of California sang a different tune. California has a ‘maintenance of membership’ agreement with CSLEA, which forces employees to remain union members and pay full union dues for four years, all the while subsidizing union speech they no longer wish to support.
“Compelled speech and association—especially of a political nature—is not permissible under the First Amendment. And it is particularly shocking in this case, where the State seizes money from Petitioners’ paychecks and gives it to the union, which in turn supports political candidates and legislation through multiple election cycles.”
Our brief demonstrates three reasons why the Court should take up this case.
The “Member Maintenance” Agreement Compels Political Speech
California is forcing these government employees to support union speech, including political speech and candidates supported by the union, for up to four years. The repeated injuries to First Amendment rights over such a long period of time are especially egregious.
Even De Minimis Violations of the First Amendment Are Illegal
Compelling speech from American citizens for four years is unconscionable, but any compelled speech or association that violates the First Amendment, even if that compulsion includes only a few words or lasts for a few moments, is objectionable. As the Supreme Court held in 1976, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
The Lower Courts Are Eviscerating Janus’s Protections
Before the Ninth Circuit’s ruling against the lifeguards in April, the Third and Seventh Circuits had also imposed improper limits on the Supreme Court’s Janus decision. The Court had made it clear that “compelled subsidization of private speech seriously impinges on First Amendment rights.” Yet lower courts continue to allow such violations.
“This petition gives the high Court the means by which to reinforce the plain meaning of its ruling in Janus to the lower courts,” said Gene Schaerr, general counsel of Protect The 1st. “It upholds the obvious principle that the erosion of our First Amendment rights for even a minute is unacceptable – and the maintenance of that violation for years is obscene.”
Protect The 1st Joins Jewish, Muslim and Sikh Coalition to Defend the Religious Rights of Native Americans
Petition to Supreme Court in Slockish v. U.S. Department of Transportation
Protect The 1st today joined the Jewish Coalition for Religious Liberty, the Sikh Coalition, and the American Islamic Congress in petitioning the U.S. Supreme Court to review the harms inflicted on religious liberty by a Ninth Circuit Court of Appeals decision.
This petition concerns a case that began in 2008 when the U.S. Highway Administration, ignoring the objections of members of the Yakima Nation and Grande Ronde tribes, bulldozed Native ancestral burial grounds and dismantled a stone altar. The site was razed to widen U.S. Highway 26 in Oregon, while a tattoo parlor on the other side of the highway was left untouched.
After this desecration of their sacred lands, tribal members sought relief for this infringement in federal court. On Nov. 24, 2021, the Ninth Circuit Court of Appeals ruled the government would not be held responsible for destruction of the sacred site and dismissed the case as moot.
On Nov. 4, 2022, a coalition of Jews, Muslims, Sikhs, and Protect The 1st petitioned the Supreme Court to consider the threat to religious liberty, especially non-Western and Indigenous religious groups lacking political clout, by this cavalier treatment of a faith by the federal government.
The coalition’s petition demonstrates three errors driving the Ninth’s egregiously wrong decision, which threatens to gut the protections of the free exercise of religion under the First Amendment, the Religious Freedom Restoration Act (RFRA), and the Religious Land Use and Institutionalized Persons Act (RLUIPA).
First, The Ninth Circuit took a ‘our hands-are-tied approach.’ The court ignored that under RFRA, the government must rule out any possibility of remedying a religious freedom violation—including remedies that might partially satisfy the plaintiffs’ religious beliefs. The court uncritically accepted the government’s position that any relief would, somehow, involve “safety” regarding the highway easement.
For example, the Ninth Circuit refused to consider actions that could be taken without impairing highway safety, such as planting trees or medicinal herbs in the surrounding areas, or whether any part of the sacred site could be rebuilt outside of the narrow strip of land covered by the easement.
The coalition’s petition informs the High Court that the failure of the Ninth Circuit to consider the possibility of some measure of relief “is especially troubling here, where the Ninth Circuit was deciding the rights of minority religious adherents. Especially in such cases, courts must thoroughly evaluate what sorts of accommodations believers of minority faiths might find acceptable …”
Second, the Ninth Circuit’s decision ignores RFRA’s broad grant of authority to the judiciary to redress government interference with religious practice. The coalition brief explains that the Ninth Circuit decision here “flouts RFRA’s text” and Supreme Court precedent. “In holding that courts are powerless to redress statutory and constitutional violations because some remedies might (in the government’s view) implicate a state agency’s right-of-way, the Ninth Circuit got things exactly backwards.”
Instead, when federal courts confront federal actions that infringe on religious rights, the authority of courts to act in defense of those rights is strong.
Third, the Ninth Circuit took at face value the government’s claims that no remedy was feasible, instead of analyzing that claim under RFRA and RLUIPA. The coalition concludes: “If left standing, the Ninth Circuit’s decision would gut RFRA, permitting government actors to simply claim ‘infeasibility’ whenever they find accommodating religious practice inconvenient.”
“This case is a matter of heartbreak for American citizens of Native faiths,” said Gene Schaerr, general counsel of Protect The 1st. “It should also be a matter of deep concern for Sikhs, Jews and Muslims who wish to wear outward manifestations of their faith, as well as Christians and people of all faiths who want to preserve the protections of the Religious Freedom Restoration Act.”
When the founders drafted the First Amendment forbidding the abridgement of freedom of speech, “pamphlet wars” were common, with opposing sides handing out flyers and inviting passersby to listen to their opinions. Even in this age of tweets, most Americans recognize parks, sidewalks, and other public spaces as venues where people are allowed to hand out flyers and politely ask passersby to hear them out.
The federal courts, however, are split on the question of whether this form of expression, as old as colonial America, must be respected today under the First Amendment.
Concerned about this encroachment on speech, Protect The 1st petitioned the U.S. Supreme Court to hear a case from a street preacher who was silenced by university officials and police. This happened when evangelist Rodney Keister stood on city-owned sidewalks on a public street in Tuscaloosa, Alabama, near the University of Alabama. By agreement with the city, the UA campus police oversee a portion of the public sidewalk at an intersection near – but not on – the campus. The campus police more than once warned Keister that he could not preach on this public sidewalk. Fearing arrest, the preacher left but filed a lawsuit that was eventually heard by the Eleventh Circuit Court of Appeals.
The question as to whether a city-owned public sidewalk is a traditional public forum should be a slam-dunk in favor of free speech. But federal courts are split on the issue.
The Ninth, Tenth, and D.C. Circuits stick with the First Amendment analysis in these public forum cases, allowing speech. But other circuits hold that streets open to the public but adjacent to college and university buildings are limited public forums. Speech there can be restricted.
In one public forum case, the D.C. Circuit ruled against the government, which attempted to prohibit a demonstrator from holding a sign or distributing leaflets on the grounds of the U.S. Capitol building. While these grounds are obviously under the control of federal authorities, they are parklike and open to the public. Making this distinction, the D.C. court rejected any claim that the grounds were a “special type of enclave” that had to be protected from free expression. That court held that “because of their historical association with the exercise of free speech,” streets, parks and sidewalks are quintessential examples of public forums.
The Eleventh Circuit, on the other hand, held that even though the sidewalk in Tuscaloosa was open to the public and owned by the city, the maintenance of that sidewalk by the university necessarily involves the university’s intent toward expressive activity.
Protect The 1st asks the Supreme Court to consider if courts can “apply an amorphous and manipulable balancing test that relies on the government’s or its delegee’s intent to restrict speech as a justification for doing so.” We also informed the Court that by “denying ‘public forum’ status to a place that has traditionally been a public forum – sidewalks tied to public streets – the decision below threatens the First Amendment not merely in Tuscaloosa, but throughout the Nation.”
In our petition, Protect The 1st tells the Supreme Court that the “use of multifactor balancing tests makes the outcomes in any given case unpredictable and unprincipled. There is a better way. Relying on the text of the First Amendment, read in light of history and tradition, providers a surer approach.”
Protect The 1st believes this case not only raises important constitutional questions on which the courts of appeal are divided, but also presents an excellent vehicle for the Supreme Court to resolve them.
Protect The 1st is covering the growing likelihood that the split between the Eleventh and Fifth Circuit courts over the social media moderation content laws of Texas and Florida make it likely that the U.S. Supreme Court will resolve what decisions about political speech – if any – can be made by states.
As we reported last week, the Florida law – which would prohibit social media platforms from removing the posts of political candidates – was stricken by the Eleventh Circuit. The Texas law, which bars companies from removing posts based on a poster’s political ideology, was upheld by the Fifth Circuit. Both laws aim to address questionable content moderation decisions by Twitter, Meta, Google, and Amazon, by eroding the Section 230 liability shield in the Communications Decency Act.
Cert bait doesn’t get more appealing than this. Consider: A split between federal circuits. Laws that would protect free expression in the marketplace of ideas while simultaneously curtailing the speech rights of unpopular companies. Two similar laws with differences governing the moderation of political speech. The petition for SCOTUS reviewing the Texas and Florida laws practically writes itself.
We were not initially surprised when we heard reports the Supreme Court was stepping into the Section 230 fray. The Court, however, is set to examine a different set of challenges to Section 230 in a domain that is oblique to the central questions about political content posed by Texas and Florida.
The court will examine whether the liability protections of Section 230 immunize Alphabet’s Google, YouTube, and Twitter against apparently tangential associations in two cases involving terrorist organizations. Do the loved ones of victims of terror attacks in Paris and Istanbul have an ability to breach 230’s shield?
We don’t mean to diminish the importance of this question, especially to the victims. As far as the central questions of political content moderation and free speech are concerned, however, any decisions on these two cases will have modest impact on the rights and responsibilities of these platforms, a crucial issue at center of the national debate.
It is our position that taking away Section 230 protections would collapse online commerce and dialogue, while violating the First Amendment rights of social media companies. Love social media companies or hate them – and millions of people are coming to hate them – if you abridge the right of one group of unpopular people to moderate their content, you degrade the power of the First Amendment for everyone else.
We continue to press policymakers to look to the principles behind the bipartisan Platform Accountability and Transparency Act, which would compel the big social media companies to offer clear standards and due process for posters in exchange for continuing the liability protection of Section 230.
Conservatives are hopping mad about the perception that social media companies have trigger fingers when it comes to removing posts with right-leaning political content. Liberals loathe “hate speech” online and the posting of material they deem to be a threat to public safety, and want more of it removed. On the question of content moderation, lawmakers and federal courts are now tangled up like players in a game of Twister.
In the exercise of free speech, the First Amendment has long recognized the right of social media companies to make their own content moderation decisions without government interference. That settled principle is now being contested. A split in decisions of two federal circuit courts of appeal may lead to the U.S. Supreme Court taking the historic step of defining rules for how Facebook, Twitter, and other social platforms must moderate the stream of millions of daily posts.
Such a review became likely after Florida’s Attorney General filed a petition last week asking the Supreme Court to review a decision by the 11th Circuit Court of Appeals that overturned a Florida law prohibiting social media platforms from removing the posts of political candidates. The Republican AG was encouraged to make this move after the 5th Circuit Court of Appeals approved a Texas social media law that bars companies from removing posts based on a poster’s political ideology.
The 5th Circuit’s decision reverses years of First Amendment law by holding that the government can restrict private speech (in this case, forcing social media companies to carry content it deems offensive) without violating the First Amendment.
Those arguing for a greater role for government in content moderation maintain that a handful of social media companies have a dominant role in the national online debate. If Amazon, for instance, decides to delist a book, that author loses access to the most robust sales platform for their speech. It Twitter removes a politician’s posts, it has meaningfully hindered that politician’s ability to respond in the national debate in real time.
Countering those arguments is the reality that alternatives to these platforms do exist. If someone no longer enjoys access to Twitter, there's always Facebook or other platforms upon which views can be disseminated. This includes the opportunity for prominent politicians to start their own social media services where they have total control over the content on their site.
Moreover, the dominance of these media platforms does not make them common carriers like providers of phone or email services. For example, unlike the phone company, social media companies under Section 230 of the Communications Decency Act are empowered to restrict access to material that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” The words “harassing” and “objectionable” provide a lot of room for interpretation.
Section 230 gives social media platforms of all sizes liability protection against lawsuits over items posted by users. Without this protection, thousands of commercial and non-profit sites would fold instantly, killing the business model of much of the internet.
Social media companies warn, not without reason, that to be forced to post speech that goes against their written policies would not only constitute mandatory speech (violating the First Amendment), but it would also violate their ability to keep their sites relatively clean. It could force U.S. social media to run Russian propaganda on Ukraine, neo-Nazi posts denying the Holocaust, and posts encouraging children to take up risky behaviors.
What does all this add up to? One thing is certain – the status quo has broken down.
“We are in a new arena, a very extensive one, for speakers and for those who would moderate their speech. None of the precedents fit seamlessly,” wrote Judge Leslie Southwick, who dissented from the 5th Circuit’s opinion. Supreme Court Justice Samuel Alito has stated that the issue “will plainly merit this court’s review.”
As much as we might criticize how social media companies moderate their content, they have an absolute right under the First Amendment to manage the speech under their purview. So how can we strike a new and better balance?
As the law evolves, we urge jurists and lawmakers to give deeper consideration to the principles behind the Platform Accountability and Consumer Transparency Act, sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD). The PACT Act would require social media companies to publish and adhere to clear standards for their content moderation decisions in exchange for receiving the liability protections of Section 230. It would also give users due process, allowing them to appeal for quick resolution of complaints.
There are more than 100 state bills currently pending that are along the lines of the Texas and Florida legislation. Instead of opening the door to the potential for government to mandate content moderation standards, we hope that the Supreme Court will reaffirm longstanding First Amendment law by allowing social media sites to make their own content moderation decisions. At the same time, however, Congress should take a harder look at modifying the terms of liability protection in exchange for clearer standards in how content is moderated.
The one set of principles that must not be modified is the First Amendment.
Protect The 1st congratulates Justice Ketanji Brown Jackson on her swearing in. Now that she is on the nation’s highest court, Justice Jackson will be able to employ her well-honed jurisprudence to set strong precedents. We are hopeful Justice Jackson will use her authority to vigorously defend all the enumerated rights of the First Amendment.
SCOTUS Signals a Touchdown for Religious Liberty Ruling on “Praying Coach” Case Parallels Protect The 1st Brief
Kennedy v. Bremerton School District
The Supreme Court’s 6-3 majority opinion in favor of the right of Bremerton High School football coach Joseph Kennedy to pray after games on the 50-yard line is big win for religious liberty.
The issue is important because it involves how public institutions should manage the balance between the First Amendment’s guarantees of the free exercise of religion and speech against its prohibition of the establishment of religion. For decades, under the Lemon test, religious expression had come to be treated as radioactive material to be handled with an iron apron and tongs.
The majority opinion states:
“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
The majority rejected the idea that the prayer constituted government speech merely because Coach Kennedy was a government employee. “When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech ‘ordinarily within the scope’ of his duties as a coach … He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach.”
This logic led the Court to adopt a view that is almost a verbatim quote from the amicus brief Protect The 1st filed in this case. The court ruled that if the standard sought by the school district held, then:
“On this understanding, a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”
Quoting the First Amendment – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech” – the majority opinion concluded: “A natural reading of that sentence would seem to suggest the Clauses have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail.”
Protect The 1st applauds the Court for standing up to protect private speech and the free exercise of religion.