Social Media – Attorney Evan Brown

September 5, 2024 First Amendment, Social Media

X gets Ninth Circuit win in case over California’s content moderation law

X sued the California attorney general, challenging Assembly Bill 587 (AB 587) – a law that required large social media companies to submit semiannual reports detailing their terms of service and content moderation policies, as well as their practices for handling specific types of content such as hate speech and misinformation. X claimed that this law violated the First Amendment, was preempted by the federal Communications Decency Act, and infringed upon the Dormant Commerce Clause.

Plaintiff sought a preliminary injunction to prevent the government from enforcing AB 587 while the case was pending. Specifically, it argued that being forced to comply with the reporting requirements would compel speech in violation of the First Amendment. Plaintiff asserted that AB 587’s requirement to disclose how it defined and regulated certain categories of content compelled speech about contentious issues, infringing on its First Amendment rights.

The district court denied plaintiff’s motion for a preliminary injunction. It found that the reporting requirements were commercial in nature and that they survived under a lower level of scrutiny applied to commercial speech regulations. Plaintiff sought review with the Ninth Circuit.

On review, the Ninth Circuit reversed the district court’s denial and granted the preliminary injunction. The court found that the reporting requirements compelled non-commercial speech and were thus subject to strict scrutiny under the First Amendment—a much higher standard. Under strict scrutiny, a law is presumed unconstitutional unless the government can show it is narrowly tailored to serve a compelling state interest. The court reasoned that plaintiff was likely to succeed on its claim that AB 587 violated the First Amendment because the law was not narrowly tailored. Less restrictive alternatives could have achieved the government’s goal of promoting transparency in social media content moderation without compelling companies to disclose their opinions on sensitive and contentious categories of speech.

The appellate court held that plaintiff would likely suffer irreparable harm if the law was enforced, as the compelled speech would infringe upon the platform’s First Amendment rights. Furthermore, the court found that the balance of equities and public interest supported granting the preliminary injunction because preventing potential constitutional violations was deemed more important than the government’s interest in transparency. Therefore, the court reversed and remanded the case, instructing the district court to enter a preliminary injunction consistent with its opinion.

X Corp. v. Bonta, 2024 WL 4033063 (9th Cir. September 4, 2024)

August 31, 2024 Copyright, Social Media

Court blocks part of Texas law targeting social media content

Two trade associations – the Computer & Communications Industry Association and NetChoice, LLC sued the Attorney General of Texas over a Texas law called House Bill 18 (HB 18), which was designed to regulate social media websites. Plaintiffs, who represented major technology companies such as Google, Meta and X argued that the law violated the First Amendment and other legal protections. They asked the court for a preliminary injunction to stop the law from being enforced while the case continued.

Plaintiffs challenged several key parts of HB 18. Among other things, law required social media companies to verify users’ ages, give parents control over their children’s accounts, and block minors from viewing harmful content. Such content included anything that promoted suicide, self-harm, substance abuse, and other dangerous behaviors. Plaintiffs believed that the law unfairly restricted free speech and would force companies to over-censor online content to avoid penalties. Additionally, they claimed the law was vague, leaving companies confused about how to comply.

Defendant argued that the law was necessary to protect children from harmful content online. He asserted that social media companies were failing to protect minors and that the state had a compelling interest in stepping in. He also argued that plaintiffs were exaggerating the law’s impact on free speech and that the law was clear enough for companies to follow.

The court agreed with plaintiffs on some points but not all. It granted plaintiffs a partial preliminary injunction, meaning parts of the law were blocked from being enforced. Specifically, the court found that the law’s “monitoring-and-filtering” requirements were unconstitutional. These provisions forced social media companies to filter out harmful content for minors, which the court said was too broad and vague to survive legal scrutiny. The court also noted that these requirements violated the First Amendment by regulating speech based on its content. But the court allowed other parts of the law, such as parental control tools and data privacy protections, to remain in place, as they did not give rise to the same free speech issues.

Three reasons why this case matters:

Free Speech Online: This case highlights ongoing debates about how far the government can go in regulating content on social media without infringing on First Amendment rights.
Children’s Safety: While protecting children online is a major concern, the court’s ruling shows the difficulty in balancing safety with the rights of companies and users.
Technology Lawsuits: As states try to pass more laws regulating tech companies, this case sets an important standard for how courts may handle future legal battles over internet regulation.

Computer & Communications Industry Association v. Paxton, — F.Supp.3d —, 2024 WL 4051786 (W.D. Tex., August 30, 2024)

July 10, 2024 First Amendment, Social Media

Supreme Court weighs in on Texas and Florida social media laws

In a significant case involving the intersection of technology and constitutional law, NetChoice LLC sued Florida and Texas, challenging their social media content-moderation laws. Both states had enacted statutes regulating how platforms such as Facebook and YouTube moderate, organize, and display user-generated content. NetChoice argued that the laws violated the First Amendment by interfering with the platforms’ editorial discretion. It asked the Court to invalidate these laws as unconstitutional.

The Supreme Court reviewed conflicting rulings from two lower courts. The Eleventh Circuit had upheld a preliminary injunction against Florida’s law, finding it likely violated the First Amendment. And the Fifth Circuit had reversed an injunction against the Texas law, reasoning that content moderation did not qualify as protected speech. However, the Supreme Court vacated both decisions, directing the lower courts to reconsider the challenges with a more comprehensive analysis.

The Court explained that content moderation—decisions about which posts to display, prioritize, or suppress—constitutes expressive activity akin to editorial decisions made by newspapers. The Texas and Florida laws, by restricting this activity, directly implicated First Amendment protections. Additionally, the Court noted that these cases involved facial challenges, requiring an evaluation of whether a law’s unconstitutional applications outweigh its constitutional ones. Neither lower court had sufficiently analyzed the laws in this manner.

The Court also addressed a key issue in the Texas law: its prohibition against platforms censoring content based on viewpoint. Texas justified the law as ensuring “viewpoint neutrality,” but the Court found this rationale problematic. Forcing platforms to carry speech they deem objectionable—such as hate speech or misinformation—would alter their expressive choices and violate their First Amendment rights.

Three reasons why this case matters:

Clarifies Free Speech Rights in the Digital Age: The case reinforces that social media platforms have editorial rights similar to traditional media, influencing how future laws may regulate online speech.
Impacts State-Level Regulation: The ruling limits states’ ability to impose viewpoint neutrality mandates on private platforms, shaping the balance of power between governments and tech companies.
Sets a Standard for Facial Challenges: By emphasizing the need to weigh a law’s unconstitutional and constitutional applications, the decision provides guidance for courts evaluating similar cases.

Moody v. Netchoice, et al., 144 S.Ct. 2383 (July 1, 2024)

March 27, 2024 Social Media

Negligence claim against Roblox for minors’ gambling moves forward

Plaintiffs sued defendant Roblox asserting various claims, including under RICO and California unfair competition law. Plaintiffs also claimed that Roblox was negligent by providing a system whereby minors were lured into online gambling.

Roblox moved to dismiss the negligence claim for failure to state a claim upon which relief may be granted. The court denied the motion to dismiss, allowing the negligence claim to move forward.

Roblox’s alleged involvement with online casinos

The gaming platform uses a virtual currency called “Robux” for transactions within its ecosystem. Users can purchase Robux for in-game enhancements and experiences created by developers, who can then convert their earned Robux into real money through Roblox. However, plaintiffs allege that online casinos accept Robux for gambling, thereby targeting minors. These casinos allegedly conduct sham transactions on Roblox to access a minor’s Robux, allowing the minors to gamble. When minors lose Robux in these casinos, the lost currency is converted back into cash, with Roblox allegedly facilitating these transactions and profiting from them. Plaintiffs claim Roblox is fully aware that its services are being exploited to enable illegal gambling activities involving minors in this way.

Why the negligence claim survived

The court observed that under California law, there is a fundamental obligation for entities to act with reasonable care to prevent foreseeable harm. Roblox argued that it was exempt from this duty. But the court rejected this argument, holding that that Roblox did indeed owe a duty to manage its platform responsibly to avoid harm, including by alerting parents about gambling risks.

Colvin v. Roblox Corporation, — F.Supp.3d —, 2024 WL 1268420 (N.D. Cal. March 26, 2024)

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March 14, 2024 First Amendment, Social Media

What does the “bill that could ban TikTok” actually say?

In addition to causing free speech concerns, the bill is troubling in the way it gives unchecked power to the Executive Branch.

Earlier this week the United States House of Representatives passed a bill that is being characterized as one that could ban TikTok. Styled as the Protecting Americans from Foreign Adversary Controlled Applications Act, the text of the bill calls TikTok and its owner ByteDance Ltd. by name and seeks to “protect the national security of the United States from the threat posed by foreign adversary controlled applications.”

What conduct would be prohibited?

The Act would make it unlawful for anyone to “distribute, maintain, or update” a “foreign adversary controlled application” within the United States. The Act specifically prohibits anyone from “carrying out” any such distribution, maintenance or updating via a “marketplace” (e.g., any app store) or by providing hosting services that would enable distribution, maintenance or updating of such an app. Interestingly, the ban does not so much directly prohibit ByteDance from making TikTok available, but would cause entities such as Apple and Google to be liable for making the app available for others to access, maintain and update the app.

What apps would be banned?

There are two ways one could find itself being a “foreign adversary controlled application” and thereby prohibited.

The first is simply by being TikTok or any app provided by ByteDance or its successors.

The second way – and perhaps the more concerning way because of its grant of great power to one person – is by being a “foreign adversary controlled application” that is “determined by the President to present a significant threat to the national security of the United States.” Though the President must first provide the public with notice of such determination and make a report to Congress on the specific national security concerns, there is ultimately no check on the President’s power to make this determination. For example, there is no provision in the statute saying that Congress could override the President’s determination.

Relatively insignificant apps, or apps with no social media component would not be covered by the ban. For example, to be a “covered company” under the statute, the app has to have more than one million monthly users in two of the three months prior to the time the President determines the app should be banned. And the statute specifically says that any site having a “primary purpose” of allowing users to post reviews is exempt from the ban.

When would the ban take effect?

TikTok would be banned 180 days after the date the President signs the bill. For any other app that the President would later decide to be a “foreign adversary controlled application,” it would be banned 180 days after the date the President makes that determination. The date of that determination would be after the public notice period and report to Congress discussed above.

What could TikTok do to avoid being banned?

It could undertake a “qualified divestiture” before the ban takes effect, i.e., within 180 days after the President signs the bill. Here is another point where one may be concerned about the great power given to the Executive Branch. A “qualified divestiture” would be situation in which the owner of the app sells off that portion of the business *and* the President determines two things: (1) that the app is no longer being controlled by a foreign adversary, and (2) there is no “operational relationship” between the United States operations of the company and the old company located in the foreign adversary company. In other words, the app could not avoid the ban by being owned by a United States entity but still share data with the foreign company and have the foreign company handle the algorithm.

What about users who would lose all their data?

The Act provides that the app being prohibited must provide users with “all the available data related to the account of such user,” if the user requests it, prior to the time the app becomes prohibited. That data would include all posts, photos and videos.

What penalties apply for violating the law?

The Attorney General is responsible for enforcing the law. (An individual could not sue and recover damages.) Anyone (most likely an app store) that violates the ban on distributing, maintaining or updating the app would face penalties of $5,000 x the number of users determined to access, maintain or update the app. Those damages could be astronomical – TikTok currently has 170 million users, so the damages would be $850,000,000,000. An app’s failure to provide data portability prior to being banned would cause it to be liable for $500 x the number of affected users.

February 16, 2024 Social Media

Kids Online Safety Act: Quick Facts

What is KOSA?

Senators Blackburn and Blumenthal have introduced a new version of KOSA – the Kids Online Safety Act, which seeks to protect minors from online harms by requiring social media companies to prioritize children’s safety in product design and offer more robust parental control tools. Garnering bipartisan support with 62 Senate cosponsors in the wake of a significant hearing with Big Tech CEOs, the bill emphasizes accountability for tech companies, transparency in algorithms, and enhanced safety measures. The legislation has been refined following extensive discussions with various stakeholders, including tech companies, advocacy groups, and parents, to ensure its effectiveness and alignment with the goal of safeguarding young internet users from bullying, harassment, and other online risks.

Critics of the statute argue that the KOSA, despite amendments, remains a threat to constitutional rights, effectively censoring online content and empowering state officials to target undesirable services and speech. See, e.g., the EFF’s blog post about the statute. They contend that KOSA mandates extensive filtering and blocking of legal speech across numerous websites, apps, and platforms, likely leading to age verification requirements. Concerns are raised about the potential harm to minors’ access to important information, particularly for groups such as LGBTQ+ youth, those seeking health and reproductive information, and activists. The modifications in the 2024 version, including the removal of the authority for state attorneys general to sue for non-compliance with the “duty of care” provision, are seen as insufficient to address the core issues related to free speech and censorship. Critics urge opposition to KOSA, highlighting its impact not just on minors but on all internet users who could be subjected to a “second-class internet” due to restricted access to information.

What does the proposed law actually say? Below are some key facts about the contents of the legislation:

Who would be subject to the law:

The statute would place various obligations on “covered platforms”:

A “covered platform” encompasses online platforms, video games, messaging applications, and video streaming services accessible via the internet and used or likely to be used by minors.
Exclusions from the definition of “covered platform” include common carrier services, broadband internet access services, email services, specific teleconferencing or video conferencing services, and direct wireless messaging services not linked to an online platform.
Entities not for profit, educational institutions, libraries, news or sports news websites/apps with specific criteria, business-to-business software, and cloud services not functioning as online platforms are also excluded.
Virtual private networks and similar services that solely route internet traffic are not considered “covered platforms.”

Design and Implementation Requirements

Covered platforms are required to exercise reasonable care in designing and implementing features to prevent and mitigate harms to minors, including mental health disorders, addiction-like behaviors, physical violence, bullying, harassment, sexual exploitation, and certain types of harmful marketing.
The prevention of harm includes addressing issues such as anxiety, depression, eating disorders, substance abuse, suicidal behaviors, online bullying, sexual abuse, and the promotion of narcotics, tobacco, gambling, and alcohol to minors.
Despite these protections, platforms are not required to block minors from intentionally seeking content or from accessing resources aimed at preventing or mitigating these harms, including providing evidence-informed information and clinical resources.

Required Safeguards for Minors

Covered platforms must provide minors with safeguards to limit communication from others, restrict access to their personal data, control compulsive platform usage features, manage personalized recommendation systems, and protect their geolocation data. (One has to consider whether these would pass First Amendment scrutiny, particularly in light of recent decisions such as the one in NetChoice v. Yost).
Platforms are required to offer options for minors to delete their accounts and personal data, and limit their time on the platform, with the most protective privacy and safety settings enabled by default for minors.
Parental tools must be accessible and easy-to-use, allowing parents to manage their child’s privacy, account settings, and platform usage, including the ability to restrict purchases and view and limit time spent on the platform.
A reporting mechanism for harms to minors must be established, with platforms required to respond substantively within specified time frames, and immediate action required for reports involving imminent threats to minors’ safety.
Advertising of illegal products such as narcotics, tobacco, gambling, and alcohol to minors is strictly prohibited.
Safeguards and parental tools must be clear, accessible, and designed without “dark patterns” that could impair user autonomy or choice, with considerations for uninterrupted gameplay and offline device or account updates.

Disclosure Requirements

Before a minor registers or purchases on a platform, clear notices about data policies, safeguards for minors, and risks associated with certain features must be provided.
Platforms must inform parents about safeguards and parental tools for their children and obtain verifiable parental consent before a child uses the platform.
Platforms may consolidate notice and consent processes with existing obligations under the Children’s Online Privacy Protection Act (COPPA). (Like COPPA, a “child” under the act is one under 13 years of age.)
Platforms using personalized recommendation systems must clearly explain their operation, including data usage, and offer opt-out options for minors or their parents.
Advertising targeted at minors must be clearly labeled, explaining why ads are shown to them and distinguishing between content and commercial endorsements.
Platforms are required to provide accessible information to minors and parents about data policies and access to safeguards, ensuring resources are available in relevant languages.

Reporting Requirements

Covered platforms must annually publish a report, based on an independent audit, detailing the risks of harm to minors and the effectiveness of prevention and mitigation measures. (Providing these audit services is no doubt a good business opportunity for firms with such capabilities; unfortunately this will increase the cost of operating a covered platform.)
This requirement applies to platforms with over 10 million active monthly users in the U.S. that primarily host user-generated content and discussions, such as social media and virtual environments.
Reports must assess platform accessibility by minors, describe commercial interests related to minor usage, and provide data on minor users’ engagement, including time spent and content accessed.
The reports should identify foreseeable risks of harm to minors, evaluate the platform’s design features that could affect minor usage, and detail the personal data of minors collected or processed.
Platforms are required to describe safeguards and parental tools, interventions for potential harms, and plans for addressing identified risks and circumvention of safeguards.
Independent auditors conducting the risk assessment must consult with parents, youth experts, and consider research and industry best practices, ensuring privacy safeguards are in place for the reported data.

Keep an eye out to see if Congress passes this legislation in the spirit of “for the children.”

February 15, 2024 First Amendment, Social Media

How did Ohio’s efforts to regulate children’s access to social media violate the constitution?

Ohio passed a law called the Parental Notification by Social Media Operators Act which sought to require certain categories of online services to obtain parental consent before allowing any unemancipated child under the age of sixteen to register or create accounts with the service.

Plaintiff internet trade association – representing platforms including Google, Meta, X, Nextdoor, and Pinterest – sought a preliminary injunction that would prohibit the State’s attorney general from enforcing the law. Finding the law to be unconstitutional, the court granted the preliminary injunction.

Likelihood of success on the merits: First Amendment Free Speech

The court found that plaintiff was likely to succeed on its constitutional claims. Rejecting the State’s argument that the law sought only to regulate commerce (i.e., the contracts governing use of social media platforms) and not speech, it held that the statute was a restriction on speech, implicating the First Amendment. It held that the law was a content-based restriction because the social media features the statute singled out in defining which platforms were subject to the law – e.g., the ability to interact socially with others – were “inextricable from the content produced by those features.” And the law violated the rights of minors living in Ohio because it infringed on minors’ rights to both access and produce First Amendment protected speech.

Given these attributes of the law, the court applied strict scrutiny to the statute. The court held that the statute failed to pass strict scrutiny for several reasons. First, the Act was not narrowly tailored to address the specific harms identified by the State, such as protecting minors from oppressive contract terms with social media platforms. Instead of targeting the contract terms directly, the Act broadly regulated access to and dissemination of speech, making it under-inclusive in addressing the specific issue of contract terms and over-inclusive by imposing sweeping restrictions on speech. Second, while the State aimed to protect minors from mental health issues and sexual predation related to social media use, the Act’s approach of requiring parental consent for minors under sixteen to access all covered websites was an untargeted and blunt instrument, failing to directly address the nuanced risks posed by specific features of social media platforms. Finally, in attempting to bolster parental authority, the Act mirrored previously rejected arguments that imposing speech restrictions, subject to parental veto, was a legitimate means of aiding parental control, making it over-inclusive by enforcing broad speech restrictions rather than focusing on the interests of genuinely concerned parents.

Likelihood of success on the merits: Fourteenth Amendment Due Process

The statute violated the Due Process Clause of the Fourteenth Amendment because its vague language failed to provide clear notice to operators of online services about the conduct that was forbidden or required. The Act’s broad and undefined criteria for determining applicable websites, such as targeting children or being reasonably anticipated to be accessed by children, left operators uncertain about their legal obligations. The inclusion of an eleven-factor list intended to clarify applicability, which contained vague and subjective elements like “design elements” and “language,” further contributed to the lack of precise guidance. The Act’s exception for “established” and “widely recognized” media outlets without clear definitions for these terms introduced additional ambiguity, risking arbitrary enforcement. Despite the State highlighting less vague aspects of the Act and drawing parallels with the federal Children Online Privacy Protection Act of 1998 (COPPA), these did not alleviate the overall vagueness, particularly with the Act’s broad and subjective exceptions.

Irreparable harm and balancing of the equities

The court found that plaintiff’s members would face irreparable harm through non-recoverable compliance costs and the potential for civil liability if the Act were enforced, as these monetary harms could not be fully compensated. Moreover, the Act’s infringement on constitutional rights, including those protected under the First Amendment, constituted irreparable harm since the loss of such freedoms, even for short durations, is considered significant.

The balance of equities and the public interest did not favor enforcing a statute that potentially violated constitutional principles, as the enforcement of unconstitutional laws serves no legitimate public interest. The argument that the Act aimed to protect minors did not outweigh the importance of upholding constitutional rights, especially when the statute’s measures were not narrowly tailored to address specific harms. Therefore, the potential harm to plaintiff’s members and the broader implications for constitutional rights underscored the lack of public interest in enforcing this statute.

NetChoice, LLC v. Yost, 2024 WL 55904 (S.D. Ohio, February 12, 2024)

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