Intellectual Property& Technology Journal Edited by the Technology and Proprietary Rights Group of Weil, Gotshal & Manges LLP

VOLUME 33 • NUMBER 4 • APRIL 2021

Shouting FIRE! (or Worse) on : The Interplay of the First Amendment and Government Involvement in Efforts to Limit or Remove Social Media Content

Kevin J. Duffy and Richard H. Brown

n late April 2020, as the United States entered its Murphy quickly clarified that the Murphy admin- Isecond month of grappling with the COVID- istration had not asked to remove any 19 global pandemic, so-called “lockdown orders,” posts, but confirmed that it had communicated directing residents to stay home as much as pos- with Facebook on the subject.5 sible to limit transmission of the virus, were in place The recent removal of anti-lockdown posts is in the vast majority of states.1 In response, a wave not the first instance in which Facebook has sought of “anti-lockdown” protests swept across several to address content on its platform that may have states, which often involved hundreds of protestors harmful societal effects, including misinformation gathering, in close proximity, in direct defiance of (or alleged misinformation) relating to elections. government-imposed restrictions on large public Other social media companies have engaged in events.2 similar efforts.6 Prior to the election, in mid-Octo- Facebook, a social media platform with over ber 2020, removed a story run by the New 2.6 billion monthly active users,3 announced that York Post concerning and his son, Hunter it would remove certain posts regarding anti- Biden.7 lockdown protests in California, New Jersey, and In January 2021, social media platforms made Nebraska, after consulting with officials in those international news by permanently banning then- states and determining that the protests ran afoul President , with Twitter citing a “risk of the states’ respective COVID-19 guidelines.4 of further incitement of violence” in the wake of A spokesman for New Jersey Governor Phil the storming of the U.S. Capitol by his supporters on January 6, 2020.8 announced that Facebook and Instagram had banned President Kevin J. Duffy is a partner at Day Pitney LLP, based in its Trump because the “risks of allowing the president New Jersey office. He is a member of the Communications Law to continue to use our service during this period Forum of the American Bar Association. Richard H. Brown is 9 a partner at Day Pitney, based in its New Jersey and New York are simply too great.” offices. He is chair of the firm’s Litigation It is likely that social media companies will con- Practice Group. tinue to make efforts to monitor and remove posts on their platforms by certain users, particularly POTENTIAL DEFENDANTS in relation to apparent or alleged misinformation To seek redress for a First Amendment violation, pertaining to public health matters, as well as elec- a plaintiff generally asserts a claim through either tions and other contentious, high-profile issues. It is 42 U.S.C. § 1983, if the violation was carried out conceivable that state governments, and the federal by a state or local government, or through a Bivens government, will communicate with social media action, if the violation was carried out by the fed- companies regarding these actions, and perhaps eral government.10 Both causes of action require a participate in some form in the removal of user plaintiff to demonstrate that they were deprived of content. Governmental participation in this effort a right secured by the Constitution or of the could include assistance in the identification of United States, and that the deprivation was caused potentially problematic content, on the more pas- by a person acting under color of law.11 sive end of the spectrum, to directing social media companies to remove certain content identified as particularly harmful or misleading, on the more As a general rule, the free speech active end. clause of the First Amendment is a guarantee against abridgment by the government, rather than by private This article assesses First Amendment actors. claims that may be asserted by social media users in the hypothetical scenario in which removal of their As a general rule, the free speech clause of the content by social media companies First Amendment is a guarantee against abridgment was done in coordination with, or at by the government, rather than by private actors.12 the direction of, government actors. Defendants in Section 1983 or Bivens lawsuits are therefore typically government actors. However, private conduct can be deemed “state action” if it This article assesses First Amendment claims is “fairly attributable to the State.”13 Thus, in appro- that may be asserted by social media users in the priate circumstances, private actors can be named hypothetical scenario in which removal of their defendants in First Amendment litigation. content by social media companies was done in To answer the “necessarily fact-bound inquiry” coordination with, or at the direction of, govern- of whether private conduct should be deemed state ment actors. action for purposes of Section 1983 and Bivens First, this article considers whether social media claims, the U.S. Supreme Court has devised a variety companies can be named, alongside government of tests: the “public function” test, the “state com- actors, as defendants, despite the general rule that pulsion” test, the “nexus” test, and the “joint action” the First Amendment restricts only government test.14 Although research does not disclose any cases conduct. to date in which application of these tests has led a Next, this article considers whether a social court to conclude that a social media company is a media company would be entitled to immunity state actor subject to Section 1983 / Bivens liabil- against such a claim under Section 230 of the ity, a review of the manner in which each test has Communications Decency Act. been applied to social media companies is instruc- This article then addresses the substantive merits tive in considering the circumstances under which of the First Amendment claim. conduct by a social media company may constitute While there has been much recent commen- state action. tary on Section 230, including whether it should The “public function” test provides that private be amended and whether the immunity it provides action may be deemed state action if it is tradition- should be more limited, treatment of those ever- ally the exclusive prerogative of the state, such as evolving Section 230 issues is beyond the scope of if the private actor holds public elections, governs this article. a town, or serves as an international peacekeeping

2 Intellectual Property & Technology Law Journal Volume 33 • Number 4 • April 2021 force.15 In Federal Agency of News LLC v. Facebook, of a “close nexus” between and the gov- Inc., the district court rejected the plaintiff’s conten- ernment, the plaintiff pointed to Google’s partici- tion that Facebook’s removal of its content should pation in a digital library project with the Library be deemed “state action” on the basis that Facebook of Congress,” to the alleged effect that the Library is essentially a public forum.16 The court ruled that of Congress had become “financially entwined the mere operation of a social media website does and dependent” upon Google.25 The district court not constitute performance of a traditionally gov- rejected this theory, holding that the “nexus” test ernmental function.17 This holding was in accord requires a close relationship between the State and with a series of other federal court decisions, reject- the challenged action, not merely between the State ing the notion that the mere operation of a pub- and the private actor.26 The digital library project lic forum by a private company constitutes “state had nothing to do with Google’s alleged manip- action,” such that the social media company could ulation of search results, and the plaintiff had not be held liable for First Amendment violations.18 alleged that the State had any involvement in the The “state compulsion” test asks whether the manipulation of search results, so Google had not government has exercised its “coercive power,” or engaged in “state action,” and could not be liable for otherwise “provided such significant encourage- a First Amendment violation.27 ment, either overt or covert,” that the conduct of a Finally, the “joint action” test asks “whether state private actor should “be deemed to be that of the officials and private parties have acted in concert in State.”19 In Abu-Jamal v. National Public Radio, the effecting a particular deprivation of constitutional plaintiff alleged that a public radio station violated rights.”28 This test can be satisfied either “by proving his First Amendment rights by deciding to cancel the existence of a conspiracy or by showing that the the broadcast of his audio commentaries follow- private party was a willful participant in joint action ing pressure exerted by members of Congress and with the State or its agents.”29 other federal and state government officials.20 He argued that such pressure, coupled with a statu- tory directive requiring the public radio station to Absent a significant jurisprudential exhibit “objectivity and balance” in its program- shift, it is unlikely that the conduct ming, transformed the otherwise private con- of a social media company would be duct into “state action,” thereby permitting a First deemed “state action” on the basis Amendment claim against the radio station.21 But that hosting a social media platform is the court rejected this argument, finding that the a “public function.” government officials who were alleged to have exerted pressure upon the radio station did not have “any legal control” over the radio station’s In Federal Agency of News, the plaintiff’s First actions, and that the statute requiring “objectivity Amendment claim against Facebook arose from and balance” did not actually compel the radio sta- Facebook’s decision to shut down “inauthentic” tion to cancel the broadcast.22 accounts on its platform that were believed to be The “nexus” test, which the U.S. Court of intended to inflame political tensions in the United Appeals for the Ninth Circuit has observed to be States, in a similar manner as accounts operated by “[a]rguably the most vague of the four approaches,” the Russia-based Internet Research Agency dur- asks whether there is “such a close nexus between ing the 2016 presidential election.30 The plaintiff, a the State and the challenged action that the seem- Russian corporation, challenged Facebook’s deci- ingly private behavior may be fairly treated as that sion to shut down its Facebook page.31 The plaintiff of the State itself.”23 asserted a “joint action” argument based on alle- In Kinderstart.com LLC v. Google, Inc., the plaintiff gations that Facebook shared its findings regard- brought a First Amendment claim against Google, ing Russia-linked accounts with U.S. authorities, alleging that Google interfered with its speech by was generally cooperating with U.S. authorities artificially manipulating the frequency at which its in related matters, and had provided assistance to website appeared in search results.24 To establish that the special counsel investigating interference in the Google was engaged in “state action” on the basis 2016 presidential election.32

Volume 33 • Number 4 • April 2021 Intellectual Property & Technology Law Journal 3 The district court found that these allega- Facebook was opposed – then it is also conceivable tions were insufficient for a finding that Facebook that “state action” could be found on a “state com- engaged in “state action.”33 The court held that pulsion” theory. even if Facebook had provided information to the government regarding particular accounts, such action would not amount to a conspiracy or joint Section 230 protects providers and action.34 Moreover, the plaintiff had not alleged that users of interactive computer service the government “directly or jointly conceive[d], from being held liable for blocking or facilitate[d], or perform[ed] any action” relating to restricting access to material. Facebook’s deletion of the plaintiff’s page on its platform.35 Applied to our hypothetical, in which the gov- In sum, although a social media company’s ernment has participated in or directed the removal removal of user content standing alone would of social media content, it is conceivable that a not constitute state action, and would not subject court would determine that the removal, though the social media company to liability on a First carried out by the social media company, was in Amendment claim, evidence of a government fact state action subject to the restrictions of the actor’s involvement in the removal – direct or First Amendment. Absent a significant jurispruden- indirect – could result in a finding of state action tial shift, it is unlikely that the conduct of a social sufficient to permit a First Amendment claim. media company would be deemed “state action” on Whether such a claim would ultimately prevail is the basis that hosting a social media platform is a a separate matter, addressed in the next part of this “public function.” But depending on the degree of article. government involvement in a social media com- pany’s removal of content, a court could certainly SECTION 230 IMMUNITY find state action on the basis of the “nexus” or “joint Section 230 protects providers and users of action” tests. interactive computer service from being held lia- For example, if Facebook identified a series of ble for blocking or restricting access to material. “anti-lockdown” posts, and provided that list to a Specifically, Section 230(c)(2)(A) provides that no state government, and the state government asked provider of an interactive computer service shall be or directed Facebook to remove the posts on the held liable for: basis that they ran afoul of the state’s COVID-19 guidelines, then it could fairly be said that Facebook any action voluntarily taken in good faith and the state government had “acted in concert” to to restrict access to or availability of mate- remove the posts, and that there was a “close nexus” rial that the provider or user considers to be between the State and Facebook’s conduct. obscene, lewd, lascivious, filthy, excessively Unlike in Federal Agency of News, these hypothet- violent, harassing, or otherwise objectionable, ical circumstances could permit the conclusion that whether or not such material is constitution- the government had helped Facebook conceive of ally protected.36 the action, had in fact facilitated the action, and par- ticipated directly in the performance of the action. In the past year, content restriction by social And unlike in Kinderstart.com, a plaintiff in such cir- media companies has risen to the forefront of the cumstances would have no difficulty in establish- debate about the role those companies should ing a “close nexus” between the state government play in combatting “misinformation” and “harm- and the challenged action. If there was evidence ful speech” on the internet. President Trump called that the government induced or even encouraged repeatedly for the repeal of Section 230, claiming the removal of the “anti-lockdown” content – for that it is a “serious threat to our National Security example, by offering to issue a press release lauding & Election Integrity,” and President Joseph Biden Facebook for its leadership in combating COVID- indicated during the campaign that he was support- 19 misinformation, or by agreeing to forego legisla- ive of the repeal of Section 230, though for different tive efforts to combat such information to which reasons.37

4 Intellectual Property & Technology Law Journal Volume 33 • Number 4 • April 2021 However, unless and until it is repealed, a social The issue, however, is whether Section 230 can media company will almost certainly invoke actually immunize a social media company from Section 230 of the Communications Decency Act a First Amendment claim. Courts have held that in response to a First Amendment claim based upon Section 230 is a complete defense to a wide array removal of user content. of claims, including, among others, libel,45 negli- Courts have held that Section 230 “immunizes gence,46 and harassment.47 providers of interactive computer services against On the issue of whether Section 230 provides liability arising from content created by third par- immunity from constitutional claims, courts have ties.”38 It was enacted by Congress to address the split. In Federal Agency of News, the district court in concern, which arose in the early case law of the California interpreted Ninth Circuit precedent to internet era, that websites would be deemed “pub- stand for the proposition that Section 230 immu- lishers” of content based on their good faith attempts nity does not grant immunity for constitutional to remove offensive content, and would thereby be claims, including the First Amendment claim at forced to entirely refrain from removing such con- issue in that case.48 On that basis, the district court tent in order to avoid facing liability as a publisher.39 dismissed the plaintiff’s non-constitutional claims Thus, under Section 230, “lawsuits seeking to based upon Section 230 immunity, and analyzed hold a service provider liable for its exercise of a the First Amendment claim separately, conclud- publisher’s traditional editorial functions – such as ing that it failed on the merits.49 Strangely, how- deciding whether to publish, withdraw, postpone or ever, the Ninth Circuit opinion cited by the district alter content – are barred.”40 Where appropriately court – Fair Housing Council of San Fernando Valley invoked, Section 230 mandates dismissal of a claim if v. Roommates.com, LLC – did not involve constitu- the following elements are satisfied: “(1) Defendant tional claims, or even opine on whether Section is a provider or user of an interactive computer ser- 230 would provide immunity from such claims.50 vice; (2) the information for which Plaintiff seeks And the Ninth Circuit does not appear to have had to hold Defendant liable is information provided occasion to squarely address the issue. by another information content provider; and (3) Plaintiff’s claim seeks to hold Defendant liable as the publisher or speaker of that information.”41 Based upon this split, it is uncertain There is little question that any social media in our hypothetical whether Section company in our hypothetical would be eligible to 230 would apply to immunize a invoke Section 230. As to the first element, “interac- social media company against a tive computer service” is defined in Section 230 as First Amendment claim based upon “any information service, system, or access software removal of content. provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access Nonetheless, the approach taken by the dis- to the Internet.”42 trict court in Federal Agency of News mirrors the In Federal Agency of News, the district court con- approach of district courts in New Hampshire cluded, as other courts have also held, that Facebook and West Virginia, each of which applied Section is “unquestionably an interactive computer service.” 230 to dismiss non-constitutional claims against The court found that the second and third prongs a social media defendant, and addressed the First were also satisfied because the claim was based on Amendment claims on the merits.51 Similarly, in a Facebook’s removal of content (a publishing func- case in which Facebook argued that Section 230 tion) that the plaintiff (another information con- provided immunity against constitutional and non- tent provider) had posted on Facebook.43 The same constitutional claims, the New Jersey district court analysis would apply to a First Amendment claim dismissed the First Amendment claim on the merits, against a social media company in our hypotheti- and did not reach the question of immunity.52 cal, and the social media company would there- In contrast, at least three other district courts in fore almost certainly be eligible for Section 230 California have held (before and after the Federal immunity.44 Agency of News decision) that Section 230 does

Volume 33 • Number 4 • April 2021 Intellectual Property & Technology Law Journal 5 immunize a defendant from First Amendment (3) Whether the removal of the content constitutes claims. a content-based restriction on speech. In Ebeid v. Facebook, Inc., the district court dis- missed a First Amendment claim against Facebook Protected Speech because the plaintiff failed to allege state action, The beginning of any First Amendment analysis but also based on Section 230 immunity, which is the determination of whether the speech at issue the court applied across the board to the First is actually protected by the First Amendment.57 Amendment claim and statutory claims relating to Speech relating to “matters of public concern” is Facebook’s content-based restrictions.53 at the core of First Amendment protection,58 but Similarly, in Brittain v. Twitter, Inc., the district a broad range of other types of speech is also pro- court held that Section 230 immunized Twitter tected.59 In light of the difficulty in distinguishing from a series of claims, including a First Amendment speech that does or does not relate to “matters of claim.54 public concern,” and the danger of trying, the gen- Finally, in Lewis v. Google LLC – the only one of eral rule is that the protections to be afforded to these three cases to have been decided after Federal speech should not depend on societal judgment Agency of News – the district court dismissed a First regarding its perceived virtue or moral correct- Amendment claim against Google on the merits, ness.60 Accordingly, “almost all speech” is protected but also based on Section 230 immunity.55 by the First Amendment.61 There was no discussion in these cases of whether Moreover, the Supreme Court has recognized Section 230 immunity could or should apply to that social media is a “prime location for First constitutional claims. Amendment speech.”62 Various types of speech Based upon this split, it is uncertain in our on social media have thus been afforded First hypothetical whether Section 230 would apply to Amendment protection, including clicking the immunize a social media company against a First “like” button on Facebook,63 publishing tweets Amendment claim based upon removal of content. critical of the president,64 a student’s fake MySpace If applied – as in Ebeid, Brittain, and Lewis – the profile parodying her middle-school principal with analysis would proceed no further, and the claim crude language,65 and a Facebook post containing would be dismissed. If not applied, then the First an image of the Confederate flag, captioned “It’s Amendment claim would be addressed on the mer- time for the second revolution.”66 its, in the manner described below. There are, however, “well-defined and narrowly limited classes of speech” – including obscenity, MERITS OF THE CLAIM incitement, so-called “fighting words,” , As noted in the first part of this article, a plain- , fraud, speech integral to crimi- tiff asserting a Section 1983 / Bivens claim must nal conduct, and speech presenting a grave and demonstrate that he or she was deprived of a right imminent threat that the government has the power secured by the Constitution or laws of the United to prevent – that are not afforded First Amendment States, and that the deprivation was caused by a protection.67 person acting under color of law.56 To satisfy the first prong in the context of our hypothetical First Amendment claim, a plaintiff will be required to Notably, while “fraud” is a recognized demonstrate that the government-assisted removal exception to First Amendment of its content from a social media platform resulted protection, mere falsity does not in a violation of their First Amendment rights. In strip speech of its First Amendment assessing such an argument, courts would likely protections. consider several issues:

(1) Whether the content at issue is protected speech; Notably, while “fraud” is a recognized exception to First Amendment protection, mere falsity does not (2) Whether the content was posted in a forum strip speech of its First Amendment protections.68 owned or controlled by the government; and For example, the Supreme Court declared the

6 Intellectual Property & Technology Law Journal Volume 33 • Number 4 • April 2021 Stolen Valor Act unconstitutional because it crimi- conceivably approach the line of incitement, and nalized a person’s false assertion that they received a therefore be removed from the ambit of First decoration or medal authorized by Congress to be Amendment protection, but only if it could also be awarded to members of the military.69 shown that such posts were intended to provoke False speech pertaining to elections is also pro- readers to imminently violate the law, and that they tected by the First Amendment.70 In Susan B. were in fact likely to have that effect. In this regard, Anthony List v. Driehaus, the U.S. Court of Appeals legal scholarship has noted that the imminence for the Sixth Circuit determined that an Ohio stat- requirement of Brandenburg is particularly difficult ute prohibiting false statements regarding political to satisfy in cases involving internet speech, where candidates was an unconstitutional infringement words are often “heard” long after they are “spo- upon the First Amendment.71 ken,” and where a poster’s intent can be difficult to Moreover, while incitement is among the lim- ascertain.76 ited classes of speech that is not afforded First Amendment protection, the standard for incite- Forum Analysis ment is quite high. In its seminal case on the issue, In the likely event that a court finds that the the Supreme Court held in Brandenburg v. Ohio that social media content at issue in our hypothetical is advocacy of violent means to effect political or eco- protected by the First Amendment, its next con- nomic change is protected by the First Amendment, sideration may be whether to apply forum analy- except where such advocacy is “directed to incit- sis, pursuant to which courts will apply different ing or producing imminent lawless action and degrees of scrutiny to speech restrictions depending is likely to incite or produce such action.”72 on where the speech occurs. Forum analysis is based Applying Brandenburg, a district court in Virginia on the principle that “[n]othing in the Constitution recently concluded that the prosecution of white- requires the Government freely to grant access to all supremacists under the Federal Anti-Riot Act, based who wish to exercise their right to free speech on upon allegations that they incited immediate acts of every type of Government property without regard violence at political rallies, did not run afoul of the to the nature of the property or to the disruption First Amendment because the incitement was not that might be caused by the speaker’s activities.”77 protected speech.73 In a “traditional public forum,” meaning a place In contrast, then-candidate Donald Trump’s that has historically been devoted to assembly and repeated statements to a rally audience, in refer- debate, courts will apply strict scrutiny, meaning that ence to protestors, to “get ’em out of here,” did not the government may exclude speakers, or impose constitute incitement, and were protected by the content-based restrictions on speech, only if such First Amendment, because they did not specifically restrictions are narrowly tailored to serve a compel- advocate imminent violence or lawless action.74 ling governmental interest (i.e., strict scrutiny).78 The fact that certain rally attendees did then use force against the protesters did not affect this con- clusion, as “the subjective reaction of any particular In a “nonpublic forum,” meaning listener cannot dictate whether the speaker’s words a place that has not traditionally enjoy constitutional protection.”75 or historically been designated for Applying these principles to our hypotheti- expressive activity, government cal, it is likely that the speech at issue would be can restrict speech so long as the protected by the First Amendment. Applying the restrictions are reasonable and Supreme Court’s reasoning in the Stolen Valor case, viewpoint-neutral. and that of the Sixth Circuit in Susan B. Anthony List, election-related misinformation would likely be deemed protected speech, regardless of its falsity. In a “nonpublic forum,” meaning a place that has Misinformation relating to COVID-19 would also not traditionally or historically been designated for be protected. expressive activity, government can restrict speech Posts relating to “anti-lockdown” measures, if so long as the restrictions are reasonable and view- they advocated for violence or lawlessness, could point-neutral.79 And finally, in a “designated public

Volume 33 • Number 4 • April 2021 Intellectual Property & Technology Law Journal 7 forum,” meaning property which the government In contrast to these cases, a court in Kentucky has opened for expressive activity to the public, or found that forum analysis did not apply to the some segment of the public, the government’s abil- governor’s conduct in blocking plaintiffs from his ity to restrict speech depends on whether the speech Facebook page and Twitter account because those at issue falls within the class to which the designated forums were privately owned forums for the gover- public forum is made available.80 If so (the “internal nor’s personal speech.89 standard”), then restrictions on speech are subject Returning to our hypothetical, it is unlikely to the same strict scrutiny applied to restrictions in that forum analysis would be applied to a social a traditional public forum.81 If not (the “external media company’s removal of content unless that standard”), then restrictions on speech are subject to content was removed from a social media account the same type of review applicable to a nonpublic operated or controlled by a government agency forum.82 or official. As these categories suggest, a space must be If the content was removed from such an owned or controlled by the government to be sus- account, then it is possible that the account would ceptible to forum analysis.83 In our hypothetical, the be deemed a designated public forum. In that event, government does not own any of the social media if the nature of the content was within the class platforms in which a plaintiff’s speech would occur. of speech for which the account was to be made For this reason, absent some element of govern- available (e.g., “anti-lockdown” content posted on a ment control, courts have rejected attempts to char- Facebook page created by a State for discussion of acterize social media platforms as traditional public COVID-19 response strategy), then a court would forums based solely on the fact that they have come apply strict scrutiny, and uphold the action only if to be seen as modern day public squares.84 However, it was narrowly tailored to serve a compelling state if the speech at issue was posted on a space within interest. the social media platform controlled by a public official – e.g., a congressperson’s Facebook page – then forum analysis may apply. In determining whether a restriction Courts have reached divergent conclusions on upon speech is content-based, courts this issue. consider if the restriction applies to In Knight First Amendment Institute v. Trump, particular speech because of the topic the plaintiffs alleged that President Trump vio- discussed or the idea or message lated their First Amendment rights by “blocking” expressed. them on Twitter immediately following criticism that the plaintiffs posted in response to the presi- dent’s tweets.85 A New York court concluded that But if the content was outside the designated the interactive portion of the president’s Twitter class of speech (e.g., misinformation regarding an account is properly characterized as a designated election on a Facebook page created by a council- public forum, and that the viewpoint-based exclu- person to discuss local education issues), then the sion of the plaintiffs from that forum did in fact removal would be upheld so long as it was reason- violate their First Amendment rights.86 able and viewpoint-neutral. A Wisconsin court reached the same conclusion with respect to the interactive portions of Twitter Content-Based Restriction accounts belonging to members of the Wisconsin Aside from forum analysis, a court’s primary State Assembly.87 focus in reviewing a First Amendment claim is to And in Virginia, a court concluded that the determine whether the restriction at issue is con- Commonwealth Attorney’s Facebook page was a tent-based. So long as speech is protected under designated public forum, but that the deletion of the First Amendment (i.e., not among the exclu- the plaintiff’s content from that page did not vio- sions addressed above), then “government may not late the First Amendment, because the content was regulate speech based on its substantive content or deleted pursuant to a viewpoint-neutral policy of the message it conveys.”90 “Discrimination against removing “off-topic” posts.88 speech because of its message is presumed to be

8 Intellectual Property & Technology Law Journal Volume 33 • Number 4 • April 2021 unconstitutional.”91 Thus, government restrictions that compels speech necessarily alters the content on speech that are content-based are subject to of speech.101 For this reason, and because the law strict scrutiny.92 They will only withstand judicial was targeted specifically toward political speech, scrutiny if they are narrowly tailored to achieve a the court applied strict scrutiny, meaning that compelling governmental interest.93 the law could only be upheld if it was narrowly In determining whether a restriction upon speech tailored to achieve a compelling governmental is content-based, courts consider if the restriction interest.102 applies to particular speech because of the topic It concluded that Maryland had a compelling discussed or the idea or message expressed.94 If a interest in combatting foreign meddling in U.S. restriction upon speech is content-neutral, then it elections, particularly based on evidence that cer- is subject to intermediate scrutiny,95 and requires a tain foreign interference had been targeted directly significant, rather than a compelling, government at Maryland residents.103 interest.96 Notably, separate and apart from the con- But the court found that the law was not “nar- tent-based analysis, any government restrictions on rowly tailored” to promote that interest for two political speech, which is entitled to “the highest reasons: (1) it was overinclusive, insofar as it applied degree of constitutional protection,” are subject to to large social media platforms (e.g., Facebook) strict scrutiny.97 that had actually been exploited in 2016, but also to smaller, regional news sites, which had not been exploited, and (2) it was underinclusive, insofar To survive a First Amendment as it targeted only paid political advertisements, challenge, the government (and the whereas the record demonstrated that the vast social media company, if deemed majority of internet-based foreign interference a state actor), would have to was achieved through the dissemination of unpaid demonstrate that the restrictions content (e.g., Facebook posts).104 The court there- were narrowly tailored to achieve a fore found that the law did not survive strict compelling government interest. In scrutiny.105 this regard, the nature of the removed In our hypothetical, if social media companies content would be very significant. and government actors are working in coordination to remove social media content due to concerns regarding its harmful impact on society (e.g., mis- In Washington Post v. McManus, a district court information relating to COVID-19 or an election), applied these principles to a governmental effort such conduct would almost certainly be character- to combat election-related misinformation in a ized as a content-based restriction on speech, which manner that is instructive to consideration of our may be political in nature, and therefore subject to hypothetical.98 In that case, in an effort to prevent strict scrutiny. repetition of the type of internet-based foreign To survive a First Amendment challenge, the interference that occurred in the 2016 presiden- government (and the social media company, if tial election, the State of Maryland enacted a law deemed a state actor), would have to demonstrate that required online platforms to publish and make that the restrictions were narrowly tailored to available for inspection specific information regard- achieve a compelling government interest. In this ing paid political advertisements appearing on their regard, the nature of the removed content would platforms, including the amount paid for the ad and be very significant. There would almost cer- the identity of the buyer.99 Media outlets affected tainly be a compelling government interest in the by the new law immediately brought suit, alleging removal of content that posed an imminent threat – that the publication and inspection requirements e.g., content encouraging conduct that would violated the First Amendment.100 be harmful to public health or election security. The court in that case began its analysis by But if the content at issue is not directly promot- recognizing that compelled speech is subject to ing harmful acts, and is more akin to misinfor- the same strict scrutiny applied to content-based mation about COVID-19 or an election, then a restrictions on speech, as any government action court may be less inclined to find a compelling

Volume 33 • Number 4 • April 2021 Intellectual Property & Technology Law Journal 9 government interest in its removal. It is also not to dismiss, the outcome of the claim would be clear that a court would find that the restrictions driven by the facts. were narrowly tailored. Depending on the manner in which offending posts or accounts were identi- fied, plaintiffs may be able to show that the effort Even if a compelling interest was underinclusive because selection of accounts was established based on the for removal was arbitrary, leaving more harmful circumstances, it may be difficult content in place simply because it had not caught for the social media company and the attention of the reviewers. government actor to establish that the seemingly random removal of offensive social media content was a In sum, a First Amendment claim narrowly tailored means to achieve by a social media user based upon their underlying objective. the removal of their content by social media companies acting in coordination with government The removal of social media content would actors would encounter several likely be subject to strict scrutiny, meaning that it jurisprudential obstacles, but may would be upheld only if found to be a narrowly ultimately prevail. tailored means toward accomplishing a compelling government interest. Even if a compelling interest was established based on the circumstances, it may Similarly, if the purpose in removing COVID-19 be difficult for the social media company and gov- “anti-lockdown” posts was to prevent large gath- ernment actor to establish that the seemingly ran- erings in violation of social distancing guidelines, dom removal of offensive social media content was plaintiffs may be able to show that some posts were a narrowly tailored means to achieve their underly- removed that simply promoted “anti-lockdown” ing objective. sentiments, but did not invite anyone to attend any particular gathering, rendering the effort overinclusive. Notes 1. Jiachuan Wu, Savannah Smith, Mansee Khurana, Corky CONCLUSION Siemaszko & Brianna DeJesus-Banos, Coronavirus lock- In sum, a First Amendment claim by a social downs and stay-at-home orders across the U.S., NBC News (Apr. media user based upon the removal of their content 29, 2020), https://www.nbcnews.com/health/health-news/ by social media companies acting in coordination here-are-stay-home-orders-across-country-n1168736. with government actors would encounter several 2. Nicholas Bogel-Burroughs & Jeremy W. Peters, “You jurisprudential obstacles, but may ultimately prevail. have to Disobey”: Protestors Gather to Defy Stay-At-Home To establish First Amendment liability on the Orders, N.Y. Times (Apr. 16, 2020), https://www.nytimes. part of a social media company, a plaintiff would com/2020/04/16/us/coronavirus-rules-protests.html. 3. Zephoria Digital Marketing, The Top 20 Valuable be required to show that the company’s conduct Facebook Statistics, https://zephoria.com/top-15-valuable- should be deemed “state action,” which would facebook-statistics/ (last visited Oct. 7, 2020). require clear demonstration of government involve- 4. Donie O’Sullivan & Brian Fung, Facebook will take ment (e.g., direction, coordination, or coercion) in down some, but not all, posts promoting anti-stay-at- the actual decision to remove particular content. home protests, CNN (Apr. 20, 2020), https://www.cnn. If such a showing could be made, then a plaintiff com/2020/04/20/politics/facebook-covid-shutdown-pro- would next need to overcome a social media com- tests/index.html. pany’s claim of immunity under Section 230 of the 5. Id. Communications Decency Act, which (depending 6. For example, on July 21, 2020, Twitter announced on jurisdiction) may or may not apply to a First that it would shut down nearly 7,000 accounts and Amendment claim. Finally, if a plaintiff could estab- impose other restrictions to address harassment and lish “state action” and defeat a Section 230 motion misinformation concerns relating to followers of the

10 Intellectual Property & Technology Law Journal Volume 33 • Number 4 • April 2021 conspiracy theory known as QAnon. Ben Collins & 29. Tsao, 698 F.3d 1140 (internal quotation marks omitted) Brandy Zadrozny, Twitter bans 7,000 QAnon accounts, lim- (quoting Franklin, 312 F.3d at 445). its 150,000 others as part of broad crackdown, NBC News 30. 395 F. Supp. 3d at 1300-01. ( July 21, 2020), https://www.nbcnews.com/tech/tech-news/ 31. Id. at 1312-13. twitter-bans-7-000-qanon-accounts-limits-150-000-others- 32. Id. n1234541. 33. Id. 7. Elizabeth Dwoskin, Facebook and Twitter take unusual steps 34. Id. at 1313. to limit spread of New York Post story, the washington 35. Id. post (Oct. 15, 2020), https://www.washingtonpost.com/ 36. 47 U.S.C.A. § 230(c)(2)(A). technology/2020/10/15/facebook-twitter-hunter-biden/. 37. Rachel Lerman, Social media liability law is likely to be 8. Kate Conger & Mike Isaac, Twitter Permanently Bans reviewed under Biden, ( Jan. 18, 2021). Trump, Capping Online Revolt, https://www.washingtonpost.com/politics/2021/01/18/ (Jan. 8, 2021), https://www.nytimes.com/2021/01/08/ biden-section-230/. technology/twitter-trump-suspended.html. 38. Fair Hous. Council of San Fernando Valley v. Roommates. 9. Mike Isaac and Kate Conger, Facebook Bars Trump Through com, LLC (Roommates.com), 521 F.3d 1157, 1162 (9th End of His Term, The New York times (Jan. 7, 2021). Cir. 2008) (footnote omitted). https://www.washingtonpost.com/politics/2021/01/18/ 39. Id. at 1163. biden-section-230/. 40. Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 10. Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) 1997). (explaining that “[a]ctions under § 1983 and those under 41. Fed. Agency of News LLC v. Facebook, Inc., 432 F. Supp. Bivens are identical save for the replacement of a state 3d 1107, 1116-17 (N.D. Cal. 2020) (quoting Sikhs for actor under § 1983 by a federal actor under Bivens.”). Justice “SFJ”, Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088, 11. Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014). 1092 (N.D. Cal. 2015), aff’d sub nom. Sikhs for Justice, Inc. 12. Hudgens v. NLRB, 424 U.S. 507, 513 (1976). v. Facebook, Inc., 697 F. App’x 526 (9th Cir. 2017)). 13. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). 42. 47 U.S.C.A. § 230(f)(2). 14. Id. at 939. 43. Fed. Agency of News LLC, 432 F. Supp. 3d at 1117-20. 15. Fed. Agency of News LLC v. Facebook, Inc., 395 F. Supp. 3d 44. Although courts have generally construed Section 230 1295, 1310 (N.D. Cal. 2019). to provide broad publisher immunity under Section 16. Id. at 1310-11. 230, the scope of that immunity has come under 17. Id. at 1311. increasing public scrutiny. On October 15, 2020, Federal 18. E.g., Cyber Promotions, Inc. v. Am. Online, Inc., 948 F. Supp. Communications Commission Chairman 436, 442 (E.D. Pa. 1996); Ebeid v. Facebook, Inc., No. announced that the Commission intended to under- 18-cv-07030, 2019 WL 2059662, at *6 (N.D. Cal. May take a rulemaking proceeding to clarify the meaning 9, 2019); Harris v. Kern Cty. Sheriffs, No. 1:19-cv-00262, of Section 230. (See Statement of Chairman Pai on Section 2019 WL 1777976, at *6 (E.D. Cal. Apr. 23, 2019); 230, fcc.gov (Oct.15, 2020), https://docs.fcc.gov/public/ Prager Univ. v. Google, LLC, No. 17-cv-06064, 2018 WL attachments/DOC-367567A1.pdf ). See, also, Supreme 1471939, at *5-6 (N.D. Cal. Mar. 26, 2018), aff’d, 951 Court Justice Clarence Thomas’ statement respecting F.3d 991 (9th Cir. 2020). denial of certiorari in Malwarebytes, Inc. v. Enigma Software 19. Blum v. Yaretsky¸457 U.S. 991, 1004 (1982). Group USA LLC, No. 19-1284, 2020 WL 6037214, at 20. No. 96-cv-00594, 1997 WL 527349, at *1-2 (D.D.C. *1 (U.S. Oct. 13, 2020) (noting that the Supreme Court Aug. 21, 1997), aff’d, 159 F. 3d 635 (D.C. Cir. 1998). has never construed Section 230 and indicating his view 21. Id. at *6. that some courts have read the immunity provisions of 22. Id. at *5-7. that section too broadly). 23. Kirtley v. Rainey, 326 F.3d 1088, 1094-95 (9th Cir. 2003) 45. Small Justice LLC v. Xcentric Ventures LLC, 873 F.3d 313, (quoting Brentwood Acad. V. Tenn. Secondary Sch. Athletic 322-23 (1st Cir. 2017). Ass’n, 531 U.S. 288, 295 (2001)). 46. Green v. Am. Online, 318 F.3d 465, 471 (3d Cir. 2003). 24. No. 06-cv-02057, 2007 WL 831806, at *2-3. 47. Donato v. Moldow, 374 N.J. Super. 475, 479 (App. Div. 25. Id. at *2, 14-15. 2005). For an extensive survey of claims potentially 26. Id. at *14. precluded by Section 230, see 4 E-Commerce and 27. Id. Internet Law 37.05[1][C] (2020 Update). 28. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 48. 432 F. Supp. 3d at 1116 (citing Roommates.com, 521 F.3d 2012) (quoting Franklin v. Fox, 312 F.3d 423, 445 (9th at 1162). Cir. 2002). 49. Id. at 1120-21.

Volume 33 • Number 4 • April 2021 Intellectual Property & Technology Law Journal 11 50. In Federal Agency of News, the district court stated: 59. See Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 790 “Section 230 immunity extends to causes of action (2011). under both state and federal law, though the Ninth 60. Id. at 790-91. Circuit has not interpreted Section 230 to grant immu- 61. Novak v. City of Pharma, 932 F.3d 421, 427 (6th Cir. nity for causes of action alleging constitutional vio- 2019). lations.” 432 F. Supp. 3d at 1116. In support of that 62. Johnson v. Cache Cty. Sch. Dist., 323 F. Supp. 3d 1301, proposition, the district court cited to pages 1164, 1169, 1314 (D. Utah 2018) (citing Packingham v. N. C. , 137 S. and Footnote 24 in the Ninth Circuit’s opinion in Ct. 1730 (2017)). Roommates.com. Id. But the Roommates.com decision did 63. Bland v. Roberts, 730 F.3d 368, 385-86 (4th Cir. 2013). not address constitutional claims, in the portions cited 64. Knight First Amendment Inst. at Columbia Univ. v. Trump, by the district court or anywhere else in the body of the 302 F. Supp. 3d 541, 565 (S.D.N.Y. 2018), aff’d, 928 F.3d opinion. The Ninth Circuit did address in Roommates. 226 (2019), reh’g en banc denied, 953 F.3d 216 (2020). com the application of Section 230 to claims under the 65. J.S. ex rel Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, federal Fair Housing Act and California housing dis- 920 (3d Cir. 2011). crimination laws. So it is possible that the district court 66. Duke v. Hamil, 997 F. Supp. 2d 1291, 1299-1300 (N.D. was simply noting that the Ninth Circuit had not held Ga. 2014). that Section 230 applies to constitutional claims (as 67. Brown, 564 U.S. at 791; U.S. v. Alvarez, 567 U.S. 709, 717- opposed to holding it does not), but later on in its deci- 18 (2012). sion in Federal Agency of News, the district court stated 68. Alvarez, 567 U.S. at 718. more explicitly that “Section 230 does not immunize a 69. Id. at 729-30. defendant from constitutional claims.” 432 F. Supp. 3d at 70. Susan B. Anthony List v. Driehaus, 814 F.3d 466, 471-72 1119. (6th Cir. 2016). 51. Pagan v. Google Corp., No. 16-cv-00401, 2016 WL 71. Id. at 476. 7187645, at *2 (D.N.H. Nov. 15, 2016) (applying 72. 395 U.S. 444, 447-48 (1969). Section 230 to dismiss a defamation claim against 73. United States v. Daley, 378 F. Supp. 3d 539, 556-57 (W.D. Google, but dismissing the First Amendment claim the Va. 2019), aff’d sub nom. United States v. Miselis, 972 F.3d merits on the basis that Google was not engaged in state 518 (4th Cir. 2020). action), adopted by 2016 WL 7187312 (D.N.H. Dec. 8, 74. Nwanguma v. Trump, 903 F.3d 604, 613 (6th Cir. 2018). 2016); Wilson v. Twitter, No. 3:20-cv-00054, 2020 WL 75. Id. 3410349 (S.D. W. Va. May 1, 2020) (recommending 76. Jill I. Goldenziel & Manal Cheema, The New Fighting application of Section 230 to dismiss a claim under the Words?: How U.S. Law Hampers the Fight Against Title II of the Civil Rights Act against Twitter, and dis- Information Warfare, 22 U. Pa. J. Const. L. 81, 110 missal of the First Amendment claim on the merits on (2019). the basis that Twitter was not engaged in state action), 77. Cornelius v. NAACP Legal Def. & Edu. Fund, Inc., 473 adopted by 2020 WL 3256820, at *2 (S.D. W. Va. Jun. U.S. 788, 799-800 (1985). 16, 2020) (agreeing with the Magistrate Judge’s rec- 78. Goulart v. Meadows, 345 F.3d 239, 248 (4th Cir. 2003). ommendation to dismiss the First Amendment claim 79. Id. at 248-49. on the merits and the Title II claim based on Section 80. Id. at 249-50. 230). 81. Id. 52. Shulman v. Facebook.com, No. 17-cv-00764, 2017 WL 82. Id. 5129885, at *4 n.6 (D.N.J. Nov. 6, 2017). 83. Knight First Amendment Inst. at Columbia Univ., 302 F. 53. No. 18-cv-07030, 2019 WL 2059662, at *3 (N.D. Cal. Supp. 3d at 565. May 9, 2019). 84. Fed. Agency of News, 432 F. Supp. 3d at 1121-22. 54. No. 19-cv-00114, 2019 WL 2423375, at *2-3 (N.D. Cal. 85. Knight First Amendment Inst. at Columbia Univ., 302 F. Jun. 10, 2019), appeal dismissed, No. 19-16622, 2020 WL Supp. 3d at 553-54. 4877527 (9th Cir. Mar. 6, 2020). 86. Id. at 580. 55. No. 20-cv-00085, 2020 WL 2745253, at *8-10 (N.D. 87. One Wis. Now v. Kremer, 354 F. Supp. 3d 940, 955-56 Cal. May 20, 2020). (W.D. Wis.. 2019). 56. Robertson, 753 F.3d at 614. 88. Davison v. Plowman, 247 F. Supp. 3d 767, 778 (E.D. Va. 57. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 2018), aff’d, 715 F. App’x 298 (4th Cir. 2018). U.S. 788, 797 (1985). 89. Morgan v. Bevin, 298 F. Supp. 3d 1003, 1011-12 (E.D. Ky. 58. Engquist v. Or. Dep’t. of Agric., 553 U.S. 591, 600 (2008). 2020).

12 Intellectual Property & Technology Law Journal Volume 33 • Number 4 • April 2021 90. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 97. Wash. Post, 355 F. Supp. 3d at 285-86. 819, 828 (1995). 98. Id. 91. Id. 99. Id. at 281-83. 92. Wash. Post v. McManus, 355 F. Supp. 3d 272, 286 (S.D. 100. Id. at 278. Md.), aff’d, 944 F.3d 506 (4th Cir. 2019). 101. Id. at 286-87. 93. Id. 102. Id. at 298. 94. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). 103. Id. at 298-99. 95. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 104. Id. at 299-302. (1994). 105. Id. at 302. 96. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

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