Plaintiff-Appellee,

v.

Michael Lacey, Scott Spear, and John (“Jed”) Brunst,

Defendants-Appellants.

Introduction

This case is the culmination of a years-long campaign to censor online classified adult advertising. Government officials, including state attorneys general and ultimately the federal government, joined by various advocacy groups and others, made demands to shut down online adult advertising based on blanket assertions that all ads for escort services or sex work are necessarily ads for prostitution, and publishers that permit such ads should face criminal or civil liability merely for providing a platform.

But these campaigns ran headlong into well-established First Amendment principles. A series of cases, most involving Backpage.com, established that the First Amendment protects publication of adult classified ads, the government cannot presume escort ads are ads for illegal conduct, and, most pertinent here, the government cannot hold publishers responsible for third-party ads posted by others absent knowledge of the specific posters’ criminal purpose and specific intent to assist them.

The prosecution in this case proceeded not by addressing and overcoming these constitutional barriers but by evading them. The government’s strategy was to obscure the constitutional issues and prevent the jury from considering the government’s allegations in light of controlling First Amendment principles.

The district court acquiesced in this approach. It gave the government wide latitude to put into evidence its cooperating witnesses’ opinions and guesses that all adult ads are for prostitution. It allowed the government to use public accusations against Backpage.com in the guise of “notice” evidence.

At the same time, the court prevented Defendants from introducing key information in their defense, in particular any mention of the cases upholding Backpage.com’s established First Amendment rights and Defendants’ good faith in following the law. Ultimately, the court allowed the government to argue its theory without making any showing that any defendant ever even saw any given ad, much less did anything to facilitate or promote a business venture of prostitution related to any of the charged ads.

The district court’s deeply flawed handling of this case presents profound threats for speech and the Internet. No court has ever before allowed the novel theory of vicarious liability for third-party speech that the government advanced and the district court permitted here.

If allowed to stand, the district court’s rulings would serve as a wide-ranging blueprint for online censorship. Publishers and intermediaries across the Internet would face the threat of criminal liability contrary to bedrock First Amendment law.

Full Brief: United States v. Lacey et al

The post United States v. Lacey et al: Digital free speech is at risk appeared first on Reason Foundation.

Plaintiffs – Appellants,

v.

City of New Braunfels, Texas,

Defendant – Appellee.

Introduction and summary of argument

In 2011, the City of New Braunfels passed an ordinance banning short-term rentals (STRs) in large portions of the city. A coalition of STR owners challenged the ban, arguing it violated their property rights under the Fourteenth Amendment and the Texas Constitution.

The city initially moved to dismiss the case without any discovery, claiming STRs were nuisances. The lower court granted the motion, but this Court—after considering party briefing and supporting amicus briefs—reversed, directing the district court to weigh the evidence after discovery.

Discovery revealed the city’s claims were baseless. STRs in New Braunfels are prevalent, and the city has issued no nuisance citations against STR properties. Studies and data contradicted the city’s assertions about property values and neighborhood character. Nevertheless, the district court granted the city’s motion for summary judgment in a cursory opinion that ignored the evidence and this Court’s directive. This appeal thus seeks to restore meaningful judicial scrutiny to property-rights cases.

This controversy highlights two unresolved aspects of the ongoing housing debate—one legal, the other political. First, under the common-law conception of ownership, private proprietors are firmly within their “bundle of rights” to lease realty for as long or as short as they wish. They can only be prohibited from engaging in nuisant or harmful uses. Since at least Cedar Point Nursery v. Hassid (2021), the Supreme Court has clarified that property rights are fundamental and thus subject to at least a heightened degree of judicial scrutiny. 594 U.S. 139, 158 (2021) (“We cannot agree that the right to exclude is an empty formality, subject to modification at the government’s pleasure. On the contrary, it is a ‘fundamental element of the property right’ that cannot be balanced away.”) (cleaned up).

This contrasts with “rational basis review,” which attaches to rules and regulations that do not implicate fundamental rights and are, therefore, permitted for any conceivable police-power purpose. This is certainly the case under Texas law. Zaatari v. City of Austin, 615 S.W.3d 172 (Tex. App.–Austin 2019) (holding city ordinance banning short-term rentals of single-family residences not owner occupied was infringed on fundamental property rights). As amici will discuss, heightened constitutional protection against restrictions, specifically on short-term rentals, is not limited to the property rights of owners but extends to guests’ reciprocal “right to establish a home.” See, e.g., Keen v. City of Manhattan Beach, 292 Cal. Rptr. 3d 366, 370 (Cal. App. 2022) (“It is possible to reside somewhere for a night, a week, or a lifetime”); Wilkinson v. Chiwawa Comms. Ass’n, 327 P.2d 614, 620 (Wash. 2014) (“If a vacation renter uses a home ‘for the purposes of eating, sleeping, and other residential purposes,’ this use is residential, not commercial, no matter how short the rental duration.”).

Second, America’s housing sector has been in turmoil for decades now—at least as early as the mid-2000s. Despite widespread awareness and justified concern for the ever-dwindling supply of available units, innovative solutions—including short-term rentals alongside accessory-dwelling units and rowhouse developments—remain relatively few and far between.

Short-term rentals are acute targets of powerful NIMBY (“not in my backyard”) pushback and the longtime failure of proponents to organize a coherent political and policy response. As one among several correctives, amici strongly believe that caselaw on the topic of increasing access to housing should begin integrating a growing research literature demonstrating the economic, social, and cultural benefits of these alternatives that far outweigh the exaggerated externalities.

Full Brief: ‘Marfil v. City of New Braunfels’

The post Marfil v. City of New Braunfels: Regulating short-term rentals appeared first on Reason Foundation.

Petitioners,

v.

Consumers’ Research, et al.,

Respondents.

Schools, Health & Libraries Broadband Coalition, et al.,

Petitioners,

v.

Consumers’ Research, et al.,

Respondents.

Summary of argument

Respondents are correct on the bottom line, and so was the en banc Fifth Circuit: the administration of the Universal Service Fund (USF) Tax mechanism is unconstitutional. But the Fifth Circuit got it right for the wrong reason. The problem is not that the FCC’s reliance on the Universal Service Administrative Company (USAC) as administrator of the USF violates the “private nondelegation doctrine.” Rather, the problem is twofold: (1) The arrangement violates the Appointments Clause, because the USAC members can exercise significant governmental power under federal law without having gone through the proper appointment process. (2) The arrangement violates the Due Process Clause, because various members of USAC have an interest in the contribution amounts they project.

The Fifth Circuit was wrong that the FCC’s reliance on USAC violates the “private nondelegation doctrine.” There is no such doctrine. The idea that delegations of power to private parties are judged by a stricter standard than delegations to public parties has no support in any holdings of this Court. Any decisions that seem to the contrary have either been misinterpreted or were in fact based on other doctrines, like the Due Process Clause. And the lack of such a doctrine makes sense, because the nondelegation doctrine, which is rooted in Article I, is aimed at controlling Congress; it sensibly asks whether Congress has given up too much power, not who the recipient of such power is.

Assuming that the FCC is authorized to subdelegate to USAC, that subdelegation should be judged by the same standard as a subdelegation to a public body. (Amicus takes no position here on the statutory issue, or on whether the subdelegation to USAC would survive under the public-delegation standard.)

USAC exercises substantial federal power, because its projections go into effect automatically if the FCC does nothing within 14 days, and this determines the amount and distribution of the tax. This makes the members of USAC Officers of the United States. But because they weren’t appointed as Officers in the way that Article II requires, this arrangement violates the Appointments Clause.

That USAC members are nominally private is unimportant for Officer status. The labeling of USAC as private, and the fact that USAC is organized as a private organization under Delaware law, are constitutionally irrelevant, and in any event Appointments Clause doctrine doesn’t demand that an Officer formally be a public employee.

The Fifth Circuit was right to point out that there is a conflict of interest inherent in having USAC—which contains members of telecommunications companies, “who stand to benefit financially when universal service subsidies grow”—determine contribution amounts. Consumers’ Research v. FCC, 109 F.4th 743, 772 (5th Cir. 2024). But this problem should be located in the Due Process Clause, not in a private nondelegation doctrine. The Due Process Clause has for a century been interpreted to bar exercises of regulatory power by self-interested parties, whether public or private.

The distinction between the “private nondelegation doctrine,” the Appointments Clause, and the Due Process Clause, isn’t just of academic interest.

First, the doctrines are motivated by different theories. The nondelegation doctrine is giver-focused, asking whether Congress has given up too much power; the public-private question fits poorly with this concern. By contrast, the Appointments Clause is recipient-focused, asking, from a democratic accountability perspective, whether the recipient of major power has been validly authorized by the proper political process. And the Due Process Clause is application-focused, asking whether the use of the power implicates fairness concerns. The problem here fits more naturally with the Appointments Clause and Due Process issues.

Second, the doctrines apply in different contexts and have different remedies. For instance, a Due Process theory (unlike the nondelegation doctrine or the Appointments Clause) would apply even if this were a state regulatory scheme. It could also support damages under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). And an Appointments Clause theory asks whether someone is “exercising significant authority pursuant to the laws of the United States.” Thus, an Appointments Clause approach will turn on how much power the agent exercises, ignoring trivial cases and requiring political accountability for significant ones. This is a sensible approach—otherwise, countless private delegations could be indiscriminately invalidated, from qui tam suits to private prison contracting to incorporation of private actuarial standards into healthcare regulation. Whether these are valid should depend on an inquiry into “significant authority.”

Third, a private nondelegation doctrine requires tough judgment calls about whether an organization is public or private, so the results will depend on the vagaries of public-private doctrines like the State Action Doctrine. (Indeed, it is not at all obvious that USAC is actually private here.) By contrast, the Appointments Clause and Due Process Clause depend on functional questions, such as whether significant power exists and whether there is a danger that it will be used self-interestedly. In today’s world of hybrid public-private organizations and nominally private organizations wielding coercive power, it makes more sense to rely on doctrines that do not hinge on formal public-private categorization.

Therefore, if this Court invalidates this regulatory scheme, it should do so on Due Process and/or Appointments Clause grounds. Regardless, this Court should not endorse any “private nondelegation doctrine” theory. (Amicus takes no position here on the ordinary nondelegation doctrine theory that the Fifth Circuit relied on to invalidate the initial delegation from Congress to the FCC. Amicus merely disagrees with the “private nondelegation doctrine.”)

Full Brief: Federal Communications Commission v. Consumers’ Research

The post Federal Communications Commission v. Consumers’ Research appeared first on Reason Foundation.

Petitioners,

v.

National Horsemen’s Benevolent and Protective Association, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit.

Summary of Argument

This case is obviously certworthy. The Horseracing Integrity and Safety Authority is an unaccountable agency that exercises significant federal rulemaking, investigation, and enforcement authority, even though its members haven’t been politically appointed and even though it doesn’t have meaningful oversight by any other agency. There is a circuit split on the private nondelegation issue. A circuit court has struck down part of a federal statute. Parties from both sides, including the federal government, agree that a grant of certiorari is warranted.

However, this Court shouldn’t merely grant certiorari on the private nondelegation issue. It should also grant certiorari on the Appointments Clause issue, because these two issues are closely related, and the Fifth Circuit reached the incorrect result on each of these issues.

The Fifth Circuit was wrong that the Authority’s enforcement power violates the “private nondelegation doctrine.” There is no such doctrine. The idea that delegations of power to private parties are judged by a stricter standard than delegations to public parties has no support in any holdings of this Court. Any decisions that seem to the contrary have either been misinterpreted or were in fact based on other doctrines, like the Due Process Clause. And the lack of such a doctrine makes sense, because the nondelegation doctrine, which is rooted in Article I, sensibly asks whether Congress has given up too much power, not who the recipient of such power is.

If the Authority is considered a private organization, the delegation to the Authority should be judged by the same “intelligible principle” standard as a delegation to a public agency—and the delegation here clearly passes that test.

However, the Fifth Circuit reached the partially right result, though for the wrong reason. Contrary to the Fifth Circuit’s holding, exercises of power by the Authority, whether rulemaking or enforcement power, violate the Appointments Clause, because the members of the Authority are Officers of the United States but weren’t appointed as Officers should be under Article II.

That the Authority members are nominally private is unimportant for Officer status. The statutory labeling of the Authority as private, and the fact that the Authority is organized as a private organization under state law, are constitutionally irrelevant, and in any event Appointments Clause doctrine doesn’t demand that an Officer formally be a public employee.

Even if public status were relevant to the Appointments Clause—and even if the Fifth Circuit were correct to assume that “state actor” status under the State Action Doctrine is relevant here—the Fifth Circuit still erred in holding that the Authority isn’t a state actor. On the contrary, this is an easy case for state action, because rulemaking, investigation, and enforcement of federal law are traditionally exclusive public functions. Therefore, an alternative way of deciding the case would be to hold that the Authority is public because it is a state actor, which would uncontroversially activate both the Appointments Clause and the traditional (public) nondelegation doctrine.

The difference between the “private nondelegation doctrine” and the Appointments Clause isn’t just of academic interest.

First, the doctrines are motivated by different theories. The nondelegation doctrine is giver-focused, asking whether Congress has given up too much power; the public-private question fits poorly with this concern. By contrast, the Appointments Clause is recipient-focused, asking, from a democratic accountability perspective, whether the recipient of major power has been validly authorized by the proper political process. The problem here fits more naturally with the Appointments Clause issue.

Second, the doctrines won’t always produce the same results. A private nondelegation doctrine requires tough judgment calls about whether an organization is public or private, so the results will depend on the vagaries of public-private doctrines. And when the doctrine finds private status, it would apparently invalidate all delegations of “government power” that aren’t subordinate to a public agency. Horsemen’s I, 53 F.4th at 878. By contrast, the Appointments Clause asks whether someone (public or private) is “exercising significant authority pursuant to the laws of the United States.” Thus, an Appointments Clause approach will turn on how much power the agent exercises, ignoring trivial cases and requiring political accountability for significant ones. This is a sensible approach—otherwise, countless private delegations could be indiscriminately invalidated, from qui tam suits to private prison contracting to incorporation of private actuarial standards into healthcare regulation. Whether these are valid should depend on an inquiry into “significant authority.”

Therefore, this Court should grant certiorari on the Appointments Clause question.

This Court could reach the right result by only considering the Appointments Clause issue, because the correct resolution of that issue (that the Authority wields power unconstitutionally) would correctly resolve the entire case. But because parties from both sides, including the federal government, are asking the Court to consider the private nondelegation issue, and because that issue is obviously certworthy, amici ask that the private nondelegation and Appointments Clause issues be considered as linked and decided together.

The Sixth Circuit case (Oklahoma v. United States, No. 23-402) didn’t consider the Appointments Clause at all, so it would not be a good vehicle for a grant of certiorari. By contrast, the Eighth Circuit case (Walmsley v. FTC, No. 24-420) did consider the Appointments Clause, essentially incorporating the Fifth Circuit’s analysis (though the Appointments Clause issue was not part of the Questions Presented in the petition in that case). Therefore, this Court should grant certiorari—making sure that the grant includes the Appointments Clause question—in this case or in the Eighth Circuit case (or in both cases together).

Full Brief: Horseracing Integrity and Safety Authority v. National Horsemen’s Benevolent and Protective Association

The post Horseracing Integrity and Safety Authority v. National Horsemen’s Benevolent and Protective Association appeared first on Reason Foundation.

On Appeal from the United States District Court for the Eastern District of Pennsylvania,
(D.C. Civil No. 2-22-cv-01849)
The Honorable Paul S. Diamond

Statement Of Interest of Amici Curiae

Amici Electronic Frontier Foundation, Center for Democracy and Technology, Foundation for Individual Rights and Expression (FIRE), Public Knowledge, Reason Foundation, and Wikimedia Foundation are six nationally prominent non-profit organizations focused on defending the rights of internet users. They are all experts in civil liberties and technology, including Section 230 (47 U.S.C. § 230), the rights and liabilities of internet intermediaries, and, importantly, the ability of internet users to engage in online free expression. Amici have filed numerous briefs in federal and state courts nationwide on these issues, including in the U.S. Supreme Court in Gonzalez v. Google LLC, 598 U.S. 617 (2023) and Moody v. NetChoice, LLC, 144 S.Ct. 2383 (2024). More detailed organizational statements of interest are available in the Unopposed Motion for Leave to File Brief of Amici Curiae.

Introduction

This Court should grant Defendants-Appellees’ petition for rehearing en banc. The panel erred by holding that TikTok does not have Section 230(c)(1) immunity for recommending videos created by its users and that First Amendment protection for editorial choices around the display of third-party speech is mutually exclusive from Section 230(c)(1) immunity. The panel dismissed the text of Section 230 and the reasonable rulings of other circuits.

Moreover, whether Section 230(c)(1) applies to an online platform’s video recommendations was extensively briefed in Gonzalez v. Google LLC, 598 U.S. 617 (2023). It is improbable that while the Supreme Court declined to rule on this issue in Gonzalez, it did so by implication in Moody v. NetChoice, LLC, 144 S.Ct. 2383 (2024).

The panel’s rule creates a huge loophole that would make Section 230(c)(1) immunity virtually meaningless, undermining Congress’ policy goal of incentivizing internet intermediaries to facilitate third-party speech at scale.

The panel’s rule would ultimately harm internet users as online platforms would decrease useful content curation and increase censorship to reduce their legal exposure.

Full Brief: Anderson v. TikTok, Inc.

The post Anderson v. TikTok, Inc.: Section 230 protections apply to social media appeared first on Reason Foundation.

Brief of Amici Curia
Foundation for Individual Rights and Expression, Reason Foundation, and First Amendment Lawyers Association in support of petitioners and reversal

Summary of Argument

This Court has consistently required the government to meet a heavy burden when it regulates lawful adult speech in the name of protecting minors. Despite this clarity, Texas enacted—and the United States Court of Appeals for the Fifth Circuit overturned a preliminary injunction to uphold—a law that burdens adult access to protected speech online. Other states have already followed suit or are primed to do so.

In a string of rulings dating back decades, this Court has made clear that when the government seeks to prevent minors from accessing lawful sexual content, “the means must be carefully tailored to achieve those ends.” Sable Commc’ns of Cal. v. FCC, 492 U.S. 115, 126 (1989). Imposing a “burden on adult speech is unacceptable,” this Court held, “if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno v. ACLU, 521 U.S. 844, 874 (1997); see also United States v. Playboy Entm’t Grp., 529 U.S. 803, 813 (2000) (same); Ashcroft v. ACLU, 542 U.S. 656, 670 (2004) (same).

For generations this Court’s conclusion has been unmistakable: Statutory burdens on adult access to adult content must satisfy strict scrutiny. And that conclusion makes the same intuitive sense today as it did in the many previous cases that embraced it. After all, a statute singling out lawful sexual expression is a content-based speech restriction. As such, it is “presumed invalid” because of its “constant potential to be a repressive force in the lives and thoughts of a free people.” Ashcroft, 542 U.S. at 660. A content- based speech restriction poses such a grave threat to expressive rights that “it can stand only if it satisfies strict scrutiny,” which requires the government to employ the least restrictive means of serving its objectives. Playboy, 529 U.S. at 813.

But the Fifth Circuit disagrees. Contrary to this Court’s well-settled precedent—and in a sharp split with other circuits—a Fifth Circuit panel somehow held that a Texas law that significantly burdens adult access to lawful adult content warranted only rational-basis review. Free Speech Coal., Inc. v. Paxton, 95 F.4th 263 (5th Cir. 2024).

Relying on a strained reinvention of this Court’s ruling in Ginsberg v. New York, 390 U.S. 629 (1968), the panel effectively read Sable, Reno, Playboy, and Ashcroft out of existence. By wishing away the constitutional constraints established in those cases, the Fifth Circuit’s decision grants Texas a free hand to force adult Texans to show their papers and surrender their privacy simply to access content protected by the First Amendment.

The Fifth Circuit got it wrong. With the smoke cleared and mirrors stowed, Texas’ law is what it is: a content-based restriction on speech. No reasonable reading of the statute or of the caselaw can justify a contrary conclusion. Because the law imposes a content-based burden on adult access to protected speech, “the answer should be clear”: It demands strict scrutiny. Playboy, 529 U.S. at 814.

The Fifth Circuit’s attempt to excuse its use of a less-exacting standard via a tortured interpretation of this Court’s precedent is not only unconvincing, but dangerous. Because if Texas’ law is allowed to stand—and with it, the Fifth Circuit’s revisionist reading of long-standing First Amendment law— similarly speech-restrictive statutes (and similarly enterprising  jurisprudence)  will  soon  proliferate. California, for example, is close to passing its own version. Seven other states already have.

Keeping children safe is important, no doubt. But the means used to achieve this worthy end matter, and the government must bear the burden of proving their constitutionality. As Justice Thomas wisely warned: “The ‘starch’ in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.” Playboy, 529 U.S. at 830 (Thomas, J., concurring).

The First Amendment doesn’t permit shortcuts. Texas must prove its statute satisfies strict scrutiny. This Court should direct the Fifth Circuit to require Texas to do so.

Full Brief: Free Speech Coalition, Inc. v. Paxton

The post Free Speech Coalition, Inc. v. Paxton: Texas law burdens adult access to protected online speech appeared first on Reason Foundation.

v.

Merrick B. Garland, in his capacity as United States Attorney General,

Respondent.

From the Department of Justice in DOJ-Pub. L. No. 118-50

Summary of Argument

This case presents an unprecedented threat to Americans’ expressive rights: Congress has singled out and effectively banned an entire platform for communication that half the country uses to share and consume ideas, news, advocacy, and creative content. Shuttering TikTok will deny millions of Americans access to a unique and important platform for exercising their right to free speech.

The Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, Div. H (Apr. 24, 2024) (“the Act”), is a direct regulation of speech subject to the highest level of First Amendment scrutiny. It explicitly calls out and regulates a specific platform for expression, imposes a prior restraint, and draws content-based restrictions on speech.

In enacting the law, Congress failed to meet its burden of proving it satisfies strict scrutiny—or any level of scrutiny. There are not even published legislative findings or any other official public record that attempts to explain or provide evidence why this severe encroachment on Americans’ right to speak and to receive information is needed to address a real and serious problem. The existing evidence of the law’s purpose—a single congressional committee report and various lawmakers’ public statements—reveals illegitimate intent to suppress disfavored speech and generalized concerns about data privacy and national security. These concerns fall far short of satisfying the relevant constitutional standards. Nor is the Act narrowly tailored to any compelling or substantial government interest, as the First Amendment requires.

This Court should grant the Petitions for Review and enjoin enforcement of the Act as unconstitutional.

Full Brief: Firebaugh v. Garland

The post Firebaugh v. Garland: Banning TikTok is unconstitutional appeared first on Reason Foundation.

v.

United States Securities And Exchange Commission, Respondent.

On Petition for Review from the

United States Securities and Exchange Commission No. 4-733

Introduction

This petition seeks review of the U.S. Securities and Exchange Commission’s denial of a petition to amend its requirement that settlement of all cases must include a lifetime prior restraint on speech. That restraint bars the settling enforcement target from ever even “indirectly” leaving the “impression” that “any allegation in [SEC’s] complaint” is “without factual basis.” No act of Congress authorizes such a sweeping restriction on freedom of speech and of the press as a condition of settling a government case. Nor could it.

The First Amendment of the Constitution provides that “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people…to petition the Government for a redress of grievances.”

This Circuit has concluded with clarity that courts lack power to enforce unconstitutional prior restraints and content- and viewpoint- based speech restrictions as conditions on settlements—even when entered on consent. Davies v. Grossmont Union High Sch. Dist., 930 F. 2d 1390, 1399 (9th Cir. 1991) cert. denied, 501 U.S. 1252 (1991) (invalidating the portion of a settlement agreement in which a party waived his right to run for public office); United States v. Richards, 385 F. App’x 691, 693 (9th Cir. 2010) (invalidating term of plea agreement forbidding defendant from making public comments about county commissioner). These law-of-the-Circuit precedents are buttressed by the Fourth and Sixth Circuits. Overbey v. Mayor of Balt., 930 F.3d 215, 219 (4th Cir. 2019); G&V Lounge, Inc., v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1077 (6th Cir. 1994).

The SEC-imposed gag is a quintessential prior restraint—“the most serious and the least tolerable infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). The notion that a governmental body may wield its power to decide who is to be permitted to comment on the agency’s own behavior undermines the core purpose of the First Amendment.

The gag rule also violates the due process of law by requiring defendants to waive their constitutional rights if they settle with the agency, including rights to be heard on the terms of the settlement, rights to notice of what speech would violate the gag, and the right to freely exchange their views of the administrative process they endured. The gag violates due process because it shields and encourages SEC regulation by settlement, allowing SEC to pursue cases not well-founded in established law or rules while forever silencing the targets of those actions.

The question raised in this appeal has exerted enormous individual, collective, and decades-long impact on Americans’ civil liberties and transparency in SEC’s regulation, which settles 98% of its cases. The stakes are high. If the denial order is not vacated, this Circuit will be disregarding its own precedents and complicit in hiding nearly all SEC agency enforcement practices from public scrutiny—in perpetuity.

SEC’s denial of the rulemaking petition perpetuates SEC’s 50-year unconstitutional reign of error. “Acquiescence for no length of time can legalize a clear usurpation of power…frequently yielded to merely because it is claimed.” Thomas Cooley, A Treatise on the Constitutional Limitations, 71 (1st ed. 1868).

“The construction given to the laws, by…the executive government, is necessarily ex parte, without the benefit of an opposing argument…[but] the judicial department…is not at liberty to surrender or waive [constitutional rights].” United States v. Dickson, 40 U.S. 141, 161–62 (1841) (Story, J.).

The same principle applies to judicial review under the APA.

Judulang v. Holder, 565 U.S. 42, 61 (2011) (holding that the “vintage” of agency actions is irrelevant and “longstanding capriciousness receives no special exemption from the APA”); see also Fisher v. United States, 425 U.S. 391, 407 (1976) (noting that “illegitimate and unconstitutional practices get their first footing … by silent approaches and slight deviations from legal modes of procedure” which can only be obviated by adherence to the Constitution) (citation omitted).

The founders, who enshrined the right of free speech, a free press, and rights of petition in the First Amendment, would never in their wildest imaginations have envisioned that a mere government agency could silence speech, dictate the content of speech, and compel corrective speech by those who would criticize that agency’s actions.

Congress itself could not enact a law extracting silence as a condition of settlement with the government; a mere administrative agency perforce lacks any such authority.

The Supreme Court recently unanimously recognized in Axon Enter., Inc. v. FTC and Cochran v. SEC, 598 U.S. 175 (2023) (“Axon/Cochran”), that SEC lacks the competence and expertise to decide constitutional questions. Accordingly, the SEC’s self-serving denial of the petition carries no credence in this Court, which is bound by the precedents set forth above. Justice Sotomayor wrote for a unanimous Court in NRA v. Vullo that no government official can “use the power of the State to punish or suppress disfavored expression” and that such “viewpoint discrimination is uniquely harmful to a free and democratic society.” 144 S. Ct. 1316, 1326 (2024).

This Court should vacate SEC’s denial and order rulemaking consistent with the Constitution and the opinion of the Court.

Full Brief: Powell v. SEC

The post Powell v. SEC: SEC-imposed gag order is unconstitutional appeared first on Reason Foundation.

Samantha Alario, et. al.,
Plaintiffs–appellees,

v.

On Appeal from the United States District Court for the District of Montana (Missoula)

Lead Case No. Cv 23-56-M-DWM

Introduction

Montana’s ban on TikTok—an application that hundreds of thousands of people in the state use to communicate, learn about the world, and express themselves—is unconstitutional. As the district court recognized, Senate Bill 419 “completely bans a platform where people speak.” It directly restricts protected speech and association, deliberately singles out a particular medium of expression for a blanket prohibition, and imposes a prior restraint that will make it impossible for users to speak, access information, and associate through TikTok. As a result, the statute triggers an especially exacting form of First Amendment scrutiny.

The district court correctly held SB 419 unconstitutional, but it reached that conclusion after applying only intermediate scrutiny under the First Amendment. While applying the proper standard should not change the outcome in this case, amici urge this court to recognize that under the Supreme Court’s and this court’s precedents, a higher level of First Amendment scrutiny governs here—and would apply to any other government attempt to ban Americans from accessing an entire medium of expression. Amici’s brief sets out the First Amendment standards that apply to the state’s effort to ban a social media platform like TikTok.

First, SB 419 constitutes a prior restraint on TikTok and its users, an especially disfavored means of restricting First Amendment rights. This is because the statute will shut down the app, blocking hundreds of thousands of users in Montana, as well as TikTok itself, from engaging in protected expression “in advance of the time that [their] communications are to occur.” Alexander v. United States, 509 U.S. 544, 550 (1993).

As a result, the district court was required to apply an “extraordinarily exacting” form of strict scrutiny. Columbia Broad. Sys., Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 729 F.2d 1174, 1178 (9th Cir. 1984).

Second, even if this court did not apply strict scrutiny to Senate Bill 419, the state would still have to satisfy a strict narrow-tailoring requirement because the statute is a total ban on a unique and important means of communication. See City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994).

In these circumstances, courts apply an exacting standard: a total ban fails unless it “curtails no more speech than is necessary to accomplish its purpose.” Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984).

Finally, the degree of judicial scrutiny that applies to SB 419 is not diminished by the State’s national security and foreign espionage claims. As both the Supreme Court and this court have made clear, the government’s burden to justify an infringement on First Amendment rights is the same in the national security context as in any other. See, e.g., N.Y. Times Co. v. United States (“Pentagon Papers”), 403 U.S. 713, 729–30 (1971).

In fact, the judiciary has an especially critical role to play in ensuring that the government meets its burden when national security is invoked.

Amici urge the court to see Montana Senate Bill 419 for what it is: a sweeping ban on free expression that triggers the most exacting scrutiny under the First Amendment.

Applying the proper test, this court should affirm the district court’s order granting preliminary injunctive relief under the First Amendment.

Full Amicus Brief: Alario v. Knudsen

The post Alario v. Knudsen: Montana’s TikTok ban is unconstitutional appeared first on Reason Foundation.

Candace Eidson, et al., Petitioners,
v.
South Carolina Department of Education, et al., Respondents, and Henry D. McMaster, et al., Intervenors-respondents.

Brief of Liberty Justice Center, American Federation for Children, Americans for Prosperity Foundation, Manhattan Institute for Policy Research, and Reason Foundation as Amici Curiae In Support of Respondents

Summary of Argument

The Supreme Court has stated that “[e]ducation is perhaps the most important function of state and local governments,” Brown v. Board of Education, 347 U.S. 483, 493 (1954), and South Carolina’s Constitution charges the government with a duty to provide education to children in the state, S.C. Const. art. XI, §3.

Petitioners imply that the Education Scholarship Trust Fund Program (ESTF) will somehow hinder South Carolina in carrying that constitutional mandate.

Not so: the program is designed to provide new opportunities to all eligible families, including a diverse array of students with unique educational needs.

While everyone agrees that all children should have equal access to education, virtually no one thinks the way we educate all children should be uniform, as though we were putting children on an education assembly line. People understand that different children have different needs, preferences, strengths, and weaknesses.

School choice— like South Carolina’s ESTF program—is a tool to provide children equal access to education while recognizing that all children learn in unique ways.

Petitioners’ arguments that such programs are discriminatory cannot be reconciled with the success stories of school choice around the country.

Full Amicus Brief: Eidson v. South Carolina Department of Education

The post Eidson v. South Carolina: School choice program is designed to provide new opportunities to all eligible families appeared first on Reason Foundation.

Dennis Hopkins
v.
Mississippi Secretary of State Michael Watson

On Appeal From The United States District Court For the Southern District of Mississippi, Northern Division

In Case No.3:18-cv-188-dpj-fkb

Brief of Reason Foundation, American Civil Liberties Union, and ACLU Mississippi as Amici Curiae In Support of Plaintiffs-Appellees

Introduction and Summary of the Argument

Mississippi’s lifetime felon disenfranchisement scheme is unique.
The attributes that make it unique support the conclusion that this
particular scheme is cruel and unusual in violation of the Eighth
Amendment.

Mississippi’s lifetime disenfranchisement provision was instituted
in 1890 with the explicit purpose of excluding Black citizens from the political process and restricting their voting power. The taint of invidious racial discrimination, ingrained in Mississippi’s lifetime voting ban and reflected even today in its disparate effects and largely unchanged form, support the conclusion that this particular scheme is cruel and unusual.

The Eighth Amendment is centrally concerned with harms to human dignity, which include the dignitary harms to the individual and to society that flow from state-imposed discrimination.

Mississippi law also conspicuously lacks any non-arbitrary,
accessible process for citizens who have served their sentences to regain the franchise. Instead, it requires a super-majority vote of both houses of the legislature for re-enfranchisement. As a result, Mississippi’s voting ban is mandatory, permanent, and effectively irrevocable—even for certain minor offenses that require no period of incarceration.

Mandatory and irrevocable punishments are especially likely to violate the Eighth Amendment due to their inherent disproportionality. The severity, arbitrariness, and irrevocability of Mississippi’s particular lifetime voting ban also support the conclusion that it is cruel and unusual.

As a result of these features, Mississippi’s lifetime disenfranchisement scheme stands alone among the 50 states. No other state, in the South or elsewhere, still maintains a disenfranchisement scheme so openly originating in Jim Crow discrimination. Almost no other state has a scheme this severe and irrevocable. Indeed, the national consensus among the states—another salient Eighth Amendment consideration—is towards expanding and regularizing re-entry into civic life for those who have served their time, to the benefit of the individual and society.

Based on the unique elements of this particular irrevocable lifetime
voting ban, the Court can and should conclude that the challenged
scheme is cruel and unusual in violation of the Eighth Amendment.

…Mississippi’s mandatory, irrevocable, lifetime disenfranchisement
scheme, rooted in noxious racism, and unique in its arbitrariness and severity, is cruel and unusual.

Conclusion

Mississippi’s lifetime disenfranchisement scheme should be invalidated.

Full Brief of Reason Foundation, American Civil Liberties Union, and ACLU Mississippi as Amici Curiae In Support of Plaintiffs-Appellees

The post Hopkins v. Watson: Mississippi’s lifetime disenfranchisement scheme should be invalidated appeared first on Reason Foundation.

Ashley Moody, Attorney General of Florida, et al.,
Petitioners,
v.
NetChoice, LLC, et al.,

NetChoice, LLC, et al.,
Petitioners,
v.
Ken Paxton, Attorney General of Texas

On Writs of Certiorari to the United States Courts of Appeals for the Fifth and Eleventh Circuits

Brief of Reason Foundation, Committee For Justice, Competitive Enterprise Institute, and Taxpayers Protection Alliance as Amici Curiae in Support of Respondents In No. 22-277 and Petitioners in No. 22-555

Conclusion

The editorial decisions and content moderation policies of social media platforms, large or small, are exercises of the freedom of speech, the freedom of the press, and the freedom of association protected by the First Amendment.

Efforts to force such companies to convey or associate with viewpoints or persons with which or whom they disagree or otherwise choose to disassociate from thus violate the First Amendment. That such private choices to disassociate may deny the person so rejected the benefits of such association with a popular platform and its users does not convert the platforms into common carriers, public accommodations, or anything else that can justify restrictions on their First Amendment rights.

Popular speakers, television hosts, newspapers, or interactive media organizers do not lose their First Amendment associational rights merely because they reach a bigger audience than alternative speakers, organizers, or online communities. That a rejected speaker cannot persuade a sufficient audience to listen to them is a flaw in the speaker, not the channels of communication.

Listeners make and can remake their own choices and overwhelmingly favor interactive speech platforms with content moderation policies that best match their own preferences.

Finally, whatever benefits the government may provide to corporations generally or to interactive media platforms specifically, none of those change the protected nature of the expressive and associational choices made by those companies.

For the foregoing reasons and the reasons discussed in the NetChoice party briefs, the decision of the Fifth Circuit should be reversed, the decision of the Eleventh Circuit should be affirmed, and both the Florida and Texas statutes should be held to violate the First Amendment.

Full Amicus Brief: Moody v. NetChoice, LLC

The post Moody v. NetChoice, Paxton v. NetChoice: Florida and Texas statutes violate the First Amendment appeared first on Reason Foundation.

Chris Quinn, et al, Petitioners

v.

Washington, et al, Respondents

On Petition for Writ of Certiorari to the Supreme Court of Washington

Brief of Washington Policy Center, Opportunity For All Coalition, Americans for Tax Reform, California Policy Center, Grassroot Institute of Hawaii, Illinois Policy Institute, Independence Institute, National Taxpayers Union Foundation, Manhattan Institute, Mountain States Policy Center, Oklahoma State Chamber Research Foundation, Reason Foundation, and Tax Foundation as Amici Curiae in Support of Petitioners

This court’s review is needed to ensure that the Washington Supreme Court’s decision does not become a playbook for other states to enact their own extraterritorial excise taxes—thereby taking unfair advantage of their neighbors, compromising the decisional autonomy of sister states, warping incentives for lawmakers, and throwing the constitution’s carefully calibrated system of interstate competition and comity into disarray.

The petition should be granted.

Amicus Brief: Quinn v. Washington

The post Amicus Brief: Quinn v. Washington appeared first on Reason Foundation.

Excerpt: Summary of Argument

1. Whether a particular person is an Officer, and thus subject to the Appointments Clause, is governed by a simple test: whether, as a “continuing and permanent” matter, that person “exercis[es] significant authority pursuant to the laws of the United States.” The members of the Horseracing Integrity and Safety Authority are plainly Officers by that standard.
2. Whether the members of the Authority are nominally private is unimportant for Officer status. The statutory labeling of the Authority as private, and the fact that the Authority is organized as a private organization under state law, are constitutionally irrelevant, and in any event Appointments Clause doctrine does not demand that an Officer formally be a public employee.
3. The District Court’s use of a rigid public-private distinction here was misguided. First, the fact that the members of the Authority wield quintessentially governmental powers—rulemaking, investigation, and enforcement—means that they should be considered public for Appointments Clause purposes, regardless of whether they are classified as private under the statute or under state law. Second, to the extent some public-private distinction is relevant here, that distinction can apply differently for different doctrines, so it is a mistake to use public-private distinctions from the Appointments Clause, the Nondelegation Doctrine, and the State Action Doctrine interchangeably. Thus, the previous panel’s assumption that the Authority was private for Nondelegation Doctrine purposes does not foreclose this Appointments Clause challenge, even if one believes that the Appointments Clause does not apply to private entities.And third, regardless of the public-private distinction, notions of political accountability demand that the Authority be subject to Appointments Clause constraints.
4. Even if the District Court were correct to assume that the State Action Doctrine is relevant here, it was wrong to determine that the Authority is not a state actor. On the contrary, this is an easy case for state action, because rulemaking, investigation, and enforcement of federal law are traditionally exclusive public functions.
5. The December 2022 statutory amendment does not change any of the foregoing, because it leaves all of the Authority’s powers intact. In the limited context of rulemaking, it is now true that the FTC may alter any rule promulgated by the Authority. But unless and until the FTC conducts a rulemaking to do so, the Authority’s rules remain binding. At most, this limited FTC oversight is possibly relevant to whether the Authority members are principal or inferior Officers.

The post National Horsemen’s Benevolent and Protective Association v. Black appeared first on Reason Foundation.

The Honorable District Judge Douglas Harpool

Case No. 6:21-cv-03219-mdh

Amicus Brief of Americans for Prosperity Foundation, Alliance Defending Freedom, Foundation for Individual Rights and Expression, Defense of Freedom Institute for Policy Studies, Reason Foundation, and The American Civil Liberties Union of Missouri In Support Of Plaintiffs-Appellants and Reversal

Summary of Argument

Amici regularly advocate on behalf of civil rights plaintiffs and their interests. Their clients generally do not have deep pockets but bring cases of constitutional merit, sometimes presenting cutting-edge legal theories and occasionally recovering fees under section 1988. They are just the type of plaintiffs Congress sought to support in implementing Sections 1983 and 1988. But, if, as here, these clients risk bearing the legal fees of government defendants, they would hesitate to file suit, chilling the protection of their own civil rights and the development of the law.

Uncritically awarding government officials hundreds of thousands of dollars defeats the purpose of our fundamental civil rights statutes, prevents the vindication of vital constitutional protections, and stagnates the law. Congress enacted section 1983 to provide a forum in which those injured by state action can vindicate their rights because, by violating constitutional rights, state officials had abdicated their role to enforce and uphold the law. To fulfill the promise of section 1983, Congress amended section 1988 to allow prevailing parties to recover attorney’s fees. Congress recognized that civil rights litigation both provides remedies for injured citizens and vindicates our constitutional guarantees—benefitting the whole country. To enable those injured to obtain the competent representation necessary for such a suit, Congress provided for fee-shifting.

State officials can recover their fees in only the most extreme cases. To avoid discouraging those injured from vindicating their fundamental rights, Congress and the courts have required a determination that a plaintiff’s suit is “frivolous.” Any higher standard would threaten plaintiffs—who often do not have many resources—with large monetary liabilities and discourage them from filing suit to vindicate exactly those rights Congress wanted vindicated. That, in turn, would stagnate the law. Attorney’s fees awards for state officials chill both citizens and attorneys from bringing novel claims for fear of those arguments being deemed frivolous. But some of our most fundamental guarantees—such as the prohibition on religious discrimination in the award of public benefits and protection for criticism of law enforcement—have been vindicated only by challenging longstanding laws seemingly backed by history and precedent.

Plaintiffs here demonstrated more than enough to overcome the low frivolous barrier, providing evidence that Defendants both censored and compelled their speech. The district court found that “political disagreement” motivated Plaintiffs’ lawsuit, so it did not properly conduct the analysis required by the First Amendment and instead relied entirely on the political questions doctrine. But speech on political issues deserves more protection, not less. And Congress opened federal courts precisely to protect our most fundamental guarantees—like the utmost protection given political speech, even with novel claims or issues of first impression. What’s more, in awarding attorney’s fees, the district court did not do the required lodestar analysis. It awarded Defendants their full amount of claimed fees for their full amount of claimed hours—over $300,000 for over 1,500 hours—despite allowing the case to proceed to summary judgment and without analyzing the reasonableness of the request.

With section 1983, Congress threw open the doors of federal courts to vindicate constitutional and civil rights. Seeing that some victims of governmental overreach could not afford to vindicate those rights, the legislature extended section 1983’s promise by providing for attorney’s fees. To avoid hollowing out both section 1983 and section 1988, this court should reverse the district court’s order granting Defendants attorney’s fees. If allowed to stand, that order will chill citizens who have suffered constitutional and civil rights violations from seeking remedies in federal court. And that’s the exact opposite of what our civil rights legislation mandates.

The post Brooke Henderson, et al. v. School District of Springfield R-12, et al. appeared first on Reason Foundation.

JONATHAN ROBERTS and CHARLES VAVRUSKA, Petitioners,
v.
JAMES V. MCDONALD, in his official capacity as Commissioner for New York State Department of Health, et al., Respondents.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit

Brief Amicus Curiae of the Center For Equal Opportunity, The Kirkwood Institute, Manhattan Institute, and Reason Foundation in support of petitioners

Questions Presented

During the COVID-19 pandemic, the U.S. Food and Drug Administration granted emergency approval for lifesaving oral antiviral treatments, Facing a severe shortage of these treatments, the State of New York and New York City issued directives instructing medical providers to prioritize treatments to individuals on the basis of race.

Petitioners are New York City residents who are disadvantaged by the directives’ racial criteria. The Second Circuit held that being disadvantaged for lifesaving treatments on account of race was not an “actual or imminent” injury. It required Petitioners to show they were denied treatment on the basis of race. Because the antiviral treatments must be taken within five days of symptom onset, the lowers court’s decision effectively shields the government’s race-based directives from judicial review.

The questions presented are:

1. Whether plaintiffs’ injury is imminent where it flows from a predictable course of events that results from the defendant’s conduct.

2. Whether the Second Circuit’s ruling conflicts with Ne. Fla. Chapter of Assoc. Gen. Contractors of America v. City of Jacksonville, Fla., 508 U.S. 656, 666 (1993), which holds that the “injury in fact in an equal protection case” involving racial discrimination “is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.”

Summary of Argument

The Court has repeatedly held that those challenging a racial classification suffer an actual injury when they encounter a barrier that does not allow them to compete for public benefits on an equal footing. Petitioners further attested to their interest in obtaining the antiviral treatments if they became necessary. They thereby demonstrated both an actual and an imminent injury, which is sufficient to show standing. The lower courts’ decisions to the contrary are erroneous. Respondents’ plan to use race as a plus factor when distributing scarce antiviral treatments is plainly unconstitutional. The program does not serve a compelling state interest, so it fails strict scrutiny.

Amicus Brief: Roberts v. McDonald

The post Amicus Brief: Roberts v. McDonald appeared first on Reason Foundation.

Jeffrey Memmer, Gilbert Effinger, Larry Goebel, Susan Goebel, Owen Halpeny, Joseph Jenkins,
Michael Martin, Rita Martin, Mcdonald Family Farms Of Evansville, Inc., Reibel Farms, Inc., James Schmidt, Robin Schmidt, Plaintiffs-appellants,

v.

United States, Defendant-cross-appellant.

On Appeal From The United States Court Of Federal Claims In Case No. 1:14-cv-00135-mms,

Honorable Margaret M. Sweeney, Senior Judge

Brief for National Association of Reversionary Property Owners, Cato Institute, Owners’ Counsel of
America, Southeastern Legal Foundation, Reason Foundation, and Professor James W. Ely, Jr., as Amici
Curiae In Support of Appellants Jeffrey Memmer, et al., urging denial of the United States’ petition for rehearing en banc.

Arguments

The Trails Act is a per se taking for which the government has a “categorical” obligation to pay the landowner.

A landowner’s right to compensation arises immediately when the Trails Act is invoked and does not depend upon the railroad and trail-sponsor reaching a private agreement.

Encumbering an owner’s land with a Trail Act easement is a per se taking, not a “regulatory” taking subject to Penn Central analysis.

Conclusion

In Leo Sheep Co. v. United States, the Supreme Court explained, “this Court has traditionally recognized the special need for certainty and predictability where land titles are concerned, and we are unwilling to upset settled expectations to accommodate some ill-defined power to construct public thoroughfares without compensation.” 440 U.S. 668, 687-88 (1979).

The Supreme Court reaffirmed this principle in Brandt, stating, “[w]e decline to endorse [the government’s] stark change in position, especially given ‘the special need for certainty and predictability where land titles are concerned.’” 572 U.S. at 110 (quoting Leo Sheep, 440 U.S. at 687-88).

Chief Justice Roberts, “[t]he Government loses [its] argument today, in large part because it [previously] won when it argued the opposite before this Court***.” Brandt, 572 U.S. at 102. So too here.

This Court should deny the government’s petition because the government fails to provide any reason why this Court should sit en banc to overturn thirty years of this Court’s Trails Act jurisprudence and adopt a new rule contrary to the Supreme Court’s Takings Clause jurisprudence.

Amicus Brief: Memmer v. United States

The post Amicus Brief: Memmer v. United States appeared first on Reason Foundation.

In the Supreme Court of the United States 

REYNALDO GONZALEZ, ET AL., Petitioners,

v.

GOOGLE LLC. 

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit 

Brief for Reason Foundation as Amicus Curiae supporting respondent

SUMMARY OF ARGUMENT

I. For nearly three decades, Section 230 has served as the backbone of the Internet, precisely as Congress correctly anticipated and intended. The legislatively enacted congressional findings and purpose favor an expansive reading of Section 230’s protections in the event of any uncertainty or perceived ambiguity in the language of Section 230(c)(1).

A. Section 230’s benefits were by design, even if Congress could not have predicted every detail—or challenge—of a growing Internet. What Congress did know is that, for the Internet to grow, it had to be left alone without fear of the “litigation minefield,” Resp. Br. 19, that would cripple its expansion in its infancy if the providers and users of interactive computer services could be found liable for the content created by others. Congress thus enacted Section 230 with a list of policy statements that show what it intended and expected the statute to do: protect platforms and users from liability for the speech of others and promote the growth and use of interactive computer services.

Congress explained that the goal of Section 230 is to “promote the continued development of the Internet” by, among other things, “encourag[ing] the development of technologies which maximize user control over what information is received by” those “who use the Internet and other interactive computer services.” Id. (b)(1), (3). Section 230 has done that. Congress also expressed the importance of “preserv[ing]the vibrant and competitive free market that present.ly exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” Id. (b)(2) (emphasis added). Section 230 has created that world, too.

Those policy statements are not mere pieces of legislative history entered into the Congressional Record by opportunistic politicians or their staffers—to the contrary, they are the product of bicameralism and presentment just like any other duly enacted legislation. And such statements are entitled controlling weight regarding what policy considerations might potentially influence the interpretation of Section 230. Whether Section 230 creates good policy is not a question for this Court to decide. That question remains where it was in 1996—with Congress.

B. Even years after Congress’s legislative findings and purpose, Section 230 has overwhelmingly fulfilled such legislative predictions and goals. By providing immunity from liability for the content posted by others, it has allowed for the development of new technologies that make it easier for everyone to find information online, to organize and to let others help organize the information they receive, and to associate both directly and indirectly with people around the world sharing common interests. These advances in technology have also led to the development of all manner of social media sites, including video-based platforms, dating apps, and even improved traditional chatrooms providing users many of the same organization tools as providers themselves.

The improved ability to find and organize information online is only one of the many benefits of Section 230. It also has led to an exponential growth in the amount of speech online. As providers have innovated and users have enthusiastically participated in online speech free from “the “specter of liability,” Zeran v. America Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997), interactive computer services have made it easier for ideas to spread than ever before in human history. Through retweets and other user engagements, the views and content created by even the poorest Americans can spread around the country and world in a way that wouldn’t have been possible just twenty years ago.

Other benefits from Section 230 abound. The economic benefits to innovators, providers, users, and the economy as a whole have been tremendous. It has facilitated the gig economy by allowing individuals and small businesses to flourish on websites provided by bigger platforms. It has also allowed consumers to directly review products and other services, make those reviews readily available online for the next consumer, and pass along or comment upon reviews by others, thus democratizing the marketplace of products and services as well as the marketplace of ideas. Thus, insofar as such practical considerations matter to the interpretation of Section 230(c)(1), the findings and purposes of Congress are not only controlling, they are right.

II. The language of Section 230 both reflects such Congressional policy and confirms that Respondent should prevail in this case.

A. An “interactive computer service” “provides or enables computer access by multiple users to a computer server.” 47 U.S.C. § 230(f)(2). “Interactive computer services” expressly include “access software providers,” which—as relevant here—are providers of software or tools that can “pick, choose, analyze, or digest,” “transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.” Id. (f)(2), (4)(B), (C). The providers of such services and their users can both create their own information content and can organize, transmit, and provide access to information content provided by others.

B. YouTube’s algorithm, which organizes and reorganizes the content uploaded to YouTube by others, thus performs a function which Congress expressly included in the definition of an interactive computer service. Indeed, as both a provider and user of such software, Respondent falls squarely within the class protected by Section 230(c)(1). Insofar as Petitioners are seeking to hold Google liable for the consequences of having presented or organized the “information provided by another,” rather than for creating and publishing Google’s own information content, Section 230(c)(1) bars such liability.

To the extent any given algorithm or other organizational policy or choice might be said to create Google’s own “content,” the further question becomes the precise parameters of such content as distinguished from the content of others. That distinction helps clarify that even where an algorithm or other organizational action or policy itself might create some information content (appending a warning label for example), a user or provider may only be held responsible for that information alone, and not the underlying information “provided by another.” Alternatively, if YouTube or any other user of its service were to expressly adopt or endorse the information content of another as its own, such adopted content may well fall outside of Section 230’s protection.

But merely identifying, organizing, or even recommending the content of another is a far cry from adopting it as your own. YouTube’s algorithm, for example, analyzes different users’ activity and viewing behavior to predict what that user might find interesting and to organize further information content provided by others according to such predictions. Though the algorithm’s analysis and predictions are more automated and sophisticated than manual efforts to organize or recommend content in a manner appealing to users, it remains fundamentally the same as the manual choices exercised by chatroom moderators, bloggers, and indeed, any individual user who selects, reposts, “likes,” or otherwise passes along the information content of others in a way such user believes might be interesting or appealing to her followers and potential followers. Such organizational effort by both providers and users of interactive computer services is precisely what Congress anticipated and intended to encourage via Section 230, and the text provides broad protection reflecting that purpose.

The post Amicus Brief: Gonzalez v. Google appeared first on Reason Foundation.