Constitutional Law

Reloaded: What’s Next for Guns After Cargill & Rahimi?

December 5, 2024
Constitutional Law, Litigation, Public Safety, Second Amendment, Weapon Law

Evan Bracewell, MJLST Staffer

In 2024, the Supreme Court released two major opinions related to gun safety laws, United States v. Rahimi and Garland v. Cargill.^[1] Rahimi involved what types of people can possess guns.^[2] Cargill involved what types of guns (or more accurately gun technology) people can possess.^[3] In Cargill, the Supreme Court struck down an ATF rule that banned bump stocks.^[4] A bump stock is an attachment added to a gun which uses the momentum of the gun’s kick to bump the gun between the shooter’s shoulder and trigger finger back and forth causing an increased fire rate.^[5] To some, this signaled “another example of the [C]ourt’s hostility towards gun regulation in general.”^[6] However, one week after Cargill was decided, the Court ruled in favor of a federal gun safety law in U.S. v. Rahimi. In Rahimi, the Court upheld a federal statute that “prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he ‘represents a credible threat to the physical safety of [an] intimate partner,’ or a child of the partner or individual.”^[7]

These two cases were the first major rulings on gun safety from the Supreme Court since it established the Bruen framework for handling gun control laws.^[8] In New York State Rifle & Pistol Ass’n v. Bruen, the Court held “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation . . . the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”^[9] This means that for cases where someone is alleging a law has violated a citizen’s Second Amendment rights, in order for the law to survive, judges must find a comparison for the modern law in American regulatory traditions. Following the Bruen framework, uncertainty and confusion spread across the lower courts tasked with applying the historical comparison to modern statutes.^[10] Because Cargill concerned an ATF regulation over whether a bump stock fits into the definition of machine guns and was not a Second Amendment challenge, it did not employ the Bruen framework.^[11] Rahimi, however, was the Court’s chance to clarify the Bruen test—a chance some say it failed to capitalize on.^[12]

The Bruen analysis has received criticism from a wide range of judges.^[13] A common issue brought up with Bruen is that it demands judges to be historical researchers and experts and make fact finding on the history of gun control laws.^[14] This can result in unpredictable and inconsistent results.^[15] Other judges have pointed out that the test may entrench gun laws in the past without any room for modern solutions.^[16] The Bruen test has left some judges scratching their heads over history textbooks. When it is combined with the differing outcomes of Cargill and Rahimi, the future of gun laws appears cloudy. On the other hand, it also makes upcoming gun cases potentially incredibly impactful.

Looking ahead, the next significant Supreme Court case on the topic might already be in motion. A petition for certiorari in Bianchi v. Brown has been filed and if granted could be a pivotal decision for gun safety.^[17] In Bianchi, the Fourth Circuit recently re-evaluated Maryland’s state law that generally prohibits the sale and possession of assault weapons through a Bruen analysis.^[18] The majority decided the law was constitutional because the assault weapons specifically restricted by it are not protected by the Second Amendment and, even if they were, there is a “historical tradition of restricting the use and possession of weapons exceptionally dangerous to civilians.”^[19] The Fourth Circuit ultimately upheld a strict gun technology law even in a post-Bruen world.

If the Supreme Court chooses to hear this case, the resulting decision could produce monumental shockwaves for gun laws. Eight other states have adopted assault weapon bans similar to Maryland’s,^[20] and an opinion upholding the ban might spark more states to adopt a similar statute. Not to mention, it could demonstrate how the judicial branch may approach a federal ban on assault weapons.^[21] The Supreme Court striking down the ban would be a major obstruction to the potential for future strict gun control laws. If the case is heard, hopefully the Supreme Court will use the opportunity to clarify the “labyrinth”^[22] that is Bruen which could allow for more predictability in legislating gun technology and safety.

The difference in the rulings of Rahimi and Cargill could be viewed as the Court being more comfortable with laws regulating who can possess guns than rules regulating what gun technology people can possess. Viewing Bianchi through that lens, the Maryland statute may be deemed unconstitutional because it is a ban on guns, not a ban on who can possess guns. However, the Supreme Court could appreciate the Fourth Circuit’s examination of the law under the Bruen framework and comparison to 18th and 19th century regulations of “pistols, bowie knives, brass knuckles, and sand clubs, among other weapons” as excessively dangerous to the public.^[23]

Bianchi is not the only case on the horizon for gun laws. “[E]ven if the Court declines to take up the pending [Bianchi v. Brown] petition, it will almost certainly see more petitions soon.”^[24] The next major gun technology case will be decided by the Supreme Court this term in Garland v. VanDerStok. That case concerns a “federal rule regulating so-called ‘ghost guns’” which are “untraceable weapons without serial numbers, assembled from components or kits that can be bought online.”^[25] Other future gun cases could concern a recently overturned Illinois state law banning certain assault weapons,^[26] the minimum age to purchase guns,^[27] Connecticut’s ban on assault rifles and large-capacity magazines,^[28] or red flag laws that allow a law enforcement agency to temporarily prevent someone deemed an extreme risk from possessing guns.^[29]

“Rahimi’s greatest takeaway is likely that the court faces a challenging landscape ahead, which it will have to wade through largely on a case-by-case basis.”^[30] The Supreme Court could use a case like Bianchi to clarify the post-Bruen world, bring a sliver of stability to gun laws, and maybe even alleviate the concerns of judges nationwide entrenched in history books.

Notes

^[1] United States v. Rahimi, 144 S. Ct. 1889 (2024); Garland v. Cargill, 602 U.S. 406 (2024).

^[2] See Rahimi, 144 S. Ct. at 1894.

^[3] See Cargill, 602 U.S. at 410.

^[4] Id. at 415.

^[5] Larry Buchanan et al., What Is a Bump Stock and How Does It Work?, N.Y. Times, https://nyti.ms/43NEi6b (last updated June 14, 2024).

^[6] Joel Brown, Supreme Court Strikes Down Ban on Gun Bump Stocks, BU Today (June 14, 2024) https://www.bu.edu/articles/2024/supreme-court-strikes-down-ban-on-gun-bump-stocks/ (quoting Cody Jacobs, a Boston University School of Law lecturer).

^[7] Rahimi, 144 S. Ct. at 1894 (referencing 18 U.S.C. § 922(g)(8)).

^[8] See Michael McCarthy, Justices’ 1st Post-Bruen Gun Ruling Provides Little Guidance, Law360 (June 28, 2024, 4:41 PM), https://www.law360.com/articles/1852462/justices-1st-post-bruen-gun-ruling-provides-little-guidance.

^[9] N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2024).

^[10] Dave S. Sidhu, Cong. Rsch. Serv., LSB11219, Divided En Banc Federal Appeals Court Rejects Second Amendment Challenge to Maryland’s Ban on “Assault Weapons” 3 (2024) (“Six judges joined the majority opinion in full but wrote separately to highlight the ‘confusion’ that lower courts are experiencing in applying Bruen.”).

^[11] Garland v. Cargill, 602 U.S. 406 (2024).

^[12] Adam Liptak, Supreme Courtʼs Gun Rulings Leave Baffled Judges Asking for Help, N.Y. Times (Sept. 23, 2024), https://www.nytimes.com/2024/09/23/us/supreme-court-guns-second-amendment.html (“Chief Judge Diaz was not convinced. The Rahimi decision, he wrote, ‘offered little instruction or clarity.’”).

^[13] Clara Fong et al., Judges Find Supreme Court’s Bruen Test Unworkable, Brennan Ctr. for Just. (June 26, 2023), https://www.brennancenter.org/our-work/research-reports/judges-find-supreme-courts-bruen-test-unworkable (“In the short time since Bruen was issued, federal judges appointed by Presidents Reagan, Clinton, George W. Bush, Obama, Trump, and Biden have all questioned the opinion.”).

^[14] Id.; Liptak, supra note 12 (Quoting Judge Pamela Harris speaking at a conference and describing the issue of receiving two competing briefs where one says something happened in history and the other claims it did not happen).

^[15] United States v. Bartucci, 658 F. Supp. 3d 794, 800 (2023) (“In the short time post-Bruen, this has caused disarray among the lower courts when applying the new framework.”).

^[16] See Worth v. Harrington, 666 F. Supp. 3d 902, 926 (2023) (“Second Amendment jurisprudence now focuses a lens entirely on the choices made in a very different time, by a very different American people.”); Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 3 (“More broadly, the six judges cautioned that overemphasizing the importance of historical analogues may ‘fossilize’ modern legislative attempts and ‘paralyze’ democratic efforts.”).

^[17] Andrew Willinger, An Update on Challenges to State Assault Weapon and Magazine Bans, Duke Ctr. for Firearms L. (Nov. 6, 2024), https://firearmslaw.duke.edu/2024/11/an-update-on-challenges-to-state-assault-weapon-and-magazine-bans. It should be noted that the case will be re-named Snope v. Brown if the Supreme Court decides to hear it but Bianchi is used throughout this blog post to avoid confusion.

^[18] Bianchi v. Brown, 111 F.4th 438, 442 (4th Cir. 2024) (en banc) (referencing Md. Code Ann., Crim. Law § 4-303 (West 2018)) (“The statute defines ‘assault weapon’ as ‘(1) an assault long gun; (2) an assault pistol; or (3) a copycat weapon.’”).

^[19] Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 3.

^[20]Which States Prohibit Assault Weapons?, Everytown Rsch. & Pol’y, https://everytownresearch.org/rankings/law/assault-weapons-prohibited/ (last updated Jan. 4, 2024).

^[21] Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 4. (“Judicial evaluations of similar state bans, like Maryland’s, under the Second Amendment may provide an indication of how a federal ban could fare in the courts.”).

^[22] Bianchi, 111 F.4th at 473–74 (Diaz, C.J., concurring) (“Bruen has proven to be a labyrinth for lower courts, including our own, with only the one-dimensional history-and-tradition test as a compass.”).

^[23] Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 3.

^[24] Willinger, supra note 17. The Court remanded several cases after Rahimi that could eventually make their way back to the Supreme Court. These cases involve prohibitions on gun possession by certain nonviolent offenders of crimes, certain drug users, and certain people with felony convictions. Dave S. Sidhu, Cong. Rsch. Serv., LSB1108, The Second Amendment at the Supreme Court: Challenges to Federal Gun Laws 2–4 (2024).

^[25] Amy Howe, Court Likely to Let Biden’s “Ghost Gun” Regulation Stand, SCOTUSblog (Oct. 8, 2024, 5:07 PM), https://www.scotusblog.com/2024/10/court-likely-to-let-bidens-ghost-gun-regulation-stand/.

^[26] Lauren Berg, Ill. Assault Rifle Ban Struck As Unconstitutional, AG To Appeal, Law360 (Nov. 8, 2024, 11:44 PM), https://www.law360.com/articles/2259026/ill-assault-rifle-ban-struck-as-unconstitutional-ag-to-appeal.

^[27] Daniel Ducassi, 10th Circ. Backs Colorado Age Limits For Gun Buyers, Law360 (Nov. 6, 2024, 10:43 PM), https://www.law360.com/articles/2257228/10th-circ-backs-colorado-age-limits-for-gun-buyers.

^[28] Aaron Keller & Brian Steele, 2nd Circ. Scrutinizes Conn. Restrictions On AR-15s, Law360 (Oct. 16, 2024, 8:39 PM), https://www.law360.co.uk/articles/1890635/2nd-circ-scrutinizes-conn-restrictions-on-ar-15s.

^[29] George Woolston, Attorney Says NJ Red Flag Law Violates 2nd Amendment, Law360 (Oct. 28, 2024, 4:57 PM), https://www.law360.com/pulse/articles/2252661/attorney-says-nj-red-flag-law-violates-2nd-amendment.

^[30] McCarthy, supra note 8.

Privacy at Risk: Analyzing DHS AI Surveillance Investments

November 22, 2024
Administrative Law, Agencies, Artificial Intelligence, Constitutional Law, Forensic Evidence, Law Enforcement, Public Safety, Regulatory

Noah Miller, MJLST Staffer

The concept of widespread surveillance of public areas monitored by artificial intelligence (“AI”) may sound like it comes right out of a dystopian novel, but key investments by the Department of Homeland Security (“DHS”) could make this a reality. Under the Biden Administration, the U.S. has acted quickly and strategically to adopt artificial intelligence as a tool to realize national security objectives.[1] In furtherance of President Biden’s executive goals concerning AI, the Department of Homeland Security has been making investments in surveillance systems that utilize AI algorithms.

Despite the substantial interest in protecting national security, Patrick Toomey, deputy director of the ACLU National Security Project, has criticized the Biden administration for allowing national security agencies to “police themselves as they increasingly subject people in the United States to powerful new technologies.”[2] Notably, these investments have not been tailored towards high-security locations—like airports. Instead, these investments include surveillance in “soft targets”—high-traffic areas with limited security: “Examples include shopping areas, transit facilities, and open-air tourist attractions.”[3] Currently, due to the number of people required to review footage, surveilling most public areas is infeasible; however, emerging AI algorithms would allow for this work to be done automatically. While enhancing security protections in soft targets is a noble and possibly desirable initiative, the potential privacy ramifications of widespread autonomous AI surveillance are extreme. Current Fourth Amendment jurisprudence offers little resistance to this form of surveillance, and the DHS has both been developing this surveillance technology themselves and outsourcing these projects to private corporations.

To foster innovation to combat threats to soft targets, the DHS has created a center called Soft Target Engineering to Neutralize the Threat Reality (“SENTRY”).[4] Of the research areas at SENTRY, one area includes developing “real-time management of threat detection and mitigation.”[5] One project, in this research area, seeks to create AI algorithms that can detect threats in public and crowded areas.[6] Once the algorithm has detected a threat, the particular incident would be sent to a human for confirmation.[7] This would be a substantially more efficient form of surveillance than is currently widely available.

Along with the research conducted through SENTRY, DHS has been making investments in private companies to develop AI surveillance technologies through the Silicon Valley Innovation Program (“SVIP”).[8] Through the SVIP, the DHS has awarded three companies with funding to develop AI surveillance technologies that can detect “anomalous events via video feeds” to improve security in soft targets: Flux Tensor, Lauretta AI, and Analytical AI.[9] First, Flux Tensor currently has demo pilot-ready prototype video feeds that apply “flexible object detection algorithms” to track and pinpoint movements of interest.[10] The technology is used to distinguish human movements and actions from the environment—i.e. weather, glare, and camera movements.[11] Second, Lauretta AI is adjusting their established activity recognition AI to utilize “multiple data points per subject to minimize false alerts.”[12] The technology generates automated reports periodically of detected incidents that are categorized by their relative severity.[13] Third, Analytical AI is in the proof of concept demo phase with AI algorithms that can autonomously track objects in relation to people within a perimeter.[14] The company has already created algorithms that can screen for prohibited items and “on-person threats” (i.e. weapons).[15] All of these technologies are currently in early stages, so the DHS is unlikely to utilize these technologies in the imminent future.

Assuming these AI algorithms are effective and come to fruition, current Fourth Amendment protections seem insufficient to protect against rampant usage of AI surveillance in public areas. In Kyllo v. United States, the Court placed an important limit on law enforcement use of new technologies. The Court held that when new sense-enhancing technology, not in general public use, was utilized to obtain information from a constitutionally protected area, the use of the new technology constitutes a search.[16] Unlike in Kyllo, where the police used thermal imaging to obtain temperature levels on various areas of a house, people subject to AI surveillance in public areas would not be in constitutionally protected areas.[17] Being that people subject to this surveillance would be in public places, they would not have a reasonable expectation of privacy in their movements; therefore, this form of surveillance likely would not constitute a search under prominent Fourth Amendment search analysis.[18]

While the scope and accuracy of this new technology are still to be determined, policymakers and agencies need to implement proper safeguards and proceed cautiously. In the best scenario, this technology can keep citizens safe while mitigating the impact on the public’s privacy interests. In the worst scenario, this technology could effectively turn our public spaces into security checkpoints. Regardless of how relevant actors proceed, this new technology would likely result in at least some decline in the public’s privacy interests. Policymakers should not make a Faustian bargain for the sake of maintaining social order.

Notes

[1] See generally Joseph R. Biden Jr., Memorandum on Advancing the United States’ Leadership in Artificial Intelligence; Harnessing Artificial Intelligence to Fulfill National Security Objectives; and Fostering the Safety, Security, and Trustworthiness of Artificial Intelligence, The White House (Oct. 24, 2024), https://www.whitehouse.gov/briefing-room/presidential-actions/2024/10/24/memorandum-on-advancing-the-united-states-leadership-in-artificial-intelligence-harnessing-artificial-intelligence-to-fulfill-national-security-objectives-and-fostering-the-safety-security/ (explaining how the executive branch intends to utilize artificial intelligence in relation to national security).

[2] ACLU Warns that Biden-Harris Administration Rules on AI in National Security Lack Key Protections, ACLU (Oct. 24, 2024, 12:00 PM), https://www.aclu.org/press-releases/aclu-warns-that-biden-harris-administration-rules-on-ai-in-national-security-lack-key-protections.

[3] Jay Stanley, DHS Focus on “Soft Targets” Risks Out-of-Control Surveillance, ALCU (Oct. 24, 2024), https://www.aclu.org/news/privacy-technology/dhs-focus-on-soft-targets-risks-out-of-control-surveillance.

[4] See Overview, SENTRY, https://sentry.northeastern.edu/overview/#VSF.

[5] Real-Time Management of Threat Detection and Mitigation, SENTRY, https://sentry.northeastern.edu/research/ real-time-threat-detection-and-mitigation/.

[6] See An Artificial Intelligence-Driven Threat Detection and Real-Time Visualization System in Crowded Places, SENTRY, https://sentry.northeastern.edu/research-project/an-artificial-intelligence-driven-threat-detection-and-real-time-visualization-system-in-crowded-places/.

[7] See Id.

[8] See, e.g., SVIP Portfolio and Performers, DHS, https://www.dhs.gov/science-and-technology/svip-portfolio.

[9] Id.

[10] See Securing Soft Targets, DHS, https://www.dhs.gov/science-and-technology/securing-soft-targets.

[11] See pFlux Technology, Flux Tensor, https://fluxtensor.com/technology/.

[12] See Securing Soft Targets, supra note 10.

[13] See Security, Lauretta AI, https://lauretta.io/technologies/security/.

[14] See Securing Soft Targets, supra note 10.

[15] See Technology, Analytical AI, https://www.analyticalai.com/technology.

[16] Kyllo v. United States, 533 U.S. 27, 33 (2001).

[17] Cf. Id.

[18] See generally, Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (explaining the test for whether someone may rely on an expectation of privacy).

A Nation of Misinformation? the Attack on the Government’s Efforts to Stop Social Media Misinformation

November 7, 2023
Constitutional Law, First Amendment, Internet, Social Media

Alex Mastorides, MJLST Staffer

Whether and how misinformation on social media can be curtailed has long been the subject of public debate. This debate has increasingly gained momentum since the beginning of the COVID-19 pandemic, at a time when uncertainty was the norm and people across the nation scrambled for information to help them stay safe. Misinformation regarding things like the origin of the pandemic, the treatment that should be administered to COVID-positive people, and the safety of the vaccine has been widely disseminated via social media platforms like TikTok, Facebook, Instagram, and X (formerly known as Twitter). The federal government under the Biden Administration has sought to curtail this wave of misinformation, characterizing it as a threat to public health. However, many have accused it of unconstitutional acts of censorship in violation of the First Amendment.

The government cannot directly interfere with the content posted on social media platforms; this right is held by the private companies that own the platforms. Instead, the government’s approach has been to communicate with social media companies, encouraging them to address misinformation that is promulgated on their sites. Per the Biden Administration: “The President’s view is that the major platforms have a responsibility related to the health and safety of all Americans to stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections.”^[1]

Lower Courts have Ruled that the Government May Not Communicate with Social Media Companies for Purposes of Curtailing Online Misinformation

The case of Murthy v. Missouri may result in further clarity from the Supreme Court regarding the powers of the federal government to combat misinformation on social media platforms. The case began in the United States District Court for the Western District of Louisiana when two states–Missouri and Louisiana–along with several private parties filed suit against numerous federal government entities, including the White House and agencies such as the Federal Bureau of Investigation, the Centers for Disease Control & Prevention, and the Cybersecurity & Infrastructure Security Agency.^[2] These entities have repeatedly communicated with social media companies, allegedly encouraging them to remove or censor the plaintiffs’ online content due to misinformation about the COVID-19 pandemic (including content discussing “the COVID-19 lab-leak theory, pandemic lockdowns, vaccine side-effects, election fraud, and the Hunter Biden laptop story.”)^[3] The plaintiffs allege that these government entities “‘coerced, threatened, and pressured [the] social-media platforms to censor [them]’ through private communications and legal threats” in violation of the plaintiffs’ First Amendment rights.^[4]

The District Court agreed with the plaintiffs, issuing a preliminary injunction on July 4, 2023 to greatly restrict the entities’ ability to contact social media companies (especially with regard to misinformation).^[5] This approach was predicated on the idea that government communications with social media companies about misinformation on their platforms is essentially coercive, forcing the companies to censor speech at the government’s demand. The injunction was appealed to the Fifth Circuit, which narrowed the injunction’s scope to just the White House, the Surgeon General’s office, and the FBI.^[6]

Following the Fifth Circuit’s ruling on the preliminary injunction, the government parties to the Murthy case applied for a stay of the injunction with the United States Supreme Court.^[7] The government further requested that the Court grant certiorari with regard to the questions presented by the injunction. The government attacked the injunction on three grounds. The first is that the plaintiffs did not have standing to sue under Article III because they did not show that the censoring effect on their posts was “fairly traceable” to the government or “redressable by injunctive relief.”^[8]

The second argument is that the conduct at issue does not constitute a First Amendment free speech violation.^[9] This claim is based on the state action doctrine, which outlines the circumstances in which the decisions of private entities are considered to be “state action.” If a private social media company’s decisions to moderate content are sufficiently “coerced” by the government, the law treats those decisions as if they were made by the government directly.^[10] In that situation, the First Amendment would apply.^[11] The Supreme Court has advocated for a strict evaluation of what kind of conduct might be considered “coercive” under this doctrine in an effort to avoid infringing upon the rights of private companies to modulate speech on their platforms.^[12] The government’s Application for Stay argues that the Fifth Circuit’s decision is an overly broad application of the doctrine in light of the government’s conduct.^[13]

Third, the government maintains that the preliminary injunction is overly broad because it “covers the government’s communications with all social-media platforms (not just those used by respondents) regarding all posts by any person (not just respondents) on all topics.”^[14]

The Supreme Court Granted the Requested Stay and Granted Certiorari Regarding Three Key Questions

The Supreme Court granted the government’s request for a stay on the preliminary injunction. The Court simultaneously granted certiorari with respect to the questions posed in the government’s Application for Stay: “(1) Whether respondents have Article III standing; (2) Whether the government’s challenged conduct transformed private social-media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights; and (3) Whether the terms and breadth of the preliminary injunction are proper.”^[15]

The Court gave no explanation for its grant of the request for stay or for its grant of certiorari. However, Justice Alito, joined by Justice Thomas and Justice Gorsuch, issued a dissent from the grant of application for stay, arguing that the government has not shown a likelihood that denial of a stay will result in irreparable harm.^[16] He contends that the government’s argument about irreparable harm comes from hypotheticals rather than from actual “concrete” proof that harm is imminent.^[17] The dissent further displays a disapproving attitude of the government’s actions toward social media misinformation: “At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.”^[18]

Justice Alito noted in his dissent that the completion of the Court’s review of the case may not come until spring of next year.^[19] The stay on the preliminary injunction will hold until that time.

Notes

[1] Press Briefing by Press Secretary Jen Psaki and Secretary of Agriculture Tom Vilsack, The White House (May 5, 2021), https://www.whitehouse.gov/briefing-room/press-briefings/2021/05/05/press-briefing-by-press-secretary-jen-psaki-and-secretary-of-agriculture-tom-vilsack-may-5-2021/.

[2] State v. Biden, 83 F.4th 350, 359 (5th Cir. 2023).

[3] Id. at 359.

[4] Id. at 359-60.

[5] Id. at 360.

[6] Id.

[7] Application for Stay, Murthy v. Missouri, No. 23A243 (23-411) (2023).

[8] Id. at 2.

[9] Id. at 3.

[10] Id. at 10.

[11] Id.

[12] Id. at 4 (citing Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1933 (2019)).

[13] Application for Stay, Murthy v. Missouri, No. 23A243 (23-411) (2023).

[14] Id. at 5.

[15] Press Briefing by Press Secretary Jen Psaki and Secretary of Agriculture Tom Vilsack, The White House (May 5, 2021), https://www.whitehouse.gov/briefing-room/press-briefings/2021/05/05/press-briefing-by-press-secretary-jen-psaki-and-secretary-of-agriculture-tom-vilsack-may-5-2021/.

[16] On Application for Stay at 3, Murthy v. Missouri, No. 23A243 (23-411) (October 20, 2023) (Alito, J. dissenting) (citing Hollingsworth v. Perry, 558 U.S. 183, 190 (2010)).

[17] Id. at 3-4.

[18] Id. at 5.

[19] Id. at 2.

Will Moody v. NetChoice, LLC End Social Media?

October 27, 2023
Constitutional Law, COVID-19, Elections, First Amendment, Internet, Social Media

Aidan Vogelson, MJLST Staffer

At first, the concept that social media’s days may be numbered seems outlandish. Billions of people utilize social media every day and, historically, social media companies and other internet services have enjoyed virtually unfettered editorial control over how they manage their services. This freedom stems from 47 U.S.C. § 230.^[1] § 230 withholds liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected…”^[2] In other words, if someone makes an obscene post on Facebook and Facebook removes the post, Facebook cannot be held liable for any violation of protected speech. § 230 has long allowed social media companies to self-regulate by removing posts that violate their terms of service, but on September 29, the Supreme Court granted a writ of certiorari in Moody v. NetChoice, LLC, a case that may fundamentally change how social media companies operate by allowing the government at the state or federal level to regulate around their § 230 protections.

At issue in Moody is whether the methods social media companies use to moderate their content are permissible under the First Amendment and whether social media companies may be classified as common carriers.^[3] Common carriers are services which hold themselves open to the public and transport people or goods.^[4] While the term “common carrier” once referred only to public transportation services like railroads and airlines, the definition now encompasses communications services such as radio and telephone companies.^[5] Common carriers are subjected to greater regulations, including anti-discrimination regulations, due to their market domination of a necessary public service.^[6] For example, given our reliance on airlines and telephone companies in performing necessary services, common carrier regulations ensure that an airline cannot decline to sell tickets to passengers because of their religious beliefs and a cellular network cannot bar service to customers because it disapproves of the content of their phone conversations. If social media companies are held to be common carriers, the federal government and the state governments could impose regulations on what content those companies restrict.

Moody stems from state efforts to do just that. The Florida legislature passed State Bill 7072 to curtail what it saw as social media censorship of conservative voices.^[7] The Florida law allows for significant fines against social media companies that demonstrate “unfair censorship” or “deplatform” political candidates, like X (formerly Twitter) did when it removed former President Trump from its platform for falsely claiming that the 2020 election was stolen.^[8] Florida is not the only state to pursue a common carrier designation for social media. Texas passed a similar law in 2021 (which is currently enjoined by NetChoice, LLC v. Paxton and will be addressed alongside Moody) and the attorney general of Ohio has sued Google, seeking for the court to declare that Google is a common carrier to prevent the company from prioritizing its own products in search results.^[9] Ohio v. Google LLC is ongoing, and while the judge partially granted Google’s motion to dismiss, he found that Ohio’s claim that Google is a common carrier is cognizable.^[10] Given the increasing propensity with which states are attempting to regulate social media, the Supreme Court’s ruling is necessary to settle this vital issue.

Supporters of classifying social media companies as common carriers argue that social media is simply the most recent advancement in communication and should accordingly be designated a common carrier, just as telephone operators and cellular networks are. They explain that designating social media companies as common carriers is actually consistent with the broad protections of § 230, as regulating speech on a social media site regulates the speech of users, not the speech of the company.^[11]

However, they ignore that social media companies rely on First Amendment and § 230 protections when they curate the content on their sites. Without the ability to promote or suppress posts and users, these companies would not be able to provide the personalized content that attracts users, and social media would likely become an even greater hotbed of misinformation and hate speech than it already is. The purpose of § 230 is to encourage the development of a thriving online community, which is why Congress chose to shield internet services from liability for content. Treating social media companies as common carriers would stifle that aim.

It is unclear how the Court will rule. In his concurrence in Biden v. Knight First Amend. Inst., Justice Thomas indicated he may be willing to consider social media companies as common carriers.^[12] The other justices have yet to write or comment on this issue, but whatever their decision may be, the ramifications of this case will be significant. The conservative politicians behind the Florida and Texas laws have specifically decried what they argue is partisan censorship of conservative views about the Covid-19 pandemic and the 2020 election, yet these very complaints demonstrate the need for social media companies to exercise editorial control over their content. Covid-19 misinformation unquestionably led to unnecessary deaths from the Covid-19 pandemic.^[13] Misinformation about the 2020 election led to a violent attempted overthrow of our government. These threats of violence and dangerous misinformation are the harms that Congress created § 230 to avoid. Without the ability for social media companies to curate content, social media will assuredly contain more racism, misinformation, and calls for violence. Few would argue given the omnipresence of social media in our modern world, our reliance on it for communication, and the misinformation it spreads that social media does not need some form of regulation, but if the Court allows the Florida and Texas laws implicated in Moody and NetChoice to stand, they will be paving the way for a patchwork quilt of laws in every state which may render social media unworkable

Notes

[1] See 47 U.S.C. § 230.

[2] 47 U.S.C. §230(c)(2)(A).

[3] Moody v. Netchoice, LLC, SCOTUSblog, https://www.scotusblog.com/case-files/cases/moody-v-netchoice-llc/.

[4] Alison Frankel, Are Internet Companies ‘Common Carriers’ of Content? Courts Diverge on Key Question, REUTERS, (May 31, 2022, 5:52 PM), https://www.reuters.com/legal/transactional/are-internet-companies-common-carriers-content-courts-diverge-key-question-2022-05-31/.

[5] Id.

[6] Id.

[7] David Savage, Supreme Court Will Decide if Texas and Florida Can Regulate Social Media to Protect ‘Conservative Speech’, LA TIMES (Sept. 29, 2023, 8:33 AM), https://www.msn.com/en-us/news/us/supreme-court-will-decide-if-texas-and-florida-can-regulate-social-media-to-protect-conservative-speech/ar-AA1hrE2s.

[8] Id.

[9] AG Yost Files Landmark Lawsuit to Declare Google a Public Utility, OHIO ATTORNEY GENERAL’S OFFICE (June 8, 2021), https://www.ohioattorneygeneral.gov/Media/News-Releases/June-2021/AG-Yost-Files-Landmark-Lawsuit-to-Declare-Google-a.

[10] Ohio v. Google LLC, No. 21-CV-H-06-0274 (Ohio Misc. 2022), https://fingfx.thomsonreuters.com/gfx/legaldocs/gdpzyeakzvw/frankel-socialmediacommoncarrier–ohioruling.pdf.

[11] John Villasenor, Social Media Companies and Common Carrier Status: A Primer, BROOKINGS INST. (Oct. 27, 2022), https://www.brookings.edu/articles/social-media-companies-and-common-carrier-status-a-primer/.

[12] Biden v. Knight First Amend. Inst., 141 S. Ct. 1220 (2021), https://www.law.cornell.edu/supremecourt/text/20-197.

[13] Alistair Coleman, ’Hundreds Dead’ Because of Covid-19 Misinformation, BBC (Aug. 12, 2020), https://www.bbc.com/news/world-53755067.

Victory in the Big Sky Country: The Ramifications of Held v. Montana

October 1, 2023
Climate Change, Constitutional Law, Environment, Environmental Law

Joshua Fuller, MJLST Staffer

Introduction

The battle about climate change rages on. But one group of young students has dealt a significant blow to the state of Montana, claiming that under the Montana Constitution they have a right to a clean environment. This victory, while small in its effect, has reverberated across the nation. This case, Held v. Montana, is the first of its kind. Never before has there been a ruling that a clean environment was a right of a state’s citizens. And while the case will certainly be taken up by the Montana Supreme Court, the door has been opened for climate change activists to consider potential litigation across the country.

Background About the Case:

The Montana Constitution includes the following provision: “All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways.”^[1] The phrase “right to a clean and healthful environment” is the basis on which the sixteen Montana youth (“the plaintiffs”) filed suit. They sued the state of Montana arguing that the passage of the State Energy Policy Act (the “Act”), which prohibited the state from considering the impacts of greenhouse gas emission when performing an environmental review, violates the clean environment provision in the Montana Constitution.^[2] Judge Kathy Seeley, the District Court Judge for the 1st District, agreed with the plaintiffs. In her order, Judge Seeley found that the Act was unconstitutional under the ruling of Park Cnty: “Pursuant to the Court’s decision in Park Cnty., Mont. Code Ann. § 75-1-201(6)(a)(ii) is facially unconstitutional because it eliminates MEPA litigants’ remedies that prevent irreversible degradation of the environment, and it fails to further a compelling state interest.”^[3] Shortly after the decision was rendered, a spokesperson for Montana Attorney General, Austen Knudsen, stated, “This ruling is absurd, but not surprising from a judge who let the plaintiffs’ attorneys put on a weeklong taxpayer-funded publicity stunt that was supposed to be a trial”^[4] and stated that the Attorney General would be seeking an appeal with the Montana Supreme Court.

While the future of the case is less than certain, there is light at the end of the tunnel for the plaintiffs. The Montana Supreme Court has often taken the position that the text of the Montana Constitution governs. In their recent decision in Board of Regents of Higher Education v. State, the Court struck down House Bill 102, a firearms bill that would have allowed carrying on Montana public college campuses. A unanimous Court found that under the Montana Constitution,^[5] the Board of Regents had controlling power when deciding gun regulations on college campuses.^[6] Given the heavy firearms culture that exists in Montana, this decision was of great surprise to many. But the case gave important context to the priorities of the Court. Given the decision to faithfully follow the Montana Constitution, this does give a glimmer of where the Court may lean when the decision goes up for appeal, if the Court takes it up. Additionally, Montana has traditionally been a bulwark of conservation of the land. Two well known National Parks, Glacier and Yellowstone, exist within the boundaries of the state. Protecting the environment, despite the misgivings of the current state administration, has been an important part of the culture. In Montana, Fish, Wildlife & Parks offers conservation easements with landowners, where the landowners are paid by the department to conserve certain parts of their land and limit the use.^[7] With several parts of the government for protecting the environment, and a long standing tradition of conservation, there is reason to believe that the Montana Supreme Court would rule in favor of the plaintiffs.

Implications of the Case

Despite the spokeperson’s statements, the reaction to the decision nationally has been overwhelmingly supportive. Michael Burger, executive director of the Sabin Center for Climate Change Litigation at Columbia University, stated, “Emissions contribute to climate change, climate harms are real, people can experience climate harms individually, and every ton of greenhouse gas emissions matters. These are important factual findings, and other courts in the U.S. and around the world will look to this decision.”^[8] Similar litigation has already begun to occur. In Oregon, a county sued major oil companies for exacerbating the current climate change crisis.^[9] But Held is the first time that a state has been held accountable for actions that the state attempted to create to get around climate change measures. As of the writing of this article, only six states have provisions in their constitutions that citizens have the right to a clean environment: Hawai’i, Illinois, Massachusetts, Montana, New York, and Pennsylvania.^[10] While this may seem insignificant, the holding in Held is a first step for citizens to fight climate change. The court’s decision gives groundwork to other prospective plaintiffs on how to formulate litigation surrounding issues that deal with climate change.

A New Type of Law?

Perhaps the most important impact of Held is the potential for a new body of law. Environmental law has existed for decades, harkening back to the era of Theodore Roosevelt and his decision to create the National Parks. However, its intersection with constitutional law has only been more recent, and it is far less defined. Despite agencies such as the Environmental Protection Agency and the National Parks Service, litigation surrounding climate change has only emerged in the past couple of decades. This vacuum of law is ripe for the filling. This new law springs forward from the enjoinment of environmental law and constitutional law. This new “Green Constitutional Law” surfaces from the idea that state constitutions have provisions in place that protect the environment and establish the right to a clean climate.^[11] Held provides an outline for what green constitutional law may look like. The litigation emanating in other states, and the call for more action to curb global warming, speak to the necessity of such a new form of law. At its core, green constitutional law addresses the idea that all people have the right to “life, liberty, and the pursuit of happiness.”^[12] Because the rise of climate change threatens the existence of countless species, including humans, it can be reasonably asked whether the United States Constitution, so quoted above, gives the right to an environment in which its citizens can survive and flourish. A new form of law is arising to help answer this question, to which Held is the foot in the door to begin this change. The battle may be won, but the war has just begun.

Notes

[1] Mont. Const. Art. II, § 4.

[2] Id.

[3] Held v. Montana, No. CDV-2020-307 (Mont. Dist. Ct., 2023).

[4] David Gelles and Mike Baker, Judge Rules in Favor of Montana Youths in a Landmark Climate Case, The New York Times (Aug. 14, 2023) https://www.nytimes.com/2023/08/14/us/montana-youth-climate-ruling.html.

[5] Mont. Const. art. X, § 9(2)(a).

[6] Bd. of Regents of Higher Educ. of Mont. v. State, 1, 12 (2022 MT 128).

[7] FWP, Habitat Montana, (Last visited Sept. 29, 2023) https://fwp.mt.gov/conservation/landowner-programs/habitat-montana.

[8] Id.

[9] Clark Mindock, US Climate Change Lawsuit Seeks $50 Billion, Citing 2021 Heat Wave, Reuters (June 22, 2023 8:08 PM CDT) https://www.reuters.com/world/us/us-climate-change-lawsuit-seeks-50-billion-citing-2021-heat-wave-2023-06-22/.

[10] John C. Dernbach, The Environmental Rights Provisions of U.S. State Constitutions: A Comparative Analysis, 1 Widener University – Commonwealth Law School (2023).

[11] Kate Burgess, Green Amendments in 2023: States Continue Efforts to Make a Healthy Environment a Legal Right, National Caucus of Environmental Legislators, (Mar. 27, 2023) https://www.ncelenviro.org/articles/green-amendments-in-2023-states-continue-efforts-to-make-a-healthy-environment-a-legal-right/.

[12] The Declaration of Independence para.2 (U.S. 1776).

Are Social Media Empires Liable for “Terror” Organizations?

February 16, 2023
Constitutional Law, First Amendment, Internet, Social Media, Social Welfare

Ray Mestad, MJLST Staffer

The practicality, ease of use, and sheer addictiveness of social media has led to its massive explansion around the world. Approximately 65% of the world uses the internet, and of that group, only 5% does not use social media.^[1] So 60% of the world is on social media, around 4.76 billion people.^[2] For most, social media is one of the simplest ways to stay connected and communicate with friends, family, and other people in their circle. But along with the growing use of social media, questions have been raised regarding the potential liability social media corporations may have for the content that is posted on their platforms. Recently, lawsuits have been filed against companies like Google, Twitter, and Facebook for allegedly allowing groups accused of terrorism to spread their message or plan on their platforms.^[3] The question we are left with is to what extent are social media companies responsible for posts on their sites that lead to violence?

The family of Nohemi Gonzales, an American student killed in Paris during a 2015 Islamic State attack, is suing Google for platforming the Islamic State by allowing them to post videos on Youtube, and then recommending them to people with the Google algorithm.^[4] And the family of Nawras Alassaf, a Jordanian citizen killed in a 2017 Istanbul Islamic State attack, is suing Twitter, Google, and Facebook, for not doing more to prevent the organization from using their platform as a communications and messaging tool.^[5] Gonzales v. Google and Twitter v. Taamneh will both be presenting their oral arguments to the Supreme Court this month, February 2023.^[6]

The legal issues in these cases are rooted in Section 230 of the Communications Decency Act, part of the Telecommunications Act of 1996.^[7] 47 U.S.C. 230 intends to protect freedom of expression by protecting intermediaries that publish information posted by users.^[8] Section 230(c)(1) states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”^[9] This protects web platforms from liability for the content that users post.

Further, Section 230(c)(2) states that “No provider or user of an interactive computer service shall be held liable on account of…any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected…”^[10]This is known as the “Good Samaritan” provision. Like 230(c)(1), Section 230(c)(2) gives internet providers liability protection, allowing them to moderate content in certain circumstances and then providing a safeguard from the free speech claims that would be made against them.^[11]

The question is whether or not defendant social media platforms should be shielded from liability for platforming content that has allegedly led to or facilitated violent attacks. In Gonzales, the Justice department stated that although the company is protected against claims for hosting ISIS videos, a claim may be filed against Google for allowing Youtube to provide targeted recommendations of the videos.^[12] And in Taamneh, the 9th Circuit agreed with the plaintiffs that there was room for the claim to go forward under the Anti-Terrorism Act because Twitter had generalized knowledge of the Islamic State’s use of their services.^[13]

Section 230 has drawn an eclectic mix of critics and supporters. For example, although many conservatives and free speech advocates support the protections of Section 230, there have also been conservatives that oppose the code due to perceived restriction of conservative viewpoints on social media platforms. For example, prominent Republican Josh Hawley from Missouri has come out against the code, stating that the tech platforms ought to be treated as distributors and lose Section 230 protections.^[14] In fact, Hawley introduced a piece of legislation opposing Section 230 called the Federal Big Tech Tort Act to impose liability on tech platforms.^[15] And on the left, Section 230 is supported by those who believe the voices of the marginalized are protected by 230 and would otherwise be at the whim of tech companies, but opposed by people who fear that the code enables political violence and hate speech.^[16]

The Supreme Court has now granted certiorari in both Gonzales and Taamneh. In Gonzales, the plaintiffs are arguing that Section 230 should not protect the actions of Google because the events occurred outside the US, it is preempted by the Justice Against Sponsors of Terrorism Act (JASTA), and the algorithmic recommendations transform Google / Youtube from an interactive computer service to an information content provider.^[17] Google is arguing that they should be protected by 230, particularly 230(c)(1).^[18] The 9th Circuit stated that although 230 did apply abroad, that JASTA shouldn’t supersede 230. Instead, 230 and JASTA should run parallel to each other. The 9th Circuit further stated that the claims based on revenue sharing (rather than ad targeting) should be dismissed. They did not think Google was contributing to terrorism, because they were motivated by financial enrichment rather than ideology, and affirmed the dismissal, partially because there was not clear enough information of how much support Google had provided to ISIS.^[19] Future decisions regarding this case will implicate things like whether algorithmic recommendations should apply to 230.^[20]

In Taamneh, the defendants argued that there was no proximate cause, as well as arguing about the inapplicability of Section 230.^[21] Unlike in Gonzales, Taamneh had adequately stated a claim for aiding and abetting because the social media companies had more explicit knowledge of how their platforms were being used by these groups. The Taamneh dismissal was reversed. The Supreme Court review of this case will have implications on what it means to support or have a relationship with a group via a social media platform. In both of these cases, fears regarding the scope of 230 were expressed, which could reflect poorly on its applicability going forward.^[24]

Gonzales and Taamneh will hit the Supreme Court soon. If 230 is restricted, it would enable greater free speech but risks exposing more people to harms like hate speech or violence. However, if 230 is preserved as is, it could restrict the accessibility and openness that has made the internet what it is today. Whichever decision is made, there will be massive implications for what the internet looks like in the future.

Notes

[1] https://www.smartinsights.com/social-media-marketing/social-media-strategy/new-global-social-media-research/#:~:text=The%20number%20of%20social%20media,growth%20of%20%2B137%20million%20users.

[2] Id.

[3] https://apnews.com/article/islamic-state-group-us-supreme-court-technology-france-social-media-6bee9b5adf33dd15ee64b0d4d4e5ec78

[4] Id.

[5] Id.

[6] https://www.washingtonpost.com/politics/2023/01/03/2023-is-poised-be-landmark-year-tech-legal-bouts/

[7] https://www.justice.gov/archives/ag/department-justice-s-review-section-230-communications-decency-act-1996

[8] https://www.eff.org/issues/cda230

[9] https://casetext.com/statute/united-states-code/title-47-telecommunications/chapter-5-wire-or-radio-communication/subchapter-ii-common-carriers/part-i-common-carrier-regulation/section-230-protection-for-private-blocking-and-screening-of-offensive-material

[10] https://bipartisanpolicy.org/blog/gonzalez-v-google/

[11] https://bipartisanpolicy.org/blog/gonzalez-v-google/

[12] https://www.washingtonpost.com/politics/2022/12/09/tech-critics-urge-supreme-court-narrow-section-230/

[13] https://knightcolumbia.org/blog/twitter-v-taamneh-in-the-supreme-court-whats-at-stake

[14] Supa Washington Post

[15] https://www.hawley.senate.gov/hawley-files-gonzalez-v-google-amicus-brief-supreme-court-challenging-big-techs-section-230

[16] Supa Washington Post

[17] https://www.lawfareblog.com/supreme-court-grants-certiorari-gonzalez-v-google-and-twitter-v-taamneh-overview

[18] Id.

[19] Id.

[20]

[21] Id.

[22] Id.

[23] Id.

[24]Id.

Freedom to Moderate? Circuits Split Over First Amendment Interpretation

October 2, 2022
Administrative Law, Constitutional Law, Cyber Security, Data, First Amendment, Internet, Regulatory, Social Media

Annelise Couderc, MJLST Staffer

Recently, the Florida and Texas Legislatures passed substantively similar laws which restrict social media platforms’ ability to moderate posts expressing “viewpoints,” and require platforms to provide explanations for why they chose to censor certain content. These laws seemingly stem from the perception of conservative leaning users that their views are disproportionately censored, despite evidence showing otherwise. The laws are in direct conflict with the current prevalent understanding of social media’s access to First Amendment protections, which include the right to moderate content, an expression of free speech.

While the 11th Circuit declared the Florida law unconstitutional for violating social media platforms’ First Amendment rights in May, only four months later the 5th Circuit reinstated the similar Texas law without explanation, overturning the previous injunction made by the U.S. District Court for the Western District of Texas. On September 16, 2022, the 5th Circuit released its full decision explaining its reinstatement of the censorship statute, immediately raising constitutional alarm bells in the news. Following this circuit split, social media platforms must navigate a complicated legal minefield. The issue is likely to be resolved by the Supreme Court in response to Florida’s petition of the 11th Circuit’s May decision.

Social Media Platforms Are Generally Free to Moderate Content

The major social media platforms all have policies which ban certain content, or at least require a sensitivity warning to be posted before viewing certain content. Twitter restricts hate speech and imagery, gratuitous violence, sexual violence, and requires sensitive content warnings on adult content. Facebook sets Community Standards and YouTube (a Google subsidiary) sets Community Guidelines that restrict similar content.[1] Social media corporations’ access to free speech protections were well understood under settled Supreme Court precedent, and were further confirmed in the controversial 2010 Supreme Court decision Citizens United establishing the rights of corporations to make political donations as a demonstration of free speech. In sum, Courts have generally allowed social media platforms to moderate and censor sensitive content as they see fit, and platforms have embraced this through their establishment and enforcement of internal guidelines.

Circuits Split Over First Amendment Concerns

Courts have generally rejected arguments challenging social media platforms’ ability to set and uphold their own content guidelines, upholding social media platforms’ free speech protections under the First Amendment. The 5th Circuit’s rejection of this widely accepted standard has created a circuit split which will lead to further litigation and leave social media platforms uncertain about the validity of their policies and the extent of their constitutional rights.

The 11th Circuit’s opinion in May of this year was consistent with the general understanding of social media’s place as private businesses which hold First Amendment rights. It rejected Florida’s argument that social media platforms are common carriers and stated that editorial discretion by the platforms is a protected First Amendment right.[2] The Court recognized the platforms’ freedom to abide by their own community guidelines and choose which content to prioritize as expressions of editorial judgment protected by the First Amendment.[3] This opinion was attacked directly by the 5th Circuit’s later decision, challenging the 11th Circuit’s adherence to existing First Amendment jurisprudence.

In its September 16th opinion, the 5th Circuit refused to recognize censorship as speech, rejecting the plaintiff’s argument that content moderation was a form of editorial discretion (a recognized form of protected speech for newspapers).[4] The court also invoked common carrier doctrine—which empowers states to enforce nondiscriminatory practices for services that the public uses en masse (a classification that the 11th Circuit explicitly rejected)—, embracing it in the context of social media platforms.[5] Therefore, the court held with “no doubts” that section 7 of the Texas law—which prevents platforms from censoring “viewpoints” (with exceptions for blatantly illegal speech provoking violence, etc.) of users—was constitutional.[6] Section 2 of the contested statute, requiring social media platforms to justify and announce their moderation choices, was similarly upheld as being a sufficiently important interest of the government, and not unduly burdensome to the businesses.[7] The law allows individuals to sue for enforcement.

The Supreme Court’s Role and Further Implications

Florida, on September 21st, 2022, petitioned for a writ of certiorari asking the Supreme Court to review the May 2022 decision. The petition included reference to the 5th Circuit opinion, calling for the Supreme Court to weigh in on the Circuit split. Considering recent Supreme Court decisions cutting down Fourth and Fifth amendment rights, it is anticipated that First Amendment rights of online platforms may be next.

Although the Florida and Texas laws involved in these Circuit Court decisions were Republican proposed bills, a Supreme Court decision would impact blue states as well. California, for example, has proposed a bill requiring social media platforms to make public their policies on hate speech and disinformation. A decision in either direction would impact both Republican and Democratic legislatures’ ability to regulate social media platforms in any way.

Notes

[1] Studies have found that platforms like YouTube may actually push hateful content through their algorithms despite what their official policies may state.

[2] NetChoice, LLC v. AG, Fla., 34 F.4th 1196, 1222 (11th Cir. 2022).

[3] Id. at 1204.

[4] Netchoice, L.L.C. v. Paxton, No. 21-51178, 2022 U.S. App. LEXIS 26062, at *28 (5th Cir. Sep. 16, 2022).

[5] Id. at 59.

[6] Id. at 52.

[7] Id. at 102.

Would Autonomous Vehicles (AVs) Interfere With Our Fourth Amendment Rights?

May 10, 2022
Autonomous Vehicles, Constitutional Law, Data, Data Privacy, Fourth Amendment

Thao Nguyen, MJLST Staffer

Traffic accidents are a major issue in the U.S. and around the world. Although car safety features are continuously enhanced and improved, traffic crashes continue to be the leading cause of non-natural death for U.S. citizens. Most of the time, the primary causes are human errors rather than instrumental failures. Therefore, autonomous vehicles (“AVs”), which promise to be the automobiles that operate themselves without the human driver, are an exciting up and coming technology, studied and developed in both academia and industry^[1].

To drive themselves, AVs must be able to perform two key tasks: sensing the surrounding environment and “driving”—essentially replacing the eyes and hands of the human driver.^[2] The standard AV design today includes a sensing system that collects information from the outside world, assisting the “driving” function. The sensing system is composed of a variety of sensors,^[3] most commonly a Light Detection and Ranging (LiDAR) and cameras.^[4] A LiDAR is a device that emits laser pulses and uses sound navigation and ranging (“SONAR”) principles to get a depth estimation of the surroundings: the emitted laser pulses travel forward, hit an object, then bounce back to the receivers; the time taken for the pulses to travel back is measured, and the distance is computed. With this information about distance and depth, a 3D point cloud map is generated about the surrounding environment. In addition to precise 3D coordinates, most LiDAR systems also record “intensity.” “Intensity” is the measure of the return strength of the laser pulse, which is based, in part, on the reflectivity of the surface struck by the laser pulse. LiDAR “intensity” data thus reveal helpful information about the surface characteristics of their surroundings. The two sensors, the camera and the LiDAR, complement each other: the former conveys rich appearance data with more details on the objects, whereas the latter is able to capture 3D measurements^[5]. Fusing the information acquired by each allows the sensing system to gain a reliable environmental perception.^[6]

LiDAR sensing technology is usually combined with artificial intelligence, as its goal is to imitate and eventually replace human perception in driving. Today, the majority of artificial intelligences use “machine learning,” a method that gives computers the ability to learn without explicitly being programmed. With machine learning, computers train itself to do new tasks in a similar manner as do humans: by exploring data, identifying patterns, and improving upon past experiences. Applied machine learning is data-driven: the greater the breadth and depth of the data supplied to the computer, the greater the variety and complexity of the tasks that the computer can program itself to do. Since “driving” is a combination of multiple high-complexity tasks, such as object detection, path planning, localization, lane detection, etc., an AV that drives itself requires voluminous data in order to operate properly and effectively.

“Big data” is already considered a valuable commodity in the modern world. In the case of AVs, however, this data will be of public streets and road users, and the large-scale collection of this data is empowered further by various technologies to detect and identify, track and trace, mine and profile data. When profiles about a person’s traffic movements and behaviors exist in a database somewhere, there is a great temptation for the information to be used for other purposes than the purpose for which they were originally collected, as has been the case with a lot of other “big data” today. Law enforcement officers who get their hands on these AVs data can track and monitor people’s whereabouts, pinpointing individuals whose trajectories touch on suspicious locations at a high frequency. The trajectories can be matched with the individual identified via use of car models and license plates. The police may then identify crime suspects based on being able to see the trajectories of everyone in the same town, rather than taking the trouble to identify and physically track each suspect. Can this use of data by law enforcement be sufficiently justified?

As we know, use of “helpful” police tools may be restricted by the Fourth Amendment, and for good reasons. Although surveillance helps police officers detect criminals,^[7] extraneous surveillance has its social costs: restricted privacy and a sense of being “watched” by the government inhibits citizens’ productivity, creativity, spontaneity, and causes other psychological effects.^[8] Case law has given us guidance to interpret and apply the Fourth Amendment standards of “trespass” or “unreasonable searches and seizures” by the police. Three principal cases, Olmstead v. United States, 277 U.S. 438 (1928), Goldman v. United States, 316 U.S. 129 (1942), and United States v. Jones, 565 U.S. 400 (2012), a modern case, limit Fourth Amendment protection to protecting against physical intrusion into private homes and properties. Such protection would not be helpful in the case of LiDAR, which operates on public street as a remote sensing technology. Nonetheless, despite the Jones case, the more broad “reasonable expectation of privacy” test established by Katz v. United States, 389 U.S. 347 (1967) is more widely accepted. Instead of tracing physical boundaries of “persons, houses, papers, and effects,” the Katz test focuses on whether there is an expectation of privacy that is socially recognized as “reasonable.” The Fourth Amendment “protects people, not places,” wrote the Katz court.^[9]

United States v. Knotts, 460 U.S. 276 (1983) was a public street surveillance case that invoked the Katz test. In Knotts, the police installed a beeper on to the defendant’s vehicle to track it. The Court found that such tracking on public streets was not prohibited by the Fourth Amendment: “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”^[10] The Knotts Court thus applied the Katz test and considered the question of whether there was a “reasonable expectation of privacy,” meaning that such expectation was recognized as “reasonable” by society.^[11] The Court’s answer is in the negative: unlike a person in his dwelling place, a person who is traveling on public streets “voluntarily conveyed to anyone who wanted to look at the fact that he was traveling over particular roads in a particular direction.”^[12]

United States v. Maynard, 615 F.3d 544 (2010), another public street surveillance case taking place in the twenty-first century, reconsidered the Knotts holding regarding “reasonable expectation of privacy” on public streets. The Maynard defendant argued that the district court erred in admitting evidence acquired by the police’s warrantless use of a Global Pointing System (GPS) device to track defendant’s movements continuously for a month.^[13] The Government invoked United States v. Knotts and its holding that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”^[14] The DC Circuit Court of Appeals, however, distinguished Knotts, pointing out that the Government in Knotts used a beeper that tracked a single journey, whereas the Government’s GPS monitoring in Maynard was sustained 24 hours a day continuously for one month.^[15]The use of the GPS device over the course of one month did more than simply tracking defendant’s “movements from one place to another.” The result in Maynard was the discovery of the “totality and pattern” of defendant’s movement.^[16]The Court is willing to make a distinction between “one path” and “the totality of one’s movement”: since someone’s “totality of movement” is much less exposed to the view of the public and much more revealing of that person’s personal life, it is constitutional for the police to track an individual on “one path,” but not that same individual’s “totality of movement.”

Thus, with time the Supreme Court appears to be recognizing that when it comes to modern surveillance technology, the sheer quantity and the revealing nature of data collected on movements of public street users ought to raise concerns. The straightforward application of these to AV sensing data would be that data concerning a person’s “one path” can be obtained and used, but not the totality of a person’s movement. It is unclear where to draw the line between “one path” and “the totality of movement.” The surveillance in Knotts was intermittent over the course of three days,^[17] whereas the defendant in Maynard was tracked for over one month. The limit would perhaps fall somewhere in between.

Furthermore, this straightforward application is complicated by the fact that the sensors utilized by AVs do not pick up mere locational information. As discussed above, AV sensing system, being composed of multiple sensors, capture both camera images and information about speed, texture, and depth of the object. In other words, AVs do not merely track a vehicle’s location like a beeper or GPS, but they “see” the vehicle through their cameras and LiDAR and radar devices, gaining a wealth of information. This means that even if only data about “one path” of a person movement is extracted, this “one path” data as processed by AV sensing systems is much more in-depth than what a beeper or CSLI can communicate. Adding to this, current developers are proposing to create AVs networks that share data among many vehicles, so that data on “one path” can potentially be combined with other data of the same vehicle’s movement, or multiple views of the same “one path” from different perspectives can be combined. The extensiveness of these data goes far beyond the precedents in Knotts and Maynard. Thus, it is foreseeable that unwarranted subpoenaing AVs sensing data is firmly within the Supreme Court’s definition of a “trespass.”

[1] Tri Nguyen, Fusing LIDAR sensor and RGB camera for object detection in autonomous vehicle with fuzzy logic approach, 2021 International Conference on Information Networking (ICOIN) 788, 788 (2021).

[2] Id. (“An autonomous vehicle or self-driving car is a vehicle having the ability to sense the surrounding environment and capable of operation on its own without any human interference. The key to the perception system holding responsibility to collect the information in the outside world and determine the safety of the vehicle is a variety of sensors mounting on it.”)

[3] Id. “The key to the perception system holding responsibility to collect the information in the outside world and determine the safety of the vehicle is a variety of sensors mounted on it.”

[4] Heng Wang and Xiaodong Zhang, Real-time vehicle detection and tracking using 3D LiDAR, Asian Journal of Control 1, 1 (“Light Detection and Ranging (LiDAR) and cameras [6,8] are two kinds of commonly used sensors for obstacle detection.”)

[5] Id. (“Light Detection and Ranging (LiDAR) and cameras [6,8] are two kinds of commonly used sensors for obstacle detection.”) (“Conversely, LiDARs are able to produce 3D measurements and are not affected by the illumination of the environment [9,10].”).

[6] Nguyen, supra note 1, at 788 (“Due to the complementary of two sensors, it is necessary to gain a more reliable environment perception by fusing the information acquired from these two sensors.”).

[7] Raymond P. Siljander & Darin D. Fredrickson, Fundamentals of Physical Surveillance: A Guide for Uniformed and Plainclothes Personnel, Second Edition (2002) (abstract).

[8] Tamara Dinev et al., Internet Privacy Concerns and Beliefs About Government Surveillance – An Empirical Investigation, 17 Journal of Strategic Information Systems 214, 221 (2008) (“Surveillance has social costs (Rosen, 2000) and inhibiting effects on spontaneity, creativity, productivity, and other psychological effects.”).

[9] Katz v. United States, 389 U.S. 347, 351 (1967).

[10] United States v. Knotts, , 460 U.S. 276, 281 (1983) (“A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”)

[11] Id. at 282.

[12] Id.

[13] United States v. Maynard, 615 F.3d 544, 549 (2010).

[14] Id. at 557.

[15] Id. at 556.

[16] Id. at 558 “[O]nes’s movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements.”).

[17] Knotts at 276.

Save the Children . . . From Algorithms?

March 29, 2022
Constitutional Law, Data, Data Privacy, First Amendment, Internet, Regulatory, Social Media

Sarah Nelson, MJLST Staffer

Last week, a bill advanced out of the Minnesota House Commerce Finance and Policy Committee that would ban social media platforms from utilizing algorithms to suggest content to those under the age of 18. Under the bill, known as HF 3724, social media platforms with more than one million account holders that operate in Minnesota, like Instagram, Facebook, and TikTok, would no longer be able to use their algorithms to recommend user-generated content to minors.

The sponsor of the bill, Representative Kristin Robbins, a Republican from Maple Grove, said that she was motivated to sponsor HF 3724 after reading two articles from the Wall Street Journal. In the first, the Wall Street Journal created dozens of automated accounts on the app TikTok, which it registered as being between the ages of 13 and 15. The outlet then detailed how the TikTok algorithm, used to create a user’s For You feed, would inundate teenage users with sex- and drug-related content if they engaged with that content. Similarly, in the second article, the Wall Street Journal found that TikTok would repeatedly present teenagers with extreme weight loss and pro-eating disorder videos if they continued to interact with that content.

In response to the second article, TikTok said it would alter its For You algorithm “to avoid showing users too much of the same content.” It is also important to note that per TikTok’s terms of service, to use the platform, users must be over 13 and must have parental consent if they are under 18. TikTok also already prohibits “sexually explicit material” and works to remove pro-eating disorder content from the app while providing a link to the National Eating Disorders Association helpline.

As to enforcement, HF 3724 says social media platforms are liable to account holders if the account holder “received user-created content through a social media algorithm while the individual account holder was under the age of 18” and the social media platform “knew or had reason to know that the individual account holder was under the age of 18.” Social media platforms would then be “liable for damages and a civil penalty of $1,000 for each violation.” However, the bill provides an exception for content “that is created by a federal, state, or local government or by a public or private school, college, or university.”

According to an article written on the bill by the legislature, Robbins is hopeful that HF 3724 “could be a model for the rest of the country.”

Opposition from Tech

As TechDirt points out, algorithms are useful; they help separate relevant content from irrelevant content, which optimizes use of the platform and stops users from being overwhelmed. The bill would essentially stop young users from reaping the benefits of smarter technology.

A similar argument was raised by NetChoice, which expressed concerns that HF 3724 “removes the access to beneficial technologies from young people.” According to NetChoice, the definition of “social media” used in the bill is unacceptably broad and would rope in sites that teenagers use “for research and education.” For example, NetChoice cites to teenagers no longer being able to get book recommendations from the algorithm on Goodreads or additional article recommendations on a research topic from an online newspaper.

NetChoice also argues that HF 3724 needlessly involves the state in a matter that should be left to the discretion of parents. NetChoice explains that parents, likely knowing their child best, can decide on an individual basis whether they want their children on a particular social media platform.

Opponents of the bill also emphasize that complying with HF 3724 would prove difficult for social media companies, who would essentially have to have separate platforms with no algorithmic functions for those under 18. Additionally, in order to comply with the bill, social media platforms would have to collect more personal data from users, including age and location. Finally, opponents have also noted that some platforms actually use algorithms to present appropriatecontent to minors. Similarly, TikTok has begun utilizing its algorithms to remove videos that violate platform rules.

What About the First Amendment?

In its letter to the Minnesota House Commerce Committee, NetChoice said that HF 3724 would be found to violate the First Amendment. NetChoice argued that “multiple court cases have held that the distribution of speech, including by algorithms such as those used by search engines, are protected by the First Amendment” and that HF 3724 would be struck down if passed because it “result[s] in the government restraining the distribution of speech by platforms and Minnesotans access to information.”

NetChoice also cited to Ashcroft v. ACLU, a case in which “the Supreme Court struck down a federal law that attempted to prevent the posting of content harmful to teenagers on the web due to [the fact it was so broad it limited adult access] as well as the harm and chilling effect that the associated fines could have on legal protected speech.”

As Ars Technica notes, federal courts blocked laws pertaining to social media in both Texas and Florida last year. Both laws were challenged for violating the First Amendment.

Moving Forward

HF 3724 advanced unanimously out of the House Judiciary Finance and Civil Law Committee on March 22. The committee made some changes to the bill, specifying that the legislation would not impact algorithms associated with email and internet search providers. Additionally, the committee addressed a criticism by the bill’s opponents and exempted algorithms used to filter out age-inappropriate content. There is also a companion bill to HF 3724, SF3922, being considered in the Senate.

It will be interesting to see if legislators are dissuaded from voting for HF 3724 given its uncertain constitutionality and potential impact on those under the age of 18, who will no longer be able to use the optimized and personalized versions of social media platforms. However, so far, to legislators, technology companies have not put their best foot forward, as they have sent lobbyists in their stead to advocate against the bill.

The Heavy Cost of Costless Lies

March 17, 2022
Constitutional Law

Shuang Liu, MJLST Staffer

Does repetition of a lie make it truer? “What a ridiculous question,” you might think. But according to psychological experiments, the answer is yes.

In a series of psychological experiments, scientists provided true and false statements to participants, repeating only some of the statements, and asked the participants to evaluate whether the statements were true or false. The results showed that people typically evaluated repeated statements truer than those that appeared just once. The effect of repetition was summarized by Christian Unkelbach et al. in 2019:

The effect appears with information ranging from trivia (“The thigh bone is the longest bone in the human body”) to consumer opinions (“Billabong shampoo leaves hair shiny with no residue”) to false news items (“Donald Trump sends his own plane to transport 200 stranded marines”). It is present with repetition intervals from minutes to weeks to months.

In addition to the frequency of statements, temporal order also affects people’s trust in statements. For example, if people read the statement “Falstaff was the last opera of Verdi” first and the statement “Othello was the last opera of Verdi” later, they are more likely to believe the latter statement is false. To make things worse, the phenomenon of confirmation bias reveals that when a person has drawn a conclusion on a given matter, either consciously or subconsciously, the person is inclined to disregard information that contradicts the conclusion.

The implication of these experiments can be huge. Consider a scenario where a famous person says “COVID is not real” with literally no explanation. People will then hear it countless times from various sources including the press, and potentially family, friends, and collogues. As a result, some of these people will tend to believe this lie more than later statements that contradict it but are true. When the lie is closely related to public interest, just as the one in this example, its negative effects are serious.

Nevertheless, the law does not defend people against such serious lies at all. The First Amendment protects free speech including false statements, as long as no defamation issue is involved. Generally, there are two reasons for not outlawing lies. Firstly, the First Amendment “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.” Secondly, the “First Amendment freedoms need breathing space to survive.” Penalties for lies will also deter statements that are believed to be true when made, but could be disproven later. However, as will be discussed below, these two reasons are not adequate for allowing lies to be legally costless.

To begin with, the presupposition that truth can be gathered from various contradictory sources does not reflect the reality. Most information people obtain today is secondhand. People can hardly confirm the truthiness of most information directly. Therefore, people have no better option than choosing to believe some of the accessible sources. This choice, as illustrated above, is far from rational. You may think that simple repetition and temporal primacy cannot mislead you. But statistical results show a considerable portion of people can and will be fooled in such ways. Moreover, confirmation bias suggests once a person believes a lie, the person will strengthen the lie in his or her mind by selectively absorbing future information. Accordingly, the presumption that truth can be found from various sources may hold in the scenario of a discovery proceeding in litigation, for example, but never for most people in their daily life.

Moreover, the concern that punishing lies may also deter true statements can be dispelled by a systematic solution. Firstly, whether a speaker is liable for his or her false statement should not turn on whether the statement is false objectively. Rather, the test should be whether the speaker, as a reasonable person, has had sufficient factual bases for the statement before making it. After all, even respectable scientists have made false statements about the nature of the universe, but hardly can anyone say they were lying. Additionally, in order not to disrupt people’s normal life, the requirements of not lying should be imposed only on public officials when they are speaking in their positions. This role-based requirement is consistent with the well-established policy that government officials “are to be treated as men of fortitude, able to thrive in a hardy climate.” It is also aligned with the fact that statements of public officials are more likely to be viewed, heard, reported, and spread, and hence are deserved to be more strictly regulated. Lastly, to be held liable for lying, the false statement should bear some relation to the public interest. Trivial lies that do not hurt the public interest are not worth the legal cost for preventing them.

As can be expected, to outlaw false statements, even only those made by public officials, entails a radical change in the Constitutional law. But the efforts will pay off because people will be less harmed by lies, and the government will receive more credence from people as a result.

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Constitutional Law

Evan Bracewell, MJLST Staffer

Alex Mastorides, MJLST Staffer

Aidan Vogelson, MJLST Staffer

Joshua Fuller, MJLST Staffer

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