States Try to Convince Supreme Court to Keep Laws Regulating Social Media

WASHINGTON -- The Supreme Court seemed skeptical last week of two state laws that could redraw rights of social media companies to decide the content displayed on their platforms.

The tech companies say the Florida and Texas laws that seek to limit which content they can remove from their platforms trample their free speech and editorial judgment.

Attorneys’ arguments focused mostly on a 2021 Florida law that prohibits major social media companies like Facebook and YouTube from barring posts by state political candidates.

Lawmakers in Florida say they are trying to regulate partisan conduct, not free speech guaranteed by the First Amendment. They accuse social media companies of favoring liberal causes and censoring conservative political viewpoints.

Texas approved a similar law in 2021. The Texas law bans social media from removing user posts regardless of the opinions they express.

Both state laws require social media platforms to explain to each user why their posts have been edited or removed. The laws also grant users a right to sue when they believe they have been censored unjustifiably.

The state-level movement to restrict social media started with the Jan. 6, 2021 insurrection at the Capitol that was encouraged by former President Donald Trump.

Facebook, Twitter and YouTube responded by banning Trump’s posts from their platforms. They also enraged conservatives who supported Trump.

Several of the Supreme Court justices said the Florida and Texas laws could restrict private internet content unrelated to influencing the politics of the public. They mentioned examples of Gmail, ride-share company Uber and online marketplace Etsy.

“I have a problem with laws that are so broad that they stifle speech just on their face,” Justice Sonia Sotomayor said.

Lower courts have blocked enforcement of the state laws until the Supreme Court rules on them, which is expected in the spring.

Chief Justice John G. Roberts Jr. said, “I wonder, since we’re talking about the First Amendment, whether our first concern should be with the state regulating what we have called the modern public square.”

The states based their laws partially on the fact internet platforms are common carriers regulated by the Federal Communications Commission. Common carriers refer to entities regulated by the government that offer services open to the general public, like railroads, airlines and telephone companies.

Florida solicitor general Henry Whitaker said the common carrier status of social media makes them different from other media like newspapers, which he agreed have broad First Amendment rights to decide what they publish.

“Our whole point is that social media platforms are not like that,” Whitaker said.

Paul Clement, an attorney for the tech companies, said the state laws encourage irresponsible behavior by forcing social media companies to accept user content “no matter how horrible their conduct.”

The internet platforms typically use their editorial discretion to remove only the most offensive content, such as children urging other children to commit suicide or inciting terrorism, Clement said.

While calling the state laws “unconstitutional,” he added, “Editorial discretion is absolutely necessary to make the websites useful.”

He also cautioned that a ruling against the tech companies could violate section 230 of the Communications Decency Act, which shields tech platforms from lawsuits related to their content moderation.?

“Congress wanted us to operate as publishers,” Clement said.

The Biden administration supports the tech companies.

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.

Television Reporter Cited for Contempt for Defying Subpoena Over Spy Story

A federal judge in Washington, D.C., held veteran journalist Catherine Herridge in contempt of court last week for refusing to disclose her sources for Fox News reports about an FBI investigation of a Chinese American scientist.

The judge fined Herridge $800 per day until she reveals the sources. He gave her 30 days to appeal before the fines begin.

The judge also is setting off a controversy over First Amendment rights with potentially big consequences for freedom of the press.

The dispute arose from a lawsuit filed in U.S. District Court for the District of Columbia by Chinese American scientist Yanping Chen against the FBI. In 1988, she founded the University of Management and Technology in Virginia.

The FBI began investigating her in 2010 over work she did in China. Her immigration forms did not mention what Herridge’s reporting indicated might have been spying.

No charges have been filed against Chen, who denies any allegations of espionage.

Nevertheless, Fox News broadcast and published online news stories saying Chen hid her previous work for the Chinese military and might have been transferring information the University of Management and Technology gained about the U.S. military to China.

Chen sued the FBI, the Justice Department, the Defense Department and the Homeland Security Department in 2018 for what her lawsuit says were violations of the federal Privacy Act.

Her attorneys subpoenaed Herridge for a deposition to determine the source of her information, which included Chen’s family photos, information from her immigration forms and an FBI memo. Another photo shows Chen wearing a Chinese military uniform.

Herridge, who is not a defendant in the lawsuit, declined to be deposed. Her attorney filed a motion to quash the subpoena by claiming a journalist’s First Amendment privilege for confidential sources.

The motion to quash says, “Confidential sources, and the information they provide, are essential for informing the public on matters relating to national security, including information relating to the military, espionage, government surveillance, and homeland security. Fear of exposure will make sources less likely to serve as whistleblowers or otherwise act as confidential sources for such matters.”

Herridge was a senior investigative correspondent for CBS News in Washington D.C. from 2019 until she was laid off last month. She started at CBS after leaving her role as chief intelligence correspondent for the Fox News Channel.

U.S. District Judge Christopher R. Cooper mostly denied the motion to quash, instead saying Chen made good faith efforts to identify the source of the leaked information in other places for five years but failed. Herridge was her only other option to find the leaker, the judge said.

The judge’s 24-page order finding Herridge in contempt said, "The court does not reach this result lightly. It recognizes the paramount importance of a free press in our society and the critical role that confidential sources play in the work of investigative journalists like Herridge."

"Yet the court also has its own role to play in upholding the law and safeguarding judicial authority," Cooper wrote.

The information Chen seeks from Herridge "goes to the heart of her case," the order says.

The case is Yanping Chen v. Federal Bureau of Investigation et al.

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.

D.C. Gun Bump Stock Ban Faces Uphill Struggle in Supreme Court

The federal and District of Columbia ban on gun bump stocks is in jeopardy after Supreme Court arguments last week.

Rather than being a Second Amendment gun ownership issue, the key question pending in the case is the authority of federal agencies to make regulations without congressional approval.

The federal Bureau of Alcohol Tobacco and Firearms banned bump stocks in 2019 following a mass shooting in Las Vegas where a killer used rifles modified with bump stocks to kill 58 people. Bump stocks can convert semi-automatic rifles into the equivalent of machine guns.

Months after the 2017 mass murders, the D.C. Council banned bump stocks in legislation introduced by Mayor Muriel Bowser.

“Bump stocks, which turn already dangerous weapons into lethal machines, have no place in our society,” Bowser said when she introduced the bill in 2018. “President Trump said he may try to ban bump stocks without sending it to Congress. If the president won’t send a bump stock ban to Congress, we will.”

In the case of Cargill v. Garland et al, Michael Cargill, the owner of a gun store in Austin, challenged the Trump-era rules after he was forced to surrender two bump stocks.

"Look, intuitively, I am entirely sympathetic to your argument," Justice Amy Coney Barrett told the federal government’s attorney. "It seems like, yes, that this is functioning like a machine gun would. But I think the question is, why didn't Congress pass that legislation to cover it more clearly?"

Justice Neil Gorsuch said federal law has banned machine guns since the 1930s but there is no specific mention of bump stocks, which raises questions about whether the ATF exceeded its authority.

Justice Elena Kagan said the court should use “common sense” in deciding whether rifles modified with bum stocks fall under the ban on machine guns.

“It functions in precisely the same way,” Kagan said.

Bump stocks replace regular rifle stocks, or the part of a gun that rests against the shoulder. The device helps shooters to harness the recoil for the equivalent of machine gun firing if they continue to press the triggers with each shot.

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.

Database Gives Judicial Clerks’ Ratings of How They Were Treated by Judges

A database run by the Legal Accountability Project is beginning this month as a forum for new lawyers to review judges for whom they clerked.

It was founded by Aliza Shatzman, a Washington, D.C., family law lawyer and former law clerk.

Her website says the mission of the Legal Accountability Project “is to ensure that law clerks have positive clerkship experiences, while extending support and resources to those who do not.”

Shatzman gained notoriety two years ago when she testified before the House Judiciary Committee on an unfortunate clerkship she held with a judge in the District of Columbia. She hoped to become a D.C. prosecutor after the clerkship but her job offer was rescinded after the judge gave her a negative reference.

“They told me that I ‘would not be able to obtain a security clearance’ and therefore that my job offer was being revoked,” Shatzman said in her congressional testimony. “That afternoon, I sobbed on the phone with the [Equal Employment Office] Officer for the D.C. Courts, as I told her about both the harassment I had experienced during my clerkship, and the judge’s recent misconduct.”

The House Judiciary Committee hearing was motivated partly by reports of two judges who sexually harassed female law clerks. Lawmakers were considering legislation that would give federal judicial employees whistleblower protections and authorize special counsel investigations of judges.?

For the Legal Accountability Project, reviews of judges can only be done on the website by current and former judicial clerks or law students after paying a $20 fee.

The reviews also can be done anonymously, but only after Shatzman verifies the identity of each student or clerk doing a posting.

The database seeks opinions on judges’ style for interviews, the work environment and assigned job duties. The reviewers are asked to give a positive, neutral or negative rating to each judge.

The database also is searchable through names, courts and locations.

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.

Virginia Lawmakers Approve Retail Sales of Marijuana

Virginia’s General Assembly approved legislation last week to allow recreational sales of marijuana.

Delegates who introduced the legislation said they hoped to replace the state’s $3 billion illicit marijuana industry with legitimate retail sales that are taxed at the rate of nearly 12 percent.

Del. Paul Krizek of Fairfax County said the retail market would be done in a “responsible and thoughtful way.”

Possession and cultivation of small amounts of marijuana have been legal in Virginia since 2021. Retail sales continued to be banned because of disagreements among state lawmakers about how to do it.

Under the compromise approved last week, the tax revenue would be split 8 percent to the state, 2.5 percent to local governments and 1.125 percent to pre-college education. Each local jurisdiction could vote on whether to prohibit retail sales.

The measure would establish a Cannabis Control Authority to oversee administration of legal marijuana sales and to enforce regulations for violations.

The agency is scheduled to begin accepting applications for marijuana business licenses as soon as Sept. 2. Retail sales would start May 1, 2025.

The compromise also increased the amount of marijuana adults at least 21 years old can possess from one ounce to 2.5 ounces. Other parts of the legislation specify how it will be packaged, warning labels that must be affixed and listings of ingredients and THC potency.

Anyone who grows and produces marijuana for sale without a license could be liable for a Class 6 felony.

Gov. Glenn Youngkink, with support of religious and social advocacy groups, has generally opposed retail sales of marijuana.

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.