The U.S. Supreme Court has taken an unusually active interest in internet free speech issues.
EFF participated as amicus in a whopping nine cases before the court this year.
The court decided four of those cases, and decisions in the remaining five cases will be published in 2024.
The court showed restraint and respect for free speech rights when considering whether social media platforms should be liable for ISIS content, while also avoiding gutting one of the key laws supporting free speech online.
Next year, we're hopeful that the court will uphold the right of individuals to comment on government officials' social media pages, when those pages are largely used for governmental purposes and even when the officials don't like what those comments say; and that the court will strike down government overreach in mandating what content must stay up or come down online, or otherwise distorting social media editorial decisions.
Cases: Gonzalez v. Google and Twitter v. Taamneh - DECIDED. The court, in two similar cases, declined to hold social media companies-YouTube and Twitter-responsible for aiding and abetting terrorist violence allegedly caused by user-generated content posted to the platforms.
The case against YouTube was particularly concerning because the plaintiffs had asked the court to narrow the scope of Section 230 when internet intermediaries recommend third-party content.
Thankfully, the court declined to address the scope of Section 230 and held that the online platforms may not generally be held liable under the Anti-Terrorism Act.
The issue before the court was whether any time the government seeks to prosecute someone for threatening violence against another person, it must prove that the speaker had some subjective intent to threaten the victim, or whether the government need only prove, objectively, that a reasonable person would have known that their speech would be perceived as a threat.
The court largely agreed and held that subjective understanding by the defendant is required: that, at minimum, the speaker was in fact subjectively aware of the serious risk that the recipient of the statements would regard their speech as a threat, but recklessly made them anyway.
We urged the court to uphold the Ninth Circuit's ruling, which found that the language is unconstitutionally overbroad under the First Amendment because it threatens an enormous amount of protected online speech.
Although the court declined to hold the law unconstitutional, it sharply narrowed the law's impact on free speech, ruling that the Encouragement Provision applies only to the intentional solicitation or facilitation of immigration law violations.
Cases: O'Connor-Ratcliff v. Garnier and Lindke v. Freed - PENDING. The court is considering a pair of cases related to whether government officials who use social media may block individuals or delete their comments because the government disagrees with their views.
We argued that the court should establish a functional test that looks at how an account is actually used.
Cases: NetChoice v. Paxton and Moody v. NetChoice - PENDING. The court will hear arguments this spring about whether laws in Florida and Texas violate the First Amendment because they allow those states to dictate when social media sites may not apply standard editorial practices to user posts.
As we argued in urging the court to strike down both laws, allowing social media sites to be free from government interference in their content moderation ultimately benefits internet users.
Case: Murthy v. Missouri - PENDING. Last, but certainly not least, the court is considering the limits on government involvement in social media platforms' enforcement of their policies.
The court has not previously applied this principle to government communications with social media sites about user posts.
We urged the court to recognize that there are both circumstances where government involvement in platforms' policy enforcement decisions is permissible and those where it is impermissible.
We also urged the court to make clear that courts reviewing claims of impermissible government involvement in content moderation are obligated to conduct fact and context-specific inquires.
This Cyber News was published on www.eff.org. Publication date: Wed, 27 Dec 2023 14:13:05 +0000