D.C. Circuit Rejects Lawsuit Over Rep. Adam Schiff's 2019 Requests to Internet Companies to Deal with "Vaccine-Related Misinformation"

“Appellants offer no causal link that suggests it was an isolated inquiry by a single Member of Congress that prompted policy changes across multiple unrelated social media platforms.”

From Judge Judith Rogers' opinion today in Ass'n of American Physicians & Surgeons, Inc. v. Schiff, joined by Judges Neomi Rao and Laurence Silberman:

The Association of American Physicians and Surgeons maintains a website and publishes the Journal of American Physicians and Surgeons, both of which host information concerning "important medical, economic, and legal issues about vaccines," According to the Association, its perspective on these issues should not be considered "anti-vaccine," but rather in favor of "informed consent based on disclosure of all relevant legal, medical, and economic information." Representative Adam B. Schiff is a Member of the House of Representatives from California's 28th Congressional District and Chairman of the House Intelligence Committee.

Joined by an individual, Katarina Verrelli, who has sought vaccine-related information online, the Association sued Representative Schiff, individually and as a Member of Congress, seeking damages as well as injunctive and declaratory relief. The Association and Verrelli alleged that Representative Schiff wrote letters on February 14, 2019, to Google and Facebook "encourag[ing] them to use their platforms to prevent what [Representative] Schiff asserted to be inaccurate information on vaccines." Shortly after, Representative Schiff wrote essentially the same letter to Amazon, and thereafter posted the letters on the House.gov website in a press release as well as on the social media website Twitter.

In the letters, as reproduced in the press release, Representative Schiff expressed concern about the danger of vaccine hesitancy and the prevalence of vaccine-related misinformation on internet platforms like YouTube, Facebook, and Google's search engine. He stated: "As a Member of Congress who is deeply concerned about declining vaccination rates around the nation, I am requesting additional information on the steps that you currently take to provide medically accurate information on vaccinations to your users, and to encourage you to consider additional steps you can take to address this growing problem." He requested that the companies respond to a list of questions regarding the companies' policies about and approaches to vaccine-related misinformation. [More factual details omitted here, because they are repeated below. -EV] …

The court concluded that plaintiffs lacked standing to sue Rep. Schiff, because they didn't plausibly allege enough evidence that the injury to them stemmed from his actions; here is part of the court's reasoning:

The Association complains of being "de-platform[ed]" and "disfavor[ed]" by the social media sites and search engines through which it promotes its vaccine-related information. But any actions limiting the accessibility of the Association's web content were not taken by Representative Schiff; instead, as the amended complaint acknowledges, they were taken by independent third parties Facebook, Google, Amazon, Twitter, and YouTube.

Nonetheless, appellants maintain that the companies' adverse action against the Association's content is ultimately attributable to Representative Schiff's statements, which they view to have implicitly threatened and coerced the technology companies. The amended complaint appears to allege a primary theory of causation based on two sets of statements by Representative Schiff.

First, Representative Schiff sent the information-gathering letters to several major technology companies, including Google, Facebook, and Amazon, and shared copies of those letters as well as the responses in press releases posted on the House.gov website and in social media posts.

Second, several months later, Representative Schiff made remarks at a hearing of the House Intelligence Committee, of which he is the chair, "challeng[ing] the immunity" that certain technology companies enjoy under the Communications Decency Act, According to appellants, the companies understood that Representative Schiff was threatening to support changes to Section 230 if the companies declined to comply with his "wishes on other fronts," including his concerns about "disfavored material on vaccinations on their platforms," and his statements intimidated and "coerce[d]" the companies "to censor content that he opposes."

Yet appellants' allegations have not presented a plausible account of causation. Even assuming the Association's content was indeed demoted in search results and on social media platforms, the technology companies may have taken those actions for any number of reasons unrelated to Representative Schiff. Appellants offer no causal link that suggests it was an isolated inquiry by a single Member of Congress that prompted policy changes across multiple unrelated social media platforms.

The timeline of events in the amended complaint also undermines any possibility that the companies acted at Representative Schiff's behest in particular. For example, the amended complaint quotes Google's response to Representative Schiff's letter, which explained: "[W]e are and have been demonetizing anti-vaccination content under our longstanding harmful or dangerous advertising policy."

Likewise, the amended complaint itself acknowledges that several of the other adverse actions by the technology companies occurred before the June 2019 Intelligence Committee hearing. For example, Facebook announced its new policy of prioritizing government-sponsored vaccine information in search results in March 2019, and Twitter introduced its search-results disclaimer directing users to government-sponsored vaccine information in May 2019. Even assuming some of the policy changes to which appellants object were anticipatory in nature, the decisions by the companies seem to have occurred before Representative Schiff even sent the letters, and many took place before the hearing that purportedly coerced the companies to adopt Representative Schiff's preferences.

Generously construing the allegations of the amended complaint, the Association also appears to suggest that causation is satisfied because Representative Schiff coordinated the "drafting and timing" of the letters with the tech companies before releasing them, and that the letters were "a substantial factor motivating" the companies' "actions to suppress vaccine-related information."

But this is exactly the kind of allegation the Supreme Court rejected in Bell Atlantic Corp. v. Twombly (2007). After all, "a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality." As in Twombly, these allegations are "merely consistent with," but do not "plausibly suggest[]," the kind of coordinated action that would supply a causal link between Representative Schiff's statements and the technology companies' actions. Indeed, it is far less plausible that the companies' actions were a response to one legislator's inquiry than that they were a response to widespread societal concerns about online misinformation….

Comments

[grb]

Wikipedia is your friend. Quote:

The Association of American Physicians and Surgeons (AAPS) is a politically conservative non-profit association that promotes medical misinformation, such as HIV/AIDS denialism, the abortion-breast cancer hypothesis, vaccine and autism connections, and homosexuality reducing life expectancy. The association was founded in 1943 to oppose a government attempt to nationalize health care. The group has included notable members, including American Republican politicians Ron Paul, Rand Paul and Tom Price.

The Right made a decision there was more political gain in opposing any effort against covid than fighting the disease itself. Despite his effective stewardship in initial vaccine development, most of the Right’s lies about covid started with Trump. Now even he gets booed by the MAGA faithful when encouraging vaccination. Now a loathsome piece of shit like DeSantis calls vaccination the “jab”, plays dog-whistle politics with pregnant women’s fears over getting vaccinated, and is too damn cowardly to admit he got a booster shot. That kind of admission isn’t allowed in the pro-disease party.

Thousands of people have needlessly died because of the Right’s sordid political games with covid. You can blame the dead for being gullible, but the real problem is the moral rot at the core of today’s Right.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Far more deaths from lefties, such as forcing rest homes to take covid victims.

It’s one thing to point out when the right screws up, which should be pointed out. It’s another thing entirely to imply only the right has screwed up and caused covid deaths, especially when the link between wackos spouting nonsense is tenuous compared to the direct link between leftist policies and unnecessary and predicted deaths.

[grb]

1. The Right remade itself as the anti-vaxx party.

2. That led to vaccination rates dozens of percentage points lower than any corresponding group (whose politicians and media figures encouraged their followers to make rational health care decisions – not discouraged them)

3. That lower vaccination rate resulted in thousands of unnecessary deaths. If truth that basic triggers you, why bother even commenting here?

Of course, that’s not the end of the Right’s contemptable behavior. They’ve also consistently lied about covid’s extent, its effects, the statistics of its reach and the number of its deaths. They’ve fought almost every single measure against the disease. They’ve led bizarre smear campaigns against public health officials. They’ve promoted worthless quack cures as political gimmicks.

Remember Trump’s huckster scam with hydroxychloroquine? He promoted it scores of times over a two week period even while the Right’s propaganda machine added a hundred-times more. The politics were clear : Trump got to claim the pandemic wasn’t a real emergency (look! a miracle cure!) while trashing the medical experts in his own administration (but they’re hiding it from you!). People died believing that sleazy con as well.

But their anti-vaxx campaign has done the most damage. Before covid, anti-vaxxers were fringe nut-jobs evenly spread across the political spectrum. The Right’s political leaders & media machine had to work hard to make their side anti-vaxx. It took consistent & focused effort.

https://www.brookings.edu/blog/fixgov/2021/10/01/for-covid-19-vaccinations-party-affiliation-matters-more-than-race-and-ethnicity/

[ah....Clem]

The fact remains that just about the only people in the US dying or needing hospitalization from Covid are the unvaccinated. And who are these people who are dying and filling the hospitals to overflowing? Gullible rubes who believe the nonsense spouted by noted “leftists” like Tucker Carelson, Joe Rogin, OAN, Newsmax, Fox News, and The Association of American Physicians and Surgeons, just to name a few.

As someone once said, it started out as a respiratory virus and then mutated and turned into an intelligence test.

[Darth Chocolate]

Why then are the populations who are least “vaxxed” primarily minorities?

[ah....Clem]

No, the populations who are least “vaxxed” are *not* primarily minorities, unless you consider republican voters to be “minority” (for which there is some considerable evidence)

This was a common talking point a year or so ago, but it’s been eclipsed by, you know, actual data. Please do try to pay attention.

[BillyG]

Well, we could always look at actual data. Bloomberg, that bastion of right-wing conspiracies, has info on vaccination by race.
https://www.bloomberg.com/graphics/covid-vaccine-tracker-global-distribution/us-vaccine-demographics.html

[grb]

Darth Chocolate : “….primarily minorities…”

There’s a link to data two comments above. (you’re wrong)

[ah....Clem]

Sigh. Attempting to change someones mind using facts is doomed to failure.

Logic, evidence, reason, etc. are also equally impotent tools.

You need to push their emotional buttons, but that’s messy and leaves one feeling manipulative.

[Titus PUllo]

Do you realize or question the opportunity cost of the one size fits all govt approach that failed?

1. There was no chance to isolate the virus (contact tracing) because by the time the “experts” at the CDC and NIH figured out what was going on, it was taking the route of natural immunity like all pandemics do.
2. Masking doesn’t work (see 1 above). Flatten the curve is for folks who failed calculus..the area is the same and see 1 above anyway.
3. The fatality rate is very low except for high risk folks who should have taken precautions but shutting down society didn’t work. As evidence by the fatality rates in places which did shut down versus those that didnt..no difference.
4. A broad based approach with thereputics and vaccines made more sense, not a magic bullet vaccine esp since these types of viruses tend to mutate quickly.
5. Vaccines were more preemptive protection against some variants to mitigate symptoms. You can get covid with the vaccine and spread it…so vaccines are a personal health issue NOT a public health issue.
6. The effect of printing trillions and paying people not to work ignited inflation.
7. The “masks” on children is child abuse given the lower than the flu fatality rate for kids.

The govt “experts” failed like they always do. And this pandemic will go the same way all the others did..about 2 years until the mutations are harmless.

[m4019597]

+1 Titus

The rest of y’all is ignorant

[eyesay]

I’ll correct only a few of the many errors in this mostly erroneous post.
* Flattening the curve, even with equal area under it, is still a good idea, because of health care capacity in many dimensions, including beds, ventilators, doctors, nurses, and more. Also, flattening the curve at the beginning is likely to reduce the area under it.
* The United States is rapidly approaching a million deaths and this is huge deal.
* Inflation in the U.S. is driven by supply chain issues including microchips and seaport capacity. See Paul Krugman in The New York Times.
* AIDS did not mutate into harmlessness. Polio did not mutate into harmlessness. Smallpox did not mutate into harmlessness. Typhoid did not mutate into harmlessness. Bubonic Plague did not mutate into harmlessness. Epidemics are controlled by public health.
As I said, Tutus Pullo’s posting is almost all wrong, but this is enough for now.

[VinniUSMC]

Inflation in the U.S. is driven by supply chain issues

Caused by …?

[M L]

“See Paul Krugman”

lol

[bernard11]

Oh right. What does he know about economics compared to the famous M.L.?

[Brett Bellmore]

“Flatten the curve is for folks who failed calculus..the area is the same ”

Sheesh. “Flatten the curve” was explicitly about lowering the peak so it didn’t overwhelm hospital capacity, worsening outcomes. Which has nothing to do with failing calculus.

It was later Covid policy that was pitched to people who’d failed calculus. Not “flatten the curve”.

[Social Justice is neither]

The fact is the “flatten the curve” policies extended beyond their original 2 weeks and are largely indistinguishable from the policy of nearly 2 years later, with some things only getting worse.

[Brett Bellmore]

Right, the policies that originally justified as ‘flattening the curve’ got continued where that wasn’t a justification, I think because a moral panic rapidly set in, and nobody wanted to appear to be ramping anything down.

[Stephen Lathrop]

Bellmore, the nation is quick-marching toward a million dead from Covid, minus whatever outlandish figures the minimizers decide to make up. Is that context for a moral panic, or for a mortal panic?

[Brett Bellmore]

The march has slowed a lot, though I hear they’re talking about reviving the “nursing homes must take the ill” policy, in order to rev up the pace.

[wolfefan]

I dunno – there seem to be a lot of differences, at least in northern VA where I used to live and rural northwestern IL where I live now between those flatten the curve policies and the current situation. There are tons more people out and about now (even with a low today of -9), businesses are open, so-called “lockdowns” are the exception rather than the rule, cars are all over as people go from place to place, I can go to Wal-Mart without wearing a mask if I choose, etc. I think “largely” is doing a lot of heavy lifting in that comment.

[jb]

LOL. You think the policies now are nearly identical to the initial lockdowns? This is a hard perspective to take seriously since I’m not aware of anywhere in the US that does not currently allow indoor dining, retail shopping, movie theatres, religious congregations, etc.

[bernard11]

Thanks, Brett.

Let’s also note that, given that at some point there Are going to be vaccines, treatments, etc., “flattening the curve” does in fact reduce deaths. The area is not the same.

It’s Titus who needs calculus lessons, or maybe he should start with arithmetic and work his way up.

[Don Nico]

Bernard,
You could have added that at some point there will be extremely contagious, even if less virulent variants, that will increase the area under the curve and overwhelm hospitals. Omicron is doing just that even though its apparent fatality rate is close to on par with seasonal flu.
This pandemic is complicated and complex. Making pushing matters to the future a risky policy in itself.

[M L]

“The effect of printing trillions and paying people not to work ignited inflation.”

All disasters and crises, whether manufactured or natural, are increasingly used to rob the American people blind and double down on mortgaging the grandkid’s future. COVID was a continuation of this exponential trend line or maybe a significant break higher from the trend line.

[M L]

“Wikipedia is your propaganda tool.”

Fixed that for you.

[damikesc]

“Wikipedia is your friend.”

The founder says otherwise. It is a political monoculture and poisonous.

[Life of Brian]

Wikipedia is the canary in the coal mine on what life would actually look like were “truth” measured, sculpted, and disseminated by a 50.01% majority (that is, a majority of the relevant universe of people who have the time and stamina to hang with the cadre that have an agenda to push and tons of time on their hands, which is a whole discussion of its own).

If you think Twitter and Facebook are the toilet of humanity, tune in to a Wikipedia editor flamewar sometime.

[DewbieDewbieDoo]

“DeSantis calls vaccination the “jab” ”

Everyone calls it the jab. Every Engrish speaking country except the US. With a year of vaccinations being in the news on a daily basis, people have glommed onto that lazy shorthand.

If you’re not noting lots of Americans (even main stream media personnel) using the 1-syllable version in place of the more cumbersome 4-syllable version, you must live under a rock or something.

[Kazinski]

Vaccines do help reduce the disease burden, but there is one problem with your ongoing serial rant:

No country anywhere on earth has been able to vaccinate themselves out of the pandemic.

But that’s ok, vaccines aren’t your point, conservatives are bad is the point, we get it.

[Don Nico]

Indeed, even the UAE and Portugal have have massive numbers infected with Omicrom

[Michael P]

“Appellants offer no causal link that suggests it was an isolated inquiry by a single Member of Congress that prompted policy changes across multiple unrelated social media platforms.”

Conclusion: Make sure lots of your Swamp Friends make inquiries similar to yours encouraging censorship.

[AmosArch]

Whats the official definition of ‘misinformation’ and why are sjw dudebro tech ceos with dozens of pending sexual harassment lawsuits and an unwashed hippy who made an urban legend website in the nineties the gatekeepers of this definition?

[David Nieporent]

Because it’s their companies.

[ah....Clem]

Amazing that someone who frequents a libertarian blog has no concept of private ownership and the rights that ensue from ownership.

[AmosArch]

Nope its no longer a matter of private companies policing their own spaces but also colluding with government to persecute political opponents by the private companies (here) or turning private company policies and concepts into government policies and concepts. Ie far left Sillycon Valley’s concept of ‘misinformation’ and ‘hate’ filtering into government agenda. See government and institutional proposed and enacted legislation against ‘hate speech’ and the ongoing persecutions of the Great Jan 6th Picnic, based in large part on SillyCon Valley based definitions of ‘misinformation’ and ‘hate’.

[David Nieporent]

No, it’s a matter of private companies policing their own spaces.

[AmosArch]

government ban on wrongthink != private company policing its own space.

[David Nieporent]

There is no “government ban on” anything.

[AmosArch]

O REALLY?

https://reason.com/volokh/2021/12/02/connecticut-racial-ridicule-ban-being-challenged/

[jb]

Thanks for a link to a questionable law that has nothing to do with tech companies’ misinformation policies.

[AmosArch]

We’ve had an extreme lurch to the left in society around the same time Big tech monopolized control of the public forums. Coincidence I guess.

[apedad]

Clarification: Any turn to the left is “an extreme lurch” for AA so be sure to weigh his comments appropriately.

[benji]

Big Tech “monopolized control” of public forums by… creating them in the first place?

[Brett Bellmore]

Well, there was a bit more to it than that, as sites like Gab and Parler learned. Every time somebody sets out to create a forum that won’t censor in the same way the dominant platforms do, they run into an amazing gauntlet of obstacles.

MeWe hasn’t run into them, because MeWe never committed to refraining from censorship, just privacy. Though they do have a lighter hand, and arguably are less abusive about their moderation, they do kick people off on a regular basis for many of the sorts of content FB and Twitter purport to ban. (But regularly tolerate if the political valiance is more left-wing.)

[Noscitur a sociis]

We’ve had an extreme lurch to the left in society around the same time Big tech monopolized control of the public forums. Coincidence I guess.

That law was enacted in 1917.

[AmosArch]

>>>>>>>>>>>>>>>>>
Big Tech “monopolized control” of public forums by… creating them in the first place?
>>>>>>>>>>>>>>>

Nope, the creators were almost all just oversexed or virgin nerds and fratbros. The ideologue leftist ethnic studies and social justice majors usually filter in once the company goes big.

[benji]

Doesn’t seem like that’s a good reason to eliminate private property.

[Sarcastr0]

You think more about the sex lives of those you disagree with than anyone I know.

[AmosArch]

Unless they are conservative.

[AmosArch]

Also i never claimed to be an anarchist. Reining back a worldwide powerful monopoly from colluding with other monopolies a bit is one of the least controversial types of business regulations in a world where hundreds of thousands already exist mostly supported by progs. You’d have a much firmer foot claiming ‘you’re not a true progressive!’ for progs who are suddenly laissez faire on this and only this issue than ‘lolz you are not a true libertarian!’ for libertarians who support this.

[benji]

Defining a monopoly as “the private property owned by a single corporation” is probably only going to benefit progressives.

[BravoCharlieDelta]

Is anyone surprised at how welcomed political censorship and discrimination is by the Left when it’s being deployed in their favor?

They are genuinely evil people. I haven’t encountered one who wasn’t.

[M L]

Because its their companies and their free speech! And also because they are collusive monopolies.

Just build your own website, bro! *gets simultaneously banned from Android, iOS, Google Search, Google Ad Services, YouTube, Facebook, Twitter, Amazon Web Services, other hosts, PayPal, Visa, Mastercard . . . all your would-be vendors also get banned”

[BravoCharlieDelta]

Weird how they don’t tell gays to just bake their own cakes. Or to build their own schools for grooming.

[David Nieporent]

Left unmentioned is the fact that this is roughly the 7 millionth suit making these arguments about how some politician’s words caused them to be censored on social media, and roughly the 7 million suit that has been rejected. (This one, at least, more appropriately sued the politician rather than the social media companies, but it was no less baseless.)

[ah....Clem]

Getting back to the decision on the case (i.e. the legal reasoning) the money quote is “…it is far less plausible that the companies’ actions were a response to one legislator’s inquiry than that they were a response to widespread societal concerns about online misinformation….”

Exactly. Adam Schiff is just one guy. Yeah, he’s a member of the House, but that only buys one so much. The thing is, those of us who have been vaccinated have completely had it with the anti-vaxx death cult, and the social media companies know that. IOW, they sued the wrong person, although suing the “right” people would be a non-starter as well.

Another day, another LOLsuit tossed. Either the attorneys for the plaintiffs are just running up the billing hours, or they should write their respective lawschools and politely request a refund of their tuition.

[David Nieporent]

I do think it inappropriate for members of Congress (or other government officials) to be berating private companies for the speech those companies are disseminating. Especially using the resources of their office. It’s illiberal and an abuse of their offices.

But that does not make it actionable without a whole lot more than the sort of allegations that all of these lawsuits make.

[Stephen Lathrop]

Nieporent, stop supporting censorship.

[m4019597]

Wrong.

Pols only act in response to polls and assurances. If Schiff, of all scumbags, put out letters and press releases about media, it’s only because he already got the media to give him what he wanted.

His own words are the evidence of companies doing the wishes of government. That makes them agents of the government, subject to 1A.

Did law school make you stupid or does Schiff have blackmail over you?

[benji]

Yes, this is brilliant. So anytime anyone publishes speech you don’t like (or refuses to publish speech you do like), you have a compliant congressman criticize the publisher publicly, and then at some other time discuss revoking section 230 or similar. This creates “government action” and allows you to sue the publisher to force them to publish whatever you want!

[Ben_]

If they had direct evidence that these companies acted due to Schiff, the outcome would have probably been the same. Courts aren’t going to help if they can find a way to avoid it. Especially not the DC circuit.

[Noscitur a sociis]

The most egregious bad faith is truly the completely hypothetical kind.

[Ben of Houston]

Now we are going back to the same problem that we have for defamation. The bar for evidence is so high that it might as well be a brick wall. Unless people are insanely stupid and brazen, making paper trails and in general acting like a comic book supervillain, it’s impossible to prove.

[CJColucci]

You might want to check the lineup on this case.

[ReaderY]

How did the merits get reached here? Why isn’t Schiff absolutely immune under the Speech and Debate Clause? Why aren’t his actions classic legislative speech?

[David Nieporent]

I was wondering the same thing, actually, so I took the radical step of checking.

The District Court did dismiss on Speech & Debate Clause grounds, as well as on standing grounds. (Plaintiffs’ alleged damages were caused by third parties not before the court.) The Circuit Court upheld the dismissal on standing grounds, so felt no need to also reach the S&D Clause.

[DewbieDewbieDoo]

“absolutely immune under the Speech and Debate Clause? Why aren’t his actions classic legislative speech?”

Which part of

“Schiff wrote letters on February 14, 2019, to Google and Facebook (and Amazon) “encouraging them to use their platforms to prevent what [Representative] Schiff asserted to be inaccurate information on vaccines.”

is classic legislative action?

It’s not as if he were in the process of drafting some bill forbidding inaccurate speech on vaccines.

Instead, he was hinting that he wanted the tech platforms to do for the gov’t what the gov’t could not legally do for itself.

I don’t know what you call that, but it ain’t legislating. Not sure why the lower court took the bait on the S&D clause.

[Kazinski]

Actually there maybe a decent lawsuit here but they need to add Google and Twitter and Facebook to the lawsuit and probably the Biden Administration.

There is precedent for companies being held liable for violating 1st amendment rights at the behest of the government. What’s missing here is internal documents showing that the companies were responding to a request from Schiff or the administration when they removed posts or suspended accounts.

Something like “Were getting a lot of heat from capital hill to clean up this ‘misinformation’ from Capital Hill. Go out and remove the posts that have the crap they are complaining about.”. And it wouldn’t surprise me it a smoking gun like that exists.

That would make the tech companies government actors and liable for violating people’s constitutional rights regardless of section 230. There has already been a shareholder initiative at Google to get the company to disclose any such communications with the government in order to appraise the shareholders of litigation risk to the company.

And while of course I am not aware of any specific requests from US officials, there is one well known communication between Angela Merkel and Zuckerberg where he assures her that Facebook is working hard to find and remove posts her government doesn’t like concerning immigration. Is not farfetched to think the tech companies would respond to a request like Schiff’s likewise.

[David Nieporent]

Actually there maybe a decent lawsuit here but they need to add Google and Twitter and Facebook to the lawsuit and probably the Biden Administration.

No. As I mentioned above, millions of such lawsuits have been filed by Trumpkins and Trumpkin adjacent people like RFK Jr. They’ve all failed.

That would make the tech companies government actors and liable

No, it would not. It would make the tech companies victims of government coercion, and not liable. It would make the government liable. In theory, if there were no relevant immunities.

[m4019597]

Wrong. Again.

Pols only act in response to polls and assurances. If Schiff, of all scumbags, put out letters and press releases about media, it’s only because he already got the media to give him what he wanted.

His own words are the evidence of companies doing the wishes of government. That makes them agents of the government, subject to 1A.

Did law school make you stupid or does Schiff have blackmail over you?

[Kazinski]

Well perhaps millions of lawsuits have gone down in flames, but see Hanlon v Berger for the proposition that private actors can be held liable for violating 4th amendment rights when acting with government authority that of course got qualified immunity. But CNN was held liable for acting in conjunction with the Fed’s.

https://www.prisonlegalnews.org/news/2000/apr/15/no-immunity-for-media-defendants-in-ridealong-suit/

If the Rehnquist court court go there this court could too.

[Sarcastr0]

Lets make this lawsuit MORE ambitious, based on this much more limited 4A precedent.

4A precedent is not clearly applicable to 1A – this cause of action would be making new law. Generally you don’t want to make new law with a hugely expansive partisan case
And even if constructive agency did apply, you admit you have no factual predicate for proving it!

This is not a lawsuit, it’s a conspiracy theory.

[Voize of Reazon]

CNN was exposed to Bivens liability in Hanlon by virtue of the “joint action test”. They even had a written agreement with the AUSA about participating in the search alongside government agents. There is no such joint action here.

[David Nieporent]

1) You don’t really want to rely on a 9th-circuit-attempting-to-expand-Bivens foundation.
2) The Rehnquist court didn’t say anything about that issue.
3) Your link is wrong; the 9th circuit did not hold that the media defendants were liable. It just held that they might be.
4) That case actually did involve the private company acting with government authority. CNN came on the raid with the USFWS agents. Without the agents, the CNN crew could not legally have been on the property; it would’ve been trespass. That is not remotely similar to the situation we’re discussing here, where Facebook et al. have the absolute right under the 1A to remove content; they could have done that whether or not Schiff had ever opened his mouth.

[Kazinski]

Well I think you are wrong that 4th amendment precedent has no bearing in this case.

Private actors working in conjunction with the government seems like it is applicable across a wide range of constitutional rights.

It would be like saying that a police department that lost a case violating the 4th amendment doesn’t have to worry about violating the 1st amendment when they arrest someone for filming the police. Sure facts and qualified immunity matter, but I think the courts will not distinguish to much which amendment is being violated, as long as they are comfortable there is a violation.

[Sarcastr0]

It may have a bearing, but that would be an extension of the law as I understand it. Maybe not an illogical one, but you can’t just paper over the fact that your theory includes making new law.

[David Nieporent]

Well I think you are wrong that 4th amendment precedent has no bearing in this case.

And yet, the courts disagree with you. The 1A and the 4A are entirely different scenarios, for the reasons explained above.

But to make it concrete, think of it this way. There are several possible scenarios:

1) Facebook always intended to delete the AAPS’s content, and would have done it even if Schiff hadn’t said a word.
2) Facebook never thought about it one way or the other until Schiff spoke up, and then looked at it and decided he was right and decided to delete it.
3) Facebook wanted to keep the AAPS’s content, but was scared of Schiff and did it to avoid being penalized by the government.

In scenario 1 and 2, there’s no joint action. Facebook was just doing what it had every right to do under the 1A, and the AAPS’s rights aren’t violated. Schiff speaking up can’t strip Facebook of its own 1A rights. The fact that Schiff gave Facebook the idea in scenario 2 doesn’t change that.

In scenario 3, yes, Schiff has violated the AAPS’s rights. But he has also violated Facebook’s rights. Facebook is a victim, not a co-conspirator with Schiff.

[M L]

It’s amazing how much the Internet has changed in the last 5 years or so. Particularly the regular experience of the Internet through platforms/services like Google search.

[DewbieDewbieDoo]

“how much the Internet has changed in the last 5 years”

Does that mean that you can make $6349.62 a week using This One Weird Trick?

[Life of Brian]

Google is now generally unfit for its original purpose: making it easier to find things you’re looking for.

Its new mission appears to be to make it more difficult to find things you’re looking for, unless you’re looking for the “right” things (as deemed by them, at that particular moment).

It’s now grown far beyond promoting favored content and demoting the unfavored. As I mentioned last week, I can no longer force it to find specific comments I’ve made on this forum, even with tons of quoted words trying to force the algorithms into a corner. Other search engines pull them right up.

The authorship or specific content is beside the point. The bottom line is that a supposed search engine is steadfastly refusing to return content that exists and is specifically and unambiguously requested.

That’s inexcusable in and of itself, without even considering the ramifications of this relatively sudden and painfully transparent shifting of gears only occurring after using its previous actually-generally-helpful personae to ride a network effect into its current ubiquity.

[Rev. Arthur L. Kirkland]

” Its new mission appears to be to make it more difficult to find things you’re looking for, ”

Will this perceived defect, in your judgment, cause Google’s market capitalization — which has roughly doubled, from $1 trillion to $2 trillion in the most recent couple of years — to take even longer than a few years to reach $3 trillion?

[Life of Brian]

My goodness, Rev! “Bigger is betters!!!1” seems like a rather… er, simplistic worldview for someone of such self-proclaimed intellectual stature as yourself. Particularly in the context of a company routinely fined huge sums for abusing its dominant position.

[M L]

What’s funny is that just a few short months ago, the left wingers were still denying that any of this was happening. They would fly into fits of rage and denial at the mention of big tech’s political censoring. Apparently that was silently and suddenly abandoned as it became too obvious even for them.