Florida Judge Argues That § 230 Is Beyond Congress's Power

White v. Discovery Communications, LLC, decided Wednesday by the Florida Court of Appeal, rejected a man's libel claim against Netflix, on jurisdictional grounds (stemming in part from a particular procedural feature of the case), and against Microsoft on § 230 grounds. The facts are interesting, though largely beside the point for this post:

[Nathaniel] White sued various nonresident defendants for damages in tort resulting from an episode of a reality/crime television show entitled "Evil Lives Here." Mr. White alleged that beginning with the first broadcast of the episode "I Invited Him In" in August 2018, he was injured by the broadcasting of the episode about a serial killer in New York also named Nathaniel White. According to the allegations in the amended complaint, the defamatory episode used Mr. White's photograph from a decades-old incarceration by the Florida Department of Corrections. Mr. White alleged that this misuse of his photo during the program gave viewers the impression that he and the New York serial killer with the same name were the same person thereby damaging Mr. White….

[Mr. White's] complaint … alleged that Microsoft used search engines "through the internet or any other internet service" to make the defamatory statements available to others. According to paragraph 50 of the amended complaint, Microsoft's use of search engines and other internet services made it, and certain other defendants, "information content publishers." Mr. White sought to hold Microsoft liable for publishing the allegedly defamatory episode….

And here's the reasoning of Judge Robert Long's concurrence:

I concur with the Court that under section 230(c)(1), Microsoft cannot be treated as a publisher of the defamatory statements in this case. But if section 230 did not exist, Microsoft may be liable under Florida law for republishing the defamatory material. See Doe v. Am. Online, Inc. (Fla. 2001) ("[E]very repetition of a defamatory statement is considered a publication.").

I question section 230(c)(1)'s constitutionality as applied to state defamation law. 47 U.S.C. § 230(e)(3) ("No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."); Doe (holding section 230(c)(1) preempts state defamation law)….

[The Commerce Clause] gives congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its authority to "regulate Commerce with foreign Nations, and among the several States." The question, then, is whether the original public meaning of the federal authority to "regulate Commerce … among the several States" conveyed the power to nationalize state common law defamation actions.

Defamation actions were undoubtedly a matter of state common law at the founding. The Supreme Court recognized long ago that "there is no federal general common law." Erie R. Co. v. Tompkins (1938). The only federal common law that survived Erie were rules of decision applicable to "federal questions [that] cannot be answered from federal statutes alone." This necessarily put defamation law squarely with the states. The federal government "is acknowledged by all, to be one of enumerated powers" and all other powers were reserved to the states.

It borders the preposterous to conclude that, at the time of ratification in 1788, the people understood the so-called commerce clause to be a vehicle for stripping the states of the power to police defamation. "The Clause's text, structure, and history all indicate that, at the time of the founding, the term 'commerce' consisted of selling, buying, and bartering, as well as transporting." Gonzales v. Raich (2005) (Thomas, J., dissenting) (internal quotation marks omitted); see also United States v. Lopez (1995) (explaining the importance of "the distinction between what is national and what is local" in considering the commerce clause and to avoid the creation of "a completely centralized government").

The internet, and related e-commerce, can certainly be interstate in nature. But the commerce clause was not intended to nationalize the whole of America law. Areas of law that were understood to be reserved to the states, were not enumerated in the Constitution, and are not directly related to the buying, selling, or transporting of goods and services were plainly not intended to be subject to federal regulation.

I'm skeptical of this analysis: Even if the Court wanted to reconstruct the Commerce Clause as being limited to regulations of genuinely interstate commerce, interstate commerce is precisely what Microsoft is engaged in—it's providing commercial services on an interstate basis, the modern equivalent of "transporting … goods and services" across state lines.

Just as an interstate network for commercial shipping of newspapers would have been commerce among the several states in 1787, so the commercial-advertising-supported interstate transmission of information through electronic means would be as well. Under this more traditional view of the Commerce Clause, it may be that purely local defamation (e.g., me slandering someone in person in Los Angeles, or perhaps even libeling someone by publishing something in a local newspaper distributed in California) would be immune from federal control. But Internet distribution through a commercial service, a quintessentially interstate (and international) medium would be well within Congress's power, under the Commerce Clause.

Still, perhaps I'm mistaken; and in any event, I thought I'd flag the opinion for our readers, since it's noteworthy that this appellate judge is taking this view.

Comments

[Rev. Arthur L. Kirkland]

With Dominion-Fox and Carroll-Trump receded from headlines for a bit, the Volokh Conspiracy has resumed commenting on defamation developments . . . but, no doubt, only until Smartmatic-Fox becomes prominent.

Carry on, clingers.

[MatthewSlyfield]

Under this more traditional view of the Commerce Clause, it may be that purely local defamation (e.g., me slandering someone in person in Los Angeles, or perhaps even libeling someone by publishing something in a local newspaper distributed in California) would be immune from federal control. But Internet distribution through a commercial service, a quintessentially interstate (and international) medium would be well within Congress's power, under the Commerce Clause.

I generally favor a much narrower reading of the commerce clause than SCOTUS has applied. However, I agree here, the internet is most definitely interstate commerce.

[Dilan Esper]

This is a good example of the point I always make about the Commerce Clause- the big expansion wasn't the New Deal and Wickard, the way many on the Right think. (And I share the Right's dislike of Wickard.) It was the expansion of the national economy.

And defamation is just a great example of that. A defamation case in 1791 involved someone orally defaming someone, or printing out a leaflet, or maybe something in the newspaper that was locally distributed to subscribers. All of that happened within one state.

Now, defamation happens on the Internet and is theoretically available worldwide. What used to be an intrastate activity is now an interstate one, and as a result, Congress has a power it did not really have in 1787. And it wasn't because of the dastardly New Deal court or scheming liberals; it was just the natural result of the fact that so much more of what we do now in 2023 crosses state lines.

[hoppy025]

That's all good and fine, but it doesn't mean that Congress should get plenary police power on anything that potentially impacts the national economy. That point has been stretched to the point of absurdity. For example, a robbery of any business is held to implicate interstate commerce because the business now has less money to spend in interstate commerce. The arson of any rental property is held to implicate interstate commerce on the grounds that the payment of rent to a landlord ultimately enters the national economy. The carjacking of any car, or the possession of any gun, is held to implicate national commerce if the car or gun has EVER left the state it was made in.

That's ridiculous and way beyond what the founders intended.

[Dilan Esper]

That’s all good and fine, but it doesn’t mean that Congress should get plenary police power on anything that potentially impacts the national economy.

I agree with your use of the word "potentially"- just because something potentially might affect interstate commerce shouldn't be enough to bring it within the commerce power.

But even if you restrict the commerce power to just that, interstate commerce, it is still an enormous power. (And TBC, the framers intended it to be one- the committee that drafted the Commerce Clause was instructed to ensure Congress had the power to deal with any problem of national scope, because the Articles of Confederation failed to grant Congress enough power.)

And many of your examples seem to me to be unproblematic. For instance, I would probably agree that a local robbery of a small local store might more properly be held to be outside Congress' power. But a robbery of a national chain store? That's interstate commerce.

Carjacking is an intermediate case. It's a local crime, but on the other hand, it happens on the roads, which are a big part of interstate transportation, and of course the cars themselves and the weapons and everything else travels in interstate commerce. As a policy matter I'd prefer carjacking, and most crimes, be dealt with on the state level. But you need a principle as to why it isn't actually part of interstate commerce.

[hoppy025]

Because it's simply not. If you carjack a car and drive the car to another state as part of the same criminal act, there's an argument.

And of course, carjacking a Greyhound bus on its way from Chicago to San Francisco is clearly as much interstate commerce as a rail line is (which has long been covered under Congress' interstate commerce powers, even before Wickard and the modern era).

But a regular car so you can drive three miles locally? Nah.

[Dilan Esper]

The problem is then you'll create a live issue in every carjacking case. Is carjacking a municipal bus interstate commerce? What about carjacking the car of a salesman on interstate business?

Again, I don't have a lot of sympathy for Wickard, but I think one plausible way of seeing modern caselaw is that because a lot of stuff really is connected with interstate commerce nowadays, the Court sees it as not worth the trouble to suss out the few cases that aren't. Which isn't, I will admit, a great way of doing law, but it is understandable.

[hoppy025]

Right, that's basically the same line of reasoning for civil forfeiture. "It's really hard to prove that a person with a large amount of cash that's not account received the cash through illicit means, and that's unacceptable from the perspective of the state, so we'll instead shift the burden of proof to the person whose money is seized."

Or, for constructive possession, "If we allow all four people in a car to get off scot-free when there are illegal weapons or drugs in the center console because we can't prove whose it was, so instead, we'll create a legal fiction that requires that each person prove it wasn't theirs."

I don't find "Because it'll make the government's job harder" to be a compelling reason for an unjust law or particular interpretation.

[Dilan Esper]

Bear in mind in these cases we are talking about guilty criminals who get a federal instead of a state charge. It's not anything like civil forfeiture where innocents are wrapped up.

[hoppy025]

You're assuming that every federal charge has a state analogue. They don't. For example, federal law prohibits the possession of a firearm by a convicted felon, no matter how non-violent or non-serious the felony and no matter how long ago in the past.

Many states don't. So the law is not just punishing someone who deserves to be punished in federal court instead of state court, but punishing someone who arguably doesn't deserve to be punished at all.

[Dilan Esper]

So you think felons should be able to possess handguns? That seems… like a really bad idea.

And in any event, it doesn't at all sound analogous to the innocent people caught up in asset forfeiture.

[hoppy025]

Yes, I do. If a person is dangerous enough that they shouldn't be allowed to possess a handgun, they shouldn't be out of prison.

A person convicted of selling weed to his friends in 1968 or writing a bad check in 1971 should not lose his 2nd Amendment rights forever.

[Dilan Esper]

That's nuts. Prison costs us a lot of money, and there's a ton of people who are far more likely to commit crimes if we allow them guns than if we don't.

Plus, not having guns is a classic probation/parole condition anyway.

[Bored Lawyer]

What if you carjack a car on an interstate highway, and then drive it two miles to a local, in-state chop-shop? (This actually happened to a friend of mine, they left him and two passengers on the side of Route 95 in the Bronx!)
True, the car-jacker acted completely intra-state. But the road is an interstate highway, and Congress has a interest in making sure that people and vehicles can travel that route safely. (In fact, my friend was traveling from NJ to a wedding in New York. )

[Rossami]

re: "Congress has [an] interest in making sure that people and vehicles can travel that route safely."

No, they don't. That's why there's no federal highway patrol. Safety even of the interstate roads remains a purely state responsibility managed by state highway patrols..

[hoppy025]

Which Congress has commandeered through the "highway funding" line of crap (which Scalia and Rehnquist outed themselves as intellectually dishonest in South Dakota v. Dole)

[Bored Lawyer]

So what? Congress lets the states do the police work (and subsidizes that through funding). Why does that not mean it has a Constitutional power to punish what amounts to piracy on interstate highways?

So if the car-jackers traveled from State A to State B before they did their deed, that would be within the Commerce power? Sorry, I find that distinction forced.

[MatthewSlyfield]

"and of course the cars themselves and the weapons and everything else travels in interstate commerce."

That something traveled in interstate commerce 5 or 10 years ago does not in any way make what happens to it today interstate commerce. That is a total bullshit argument.

[Bored Lawyer]

That I agree with. If I drive my car down my local street, that's not within the Commerce Clause power, even if my car was manufactured in another state or country.

[Bored Lawyer]

This is oversimplified. There were publications distributed throughout the colonies even before the Revolution. So defamation could well have been nationwide. But it is true that most defamation at the time was of local concern.

And even today there are matters of local concern. If I publish a claim that my local mayor is a crook who is stealing town funds, I doubt anyone in the next state will even hear about it or care.

[Dilan Esper]

If you publish it on the Internet, you've distributed it worldwide though.

[mydisplayname]

Communication via the "Internet" is not necessarily interstate communication. A Microsoft Bing user, for example, may have an wholly intrastate path to the Microsoft data center responding to his query; in fact, this is quite common in some costal states (Virginia, for example, with its 4 massive Microsoft data centers. See https://www.datacenterdynamics.com/en/news/microsoft-files-for-six-building-data-center-campus-in-virginias-mecklenburg-county/ ). I vaguely recall a similar situation involving (the "old") AT & T and a #5ESS communicating with its tandem of intrastate #1AESSes with another intrastate #5ESS.

If the Judge's reasoning is correct, pandemonium would result. But that doesn't mean he is incorrect.

[Dilan Esper]

And then it gets broadcast out to the world. At which point it is in interstate commerce.

[Bored Lawyer]

I believe the Supreme Court views these as "instrumentalities of interstate commerce" which are subject to federal regulation, even if the particular event occurred intrastate. To use a physical analogy to the internet, the interstate highway system is subject to Commerce Clause regulation, even if (as often happens) someone only travels intrastate on that road system.

[jb]

Even if you accept the judge's logic, it plainly doesn't apply in this places since none of the defendants are residents of Florida.

[wolfefan]

IANAL but I also wondered why this wasn't interstate commerce. Can someone tell me why White sued Netflix instead of ID? I watch Evil Lives Here and it's an ID show. I don't think Netflix produces it. Or is there a separate suit against the production company?

[Publius_2020]

He did sue ID... it's the lead defendant. He also sued others who rebroadcast the show.

[shawn_dude]

And the people who indexed the available shows generally and published that index to the internet so that others could find the various shows they wanted to see--which is why MS Bing is involved.

Is publishing an index, within which the potentially defamatory content sits, legally the same as republishing the content itself? That makes no sense to me but I know a lot of publishers have attempted to sell that to the courts in order to charge for indexing their content.

[dwb68]

Perhaps true "at the time of the founding" ... however once the 14th amendment incorporated the first amendment against the states, likely congress also gained the authority to regulate state defamation laws.

[Davy C]

The 14th means they can regulate state defamation laws that violate the First Amendment. This isn't a 1A issue, though, because Section 230 is not required by 1A.

[CJColucci]

Judges don't get paid to argue things; lawyers do. Judges get paid to decide things. Judges arguing are usually advertising.

[David Nieporent]

He could be arguing in his spare time.

[M L]

I've said largely the same thing as this judge. It doesn't seem like Congress should have the constitutional power to just preempt vast fields of defamation law, which have always been a state realm, merely because advances in technology mean that most of our communications now might blink through some interstate wires at the speed of light. But I realize this doesn't line up with the maximalist approach of modern precedent.

[shawn_dude]

Is there any meaningful difference if the publication of defamatory content is shipped via trucks and sold in every state and territory in the nation or if it's transported via "wires at the speed of light" to every state and territory in the nation? If the publisher is in one state and the paying consumer in another, it's interstate commerce. With the internet, it gets even more complicated because the publisher's servers could be in multiple states and the server that meets your request could be any one of them at any time given a large number of variables.

[ReaderY]

Let’s look at things from a very traditional point of view.

Step 1. It’s widely accepted that Congress can prohibit the interstate transportation and sale of obscene articles. (I’m deliberately picking a traditional category.) And in doing so, it can create a federal definition of obscenity, prohibiting what’s federally obscene whether or not it’s obscene under state law.

Step 2. It’s not that far a step from that to conclude that Congress could forbid the interstate transportation and sale of libelous afticles, under a frderal definition of libel, regardless of state law.

Step 3. What one Congress can prohibit, another can (within some limits) protect and promote. So a liberal/libertarian Congress could pass an Interstate Commerce in Sex-Positive Articles Protection Act overriding state obscenity laws where the obscene/sex-positive articles involved are part of interstate commerce.

Step 4. And if it’s conceded it can do that, why couldn’t it a Interstate Rumor Industry Protection Act overriding state libel laws where the libelous/protected industry articles involved are part of interstate commerce.

Step 5. And isn’t that that pretty much what Section 230 is and does?

[Publius_2020]

From an historical standpoint, it seems that the First Amendment rendered this particular "scope of the commerce clause" issue moot from the outset of the Constitution. There wasn't cause to even think about whether Congress could regulate the interstate distribution of libel in newspapers under the commerce clause, because the First Amendment said 'no.' I would suggest this is one of the core functions of the First Amendment at its outset -- to guarantee that those issues remained ones of state jurisdiction. And thus, in the absence of the 14th, I suggest that the First Amendment is the far greater hurdle to Congress trying to overrule state libel law. Certainly, a far greater and more categorical limitation on Congress' power to regulate speech.

But the 14th Amendment changes that analysis, or so we believe. If the 14th Amendment provides First Amendment type rights against states, and the 14th Amendment has an enforcement clause for Congress, why doesn't Congress have the power to say that it can enforce free speech protections nationally (as 14th Amendment liberty interests) by overruling state defamation laws that otherwise restrict free speech rights? Isn't that the simpler backstop to Section 230?

[loki13]

Just a quick bit of analysis-

This is from a judge that just recently was appointed to the bench by Gov. DeSantis.

This is an issue that was already decided by the Florida Supreme Court- holding that the CDA preempts any state-law action inconsistent with its terms (Doe v. Amer. Online, Inc., 783 So. 2d 1010 (Fla. 2011)).

So this concurrence is, as far as I can tell, on an issue that was not presented to the appellate court, was already foreclosed by the precedent established by the higher court, and, to be honest, seems more like a bizarre misunderstanding of Erie that you might hear someone say as a 2L that it does anything remotely resembling an actual measured judicial opinion; of course, if this had been fully briefed by the parties (or even an issue) this wouldn't be necessary.

So truly bizarre.

[Noscitur a sociis]

So this concurrence ... was already foreclosed by the precedent established by the higher court

I don't find the argument very persuasive for the reasons everyone else has pointed out, but I don't think that's accurate. The concurrence agrees that Microsoft is protected by § 230 (which is what Doe says, but argues that the protection is unconstitutional, which I don't think Doe addressed.

[loki13]

No.

The Florida Supreme Court chose to EXPLICITLY adopt the reasoning of Zeran.

"Section 230 represents the approach of Congress to a problem of national and international dimension. The Supreme Court underscored this point in Reno v. ACLU, finding that the Internet allows "tens of millions of people to communicate with one another and to access vast amounts of information from around the world.[It] is `a unique and wholly new medium of worldwide human communication.'" ___ U.S. at ____, 117 S.Ct. at 2334 (citation omitted). Application of the canon invoked by Zeran here would significantly lessen Congress' power, derived from the Commerce Clause, to act in a field whose international character is apparent. While Congress allowed for the enforcement of "any State law that is consistent with [§ 230]," 47 U.S.C. § 230(d)(3), it is equally plain that Congress' desire to promote unfettered speech on the Internet must supersede conflicting common law causes of action. Section 230(d)(3) continues: "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." With respect to federal-state preemption, the Court has advised: "[W]hen Congress has `unmistakably ... ordained,' that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. The result is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977) (citations omitted). Here, Congress' command is explicitly stated. Its exercise of its commerce power is clear and counteracts the caution counseled by the interpretive canon favoring retention of common law principles."

Zeran, 129 F.3d 327 at 334.

Look, the opinion is terrible for all sorts of reasons, mostly because it's a stupid opinion (if the INTERNET is not within Congress's power to regulate via the commerce clause, nothing is). But at a minimum, if you're just some freelancin' jurist out there spitballin' your ideas that the PARTIES NEVER BRIEFED, then maybe at least check to see if the issues were at least partially addressed so that you can have a section explaining why anyone should be paying attention to this nonsense.

You know, the whole, "Yeah, I know that this opinion is crazy. I know that the Florida Supreme Court chose to explicitly incorporate the reasoning of another opinion that deal with this. I know that I am really arguing that Congress cannot preempt state law when it is trying to regulate the internet ... in a case involving non-Florida residents. I know that all of this insanely stupid, but at least I'm going to point out that it's stupid."

[Randal]

This feels like another example of Originalis Maximus where a (stupidly conservative) judge thinks "original public meaning" means "original public application," notices that the clause didn't apply to the Internet in the 1700s, and spins that fact as somehow insightful.

[jdgalt1]

I'm with the judge on this one. The fact that an interstate or even international network exists, whether it's made up of highways or telephone lines, does NOT mean that all communication using that network becomes "interstate commerce." The Federalist Papers, especially #45, spelt out exactly what is and is not interstate commerce.

The root of the problem is Wickard v. Filburn, an outrageous and transparent power grab by FDR which would never have been allowed by a SCOTUS faithful to its oath.