NetChoice Lawsuits

The 4th Circuit U.S. Court of Appeals should reverse a district court decision supporting a state tax on digital ads, urged the U.S. Chamber of Commerce and two tech industry groups in a court brief Thursday. The Chamber, NetChoice and the Computer & Communications Industry Association are appealing a July decision of the U.S. District Court for Maryland dismissing the litigation (see 2407050012). The case (docket 22-2275) concerns a Maryland law that imposes a tax on digital ads and bars companies from directly passing along the additional cost to purchasers of digital advertising through separate fees or surcharges. The matter went back and forth between the two courts previously (see 2407050012). "If the power to tax truly is the power to destroy," wrote the industry challengers, "then it is most pernicious when the State is allowed to hide that it is exercising the power in the first place.” The state tax will force businesses to raise prices, but Maryland included a pass-through ban to prohibit companies from disclosing to customers that a state tax is the reason, they said. "Appellants’ members wish to convey to their customers that prices are rising in Maryland because their elected representatives have enacted this tax, and not because digital advertising companies are seeking additional profit.” However, "evidently wishing to avoid political responsibility for rising prices attributable to their ill-conceived tax policy," state lawmakers imposed a "presumptively unlawful content-based speech ban.” Maryland’s response brief is due Jan. 10.

The tech industry renewed its fight against a Florida social media law in district court Friday following a remand from the U.S. Supreme Court (see 2407010053). The law’s challenged provisions are “facially unconstitutional,” NetChoice and the Computer & Communications Industry Association said in an amended complaint at the U.S. District Court for Northern Florida (case 4:21-cv-00220). The 2021 Florida law “seeks to punish select private parties for exercising editorial discretion in ways the state disfavors,” said the tech groups’ amended complaint. While Florida had defended the law “on the theory that websites like Facebook and YouTube do not engage in First Amendment activity when they make decisions about what content to disseminate and how to arrange and organize it,” the Supreme Court “laid that argument to rest,” they said. While the state may criticize websites’ moderation decisions, “the First Amendment prohibits the state from overriding those editorial judgments and substituting its own,” NetChoice and CCIA said. “Florida has identified no other interest that could justify [the social media law], and the provisions of the law at issue here are not remotely tailored to any interest it might come up with.”

NetChoice and the Computer & Communications Industry Association (CCIA) asked a federal court for a preliminary injunction of a Florida law that restricts kids’ access to social media and pornography websites. The groups filed the motion Tuesday at the U.S. District Court for Northern Florida, following up on a complaint they submitted Monday (see 2410280021). Granting the motion would stop the Florida law from taking effect Jan. 1. The court should rule on a preliminary injunction before that date because the law “will have a substantial impact upon the First Amendment rights of members of CCIA and NetChoice, and upon the rights of users of those members’ services,” wrote the plaintiffs, who also requested oral argument before a decision is made. The law requires parental consent before children ages 14 and 15 can use social media, while prohibiting parents from overriding a ban on children 13 and younger.

Florida “cannot begin to show that its draconian access restrictions are necessary to advance any legitimate interest it may assert” to protect children, NetChoice and the Computer and Communications Industry Association (CCIA) wrote in a complaint Monday at the U.S. District Court for Northern Florida. The tech industry groups filed a First Amendment challenge against a Florida law set to take effect Jan. 1.

NetChoice’s challenge of Utah’s Minor Protection in Social Media Act will be stayed at the U.S. District Court for Utah while the 10th U.S. Circuit Court of Appeals considers an appeal, the district court’s Magistrate Judge Cecilia Romero ordered Friday in case 2:23-cv-000911. The district court last month granted NetChoice’s request for preliminary injunction against the state’s social media age-verification law. Utah Attorney General Sean Reyes (R) and Katherine Hass, the state's Department of Commerce Consumer Protection Division director, appealed earlier this month (see 2410110031).

Mississippi’s social media age-verification law doesn’t violate the First Amendment because it regulates online conduct, not speech, Mississippi Attorney General Lynn Fitch (R) argued Thursday before the 5th U.S. Circuit Court of Appeals (docket 24-60341) (see 2409260053). NetChoice won a preliminary injunction against the law from the U.S. District Court for Southern Mississippi in July (see [Ref:2407160038). Fitch is appealing to lift the injunction. Mississippi argued Thursday that the district court failed to fully review all applications of HB-1126 through a “demanding facial analysis.” The new law requires “commercially reasonable” efforts on age verification, parental consent and harm-mitigation strategies, said Fitch in her reply brief: “Those requirements pose no facial First Amendment problem.” She argued the law applies to interactive functions on platforms and harmful conduct. “That focus does not regulate speech.”

Utah is appealing a preliminary injunction against the state’s social media age-verification law, Attorney General Sean Reyes (R) said in a Thursday filing with the U.S. District Court of Utah (docket 2:23-cv-00911). NetChoice won an injunction against SB-194 in September on First Amendment grounds (see 2409110025). Reyes and Katherine Hass, the state's Department of Commerce Consumer Protection Division director, are appealing to the 10th U.S. Circuit Court of Appeals.

The U.S. District Court for Southern Ohio set oral argument for March 12 on summary judgment motions in NetChoice’s challenge of Ohio’s social media parental notification law. The argument starts at 9:30 a.m. in Columbus, with 20 minutes for each side, including up to five minutes for rebuttals, Judge Algenon Marbley ordered Wednesday in case 2:24-cv-00047. NetChoice’s motion seeks to permanently block the statute on constitutional grounds, while the defendant, Ohio Attorney General Dave Yost (R), argues the law is "valid" and enforceable.

Breaking up Google should be considered a potential remedy to stop the company from self-preferencing on Chrome, Android and the Play Store, DOJ said Tuesday, filing a proposed remedy framework with the U.S. District Court for the District of Columbia (see 2408050052) (docket 1:20-cv-03010-APM). Google and tech associations fired back the next day, calling DOJ’s framework a radical departure from the facts in the case.

The 3rd U.S. Circuit Court of Appeals should grant TikTok's request for a full-court review of a three-judge panel’s decision that Section 230 doesn’t protect its algorithmic recommendations (see 2408280014) (docket 22-3061), tech associations said in an amicus brief filed Tuesday. Signees included CTA, the Computer & Communications Industry Association, NetChoice, TechNet and the Software & Information Industry Association. Chamber of Progress, Engine and the Interactive Advertising Bureau also signed. TechFreedom signed a separate amicus brief supporting TikTok. The three-judge panel remanded a district court decision dismissing a lawsuit from the mother of a 10-year-old TikTok user who unintentionally hanged herself after watching a “Blackout Challenge” video on the platform. The platform can’t claim Communications Decency Act Section 230 immunity from liability when its content harms users, the panel found. That decision threatens the internet “as we know it,” the associations said in their filing: It jeopardizes platforms’ ability to “disseminate user-created speech and the public’s ability to communication online.” TechFreedom Appellate Litigation Director Corbin Barthold said the panel wrongly concluded that “because recommendations are a website’s own First Amendment-protected expression, they fall outside Section 230’s liability shield. A website’s decision simply to host a third party’s speech at all is also First Amendment-protected expression. By the panel’s misguided logic, Section 230’s key provision -- Section 230(c)(1) -- is a nullity; it protects nothing.”