Reuters dà notizia delll’oggetto e offre pure un link al breve provvedimento (3 pagg).
In breve, il diritto di free speech non si applica agli enti privati nè c’è modo di far ritebnere Google intimamente connesso con un ente gorvernativo (non è State actor).
Il ns art. 2 Cost., invece, si applica pacificamente anche agli enti privati.
– I –
Probatestars.com ricorda (ma molti altri l’hanno fatto) e offre il link diretto ala sentenza del 5 circuito dell’appello n. 23-30445 del 8 settembre 2023stete of Missouri et c. Biden-Fauci e altri:
– To sum up, under the close nexus test, a private party’s conduct may
be state action if the government coerced or significantly encouraged;
– They met regularly, traded information and reports, and worked together on
a wide range of efforts. That working relationship was, at times, sweeping.
Still, those facts alone likely are not problematic from a First-Amendment
perspective. But, the relationship between the officials and the platforms
went beyond that. In their communications with the platforms, the officials
went beyond advocating for policies, Southworth, 529 U.S. at 229, or making
no-strings-attached requests to moderate content, Warren, 66 F.4th at 1209.
Their interaction was “something more.” Roberts, 742 F.2d at 228.
We start with coercion. On multiple occasions, the officials coerced
the platforms into direct action via urgent, uncompromising demands to
moderate content. Privately, the officials were not shy in their requests—
they asked the platforms to remove posts “ASAP” and accounts
“immediately,” and to “slow[] down” or “demote[]” content. In doing so,
the officials were persistent and angry. Cf. Bantam Books, 372 U.S. at 62–63.
When the platforms did not comply, officials followed up by asking why posts
were “still up,” stating (1) “how does something like [this] happen,” (2)
“what good is” flagging if it did not result in content moderation, (3) “I don’t
know why you guys can’t figure this out,” and (4) “you are hiding the ball,”
while demanding “assurances” that posts were being taken down. And, more
importantly, the officials threatened—both expressly and implicitly—to
retaliate against inaction. Officials threw out the prospect of legal reforms and
enforcement actions while subtly insinuating it would be in the platforms’
best interests to comply. As one official put it, “removing bad information”
is “one of the easy, low-bar things you guys [can] do to make people like
me”—that is, White House officials—“think you’re taking action.”, p. 43
– Finally, and “perhaps most important[ly],” we ask whether the
speaker “refers to adverse consequences that will follow if the recipient does
not accede to the request.” Warren, 66 F.4th at 1211 (citing Vullo, 49 F.4th
at 715). Explicit and subtle threats both work— “an official does not need to
say ‘or else’ if a threat is clear from the context.” Id. (citing Backpage.com,
807 F.3d at 234). Again, this factor is met.
Here, the officials made express threats and, at the very least, leaned
into the inherent authority of the President’s office. The officials made
inflammatory accusations, such as saying that the platforms were
“poison[ing]” the public, and “killing people.” The platforms were told they
needed to take greater responsibility and action. Then, they followed their
statements with threats of “fundamental reforms” like regulatory changes
and increased enforcement actions that would ensure the platforms were
“held accountable.” But, beyond express threats, there was always an
“unspoken ‘or else.’” Warren, 66 F.4th at 1212. After all, as the executive of
the Nation, the President wields awesome power. The officials were not shy
to allude to that understanding native to every American—when the
platforms faltered, the officials warned them that they were “[i]nternally . . . considering our options on what to do,” their “concern[s]
[were] shared at the highest (and I mean highest) levels of the [White
House],” and the “President has long been concerned about the power of
large social media platforms.” Unlike the letter in Warren, the language
deployed in the officials’ campaign reveals clear “plan[s] to punish” the
platforms if they did not surrender. Warren, 66 F.4th at 1209. Compare id.,
with Backpage.com, 807 F.3d at 237. Consequently, the four-factor test weighs
heavily in favor of finding the officials’ messages were coercive, not
persuasive, p. 49-50;
– Given all of the above, we are left only with the conclusion that the
officials’ statements were coercive. That conclusion tracks with the decisions
of other courts. After reviewing the four-factor test, it is apparent that the
officials’ messages could “reasonably be construed” as threats. Warren, 66
F.4th at 1208; Vullo, 49 F.4th at 716. Here, unlike in Warren, the officials’
“call[s] to action”—given the context and officials’ tone, the presence of
some authority, the platforms’ yielding responses, and the officials’ express
and implied references to adverse consequences—“directly suggest[ed] that
compliance was the only realistic option to avoid government sanction.” 66
F.4th at 1208. And, unlike O’Handley, the officials were not simply flagging
posts with “no strings attached,” 62 F.4th at 1158—they did much, much
more., p. 51;
– It is true that the officials have an interest in engaging with socialmedia
companies, including on issues such as misinformation and election
interference. But the government is not permitted to advance these interests
to the extent that it engages in viewpoint suppression. Because “[i]njunctions
protecting First Amendment freedoms are always in the public interest,” the
equities weigh in Plaintiffs’ favor. Opulent Life Church, 697 F.3d at 298
(quotation marks and citations omitted), p. 64
– II –
Altra decisione in simile fattispecie è quella dell’Appello del 6° circuito 14.09.2023, No. 22-3573, MARK CHANGIZI; MICHAEL P. SENGER; DANIEL KOTZIN v. Dipartimento della SAlute , segnalata da post del prof. Eric Goldman. Qui gli attori hanno scelto di agire contro la PA (ministero salute) invece che contro Twitter: ma si son complicati la vita, non essendo riusciti a provare il nesso causale (traceability) tra la condotta della prima e il danno allegato.
<<Traceability looks to whether a defendant’s actions have a causal connection to a plaintiff’s injuries. Lujan, 504 U.S. at 560. Causation need not be proximate, so an indirect injury can support standing. Lexmark Int’l, Inc., 572 U.S. at 134 n.6; see United States v. Students Challenging Regul. Agency Procs. (SCRAP), 412 U.S. 669, 688-89 (1973). But “‘an injury that results from [a] third party’s voluntary and independent actions’ does not establish traceability.” Turaani v. Wray, 988 F.3d 313, 317 (6th Cir. 2021) (quoting Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438, 457 (6th Cir. 2017)). Thus, a plaintiff must show that the defendant’s actions had a “determinative or coercive effect” on the third party such that the actions of the third party can be said to have been caused by the defendant. See Bennett v. Spear, 520 U.S. 154, 169 (1997); see also Turaani, 988 F.3d at 316 (explaining “[a]n indirect theory of traceability requires that the government cajole, coerce, [or] command”). That the defendant is the federal government does not change this assessment. See, e.g., Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 614 (1989) (“Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government.”).
By this metric, Plaintiffs’ complaint falls short. Plaintiffs maintain that the timing of Twitter’s actions related to the RFI and the July Advisory as well as the public statements made by the Surgeon General, Press Secretary, and President Biden all support an inference that Twitter’s disciplinary measures are state action attributable to HHS. But Plaintiffs fail to adduce facts demonstrating that the decisions Twitter made when it enforced its own COVID-19 policy did not result from its “broad and legitimate discretion” as an independent company. ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989)>>.
Un docente universitario mnoto per posizin pro colonialismo posta un tweet equivoco su una pagina web interattiva creata dal by the University of Oregon’s Division of Equity and Inclusion.
Il manager lo blocca,.
M;a per il tribuinale dell’oregon Case 3:22-cv-01181-HZ del 26.01.2023, Gilley v. Stabin , l’accont unviersitario è limited public forum e deve garantire il free speech. Il blocco eventuale deve essere “reasonable and viewpoint-neutral.”
<<Reviewing the three factors, the Court concludes that @UOEquity is a limited public
forum. First, the University did adopt guidelines governing posting on social media. The
pertinent part of the guidelines was posted online for anyone to view, and was also part of a
larger internal document. Larson Decl. I ¶¶ 3-5, Ex. 1 at 2; Larson Decl. II ¶¶ 5-7, Ex. 1 at 8-9.
The guidelines provide that comments within certain categories, including off-topic posts, can be
deleted, and that users who violate the guidelines can be blocked. Id. Plaintiff points out that
these guidelines appear more easily changed than a formal policy and that they have in fact been
changed since he filed suit. Pl. Supp. Br. 3, ECF 43. Plaintiff is correct that the guidelines have
been regularly altered; Defendants have acknowledged as much. Larson Decl. III ¶¶ 8-9, Exs. 2-
Case 3:22-cv-01181-HZ Document 57 Filed 01/26/23 Page 22 of 3623 – OPINION & ORDER
3 (versions of internal guidelines from 2019 and February 2021); Larson Decl. II ¶¶ 8-12, Exs. 1-
2 (versions of internal guidelines from October 2021 and October 2022). However, all of these
versions of the guidelines use almost identical wording in listing the categories of posts that can
be blocked or deleted. Larson Decl. II Ex. 1 at 8-9, Ex. 2 at 9-10; Larson Decl. III Ex. 2 at 8-9,
Ex. 3 at 3-4.
Plaintiff points to Kimsey v. City of Sammamish, 574 F. Supp. 3d 911, 919-920 (W.D.
Wash. 2021). Pl. Post-Hearing Mem. 5. In Kimsey, the district court held that a city’s Facebook
page was a designated public forum, in part because the city did not require prior approval before
allowing comments on the page. 574 F. Supp. 3d at 918, 920. The Court respectfully disagrees
with this analysis. In Garnier, the Ninth Circuit focused on whether the government defendants
had “established any rules of etiquette or decorum regulating how the public was to interact with
their social media account.” 41 F.4th at 1165. Garnier did not suggest that requiring prior
approval for comments was necessary to create a limited public forum. It also recognized that
“analogies between physical public fora and the virtual public fora of the present are sometimes
imperfect, and courts applying First Amendment protections to virtual spaces must be mindful of
the nuances of how those online fora function in practice.” Id. at 1185. This is one such nuance.
The Court doubts that requiring prior approval for every post on @UOEquity is a feasible
method of content restriction, and Plaintiff points to no evidence suggesting that it is.
Second, the Court has limited information on the extent to which the guidelines are
generally enforced. At the hearing, Plaintiff argued that @UOEquity is a designated public
forum because the University has failed to consistently enforce the social media guidelines.
There is some evidence to support this contention. For instance, while Plaintiff was blocked for
posting “all men are created equal” in response to the Racism Interruptor prompt, another Twitter user was not blocked for posting “all men are created equal” in response to the same
prompt several days later. Larson Decl. III ¶¶ 6-7, Ex. 1 at 4. Only three users have been blocked
since 2017. Id. ¶ 5. This could point to limited enforcement or to a paucity of posts that violate
the guidelines. Defendant stabin testified at the hearing that @UOEquity was a relatively lowtraffic account. This is supported by the data: since 2017, there have been a combined 2,558
replies and retweets on the account by other users. Larson Decl. III ¶ 4. In an email, Defendant
stated that she rarely blocked people and barely knew how. Kolde Second Supp. Decl. Ex. 4.
However, Plaintiff has not provided enough evidence of users who arguably should have been
blocked under the guidelines. The Court does not know why the other two blocked users were
blocked. The Court does not have enough evidence to conclude that the University is not
consistently following the guidelines in managing the @UOEquity account. Mindful that the
Supreme Court has required an affirmative act to create a designated public forum, the Court
declines to conclude on the evidence before it that the University has failed in enforcing the
social media guidelines to a degree that justifies finding such an affirmative act.
Third, a Twitter page is a forum designed for expressive activities. Garnier, 41 F.4th
1178 (“Social media websites—Facebook and Twitter in particular—are fora inherently
compatible with expressive activity.”). Defendant stabin testified at the hearing that the Racism
Interruptor prompts she posted were intended to serve as tools for individuals to use when they
encountered discrimination in their daily lives, rather than to promote discussion on the Twitter
page as such. Ultimately, however, the expressive activity on the Twitter page is not “incidental”
to its operations, unlike ads on metro buses whose primary function from the government’s
perspective is to generate revenue. Seattle Mideast Awareness, 781 F.3d at 497.
This case falls between Garnier and Seattle Mideast Awareness, and the Court concludes
that @UOEquity is a limited public forum. The University adopted and published guidelines
restricting the content that can be posted on the page and permitting administrators to block users
who violate them. Those guidelines have been reinforced to faculty and staff who manage the accounts.
The degree of enforcement appears less rigorous than in Seattle Mideast Awareness, but the nature of the forum is different, and the Court declines to find on the record before it that the University has abdicated responsibility for enforcement.
The Court concludes that the University did not affirmatively open @UOEquity as a designated public forum.
Therefore, any restrictions on speech in @UOEquity must be reasonable and viewpoint-neutral. Hopper, 241 F.3d at 1075.
The Court proceeds to evaluate the likelihood of success on Plaintiff’s claims for
relief against this standard>>
(notizia e link alla sentenza dal blog del prof Eric Goldman)
Altra decisione nella lite Trump e altri c. Twitter (Distr. Nord della California , 6 maggio 2022, case 3:21-cv-08378-JD ) prodotta dalla nota censura operata da Tw. contro il primo.
Anche qui va male all’ex presidente: Tw. no è State ACtor in alcun modo e dunque egli non può appellarsi al diritto di parola del Primo Emendamento.
Notare l’inziale understatement del collegio: <<Plaintiffs are not starting from a position of strength. Twitter is a private company, and “the First Amendment applies only to governmental abridgements of speech, and not to alleged abridgements by private companies>>.
<<Plaintiffs’ only hope of stating a First Amendment claim is to plausibly allege that Twitter was in effect operating as the government under the “state-action doctrine.” This doctrine provides that, in some situations, “governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints>>.
<< The salient question under the state action doctrine is whether “the conduct allegedly causing the deprivation of a federal right” is “fairly attributable to the State.” >>
Si pensi che, circa la prova della state action nel caso specifico , <<in plaintiffs’ view, these account actions were the result of coercion by members of Congress affiliated with the Democratic Party>>!!
E’ pure rigettata la domadna di esame della costituzionalità del § 230 CDA perchè manca la injury richiesta allo scopo
Il distretto nord della California con provv. 29.04.2022, No. C 21-09818 WHA, Berenson v. Twitter, decide la domanda giudiziale allegante un illegittimo blocco dell’account per post fuorvianti (misleading) dopo la nuova Twitter policy five-strike in tema di covid 19.
E la rigetta, riconoscendo il safe harbour ex § 230.c.2.a del CDA.
A nulla valgono le allegazioni attoree intorno alla mancanza di buona fede in Twitter: << With the exception of the claims for breach of contract and promissory estoppel, all claims in this action are barred by 47 U.S.C. Section 230(c)(2)(A), which provides, “No provider or user of an interactive computer service shall be held liable on account of — any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” For an internet platform like Twitter, Section 230 precludes liability for removing content and preventing content from being posted that the platform finds would cause its users harm, such as misinformation regarding COVID-19. Plaintiff’s allegations regarding the leadup to his account suspension do not provide a sufficient factual underpinning for his conclusion Twitter lacked good faith. Twitter constructed a robust five-strike COVID-19 misinformation policy and, even if it applied those strikes in error, that alone would not show bad faith. Rather, the allegations are consistent with Twitter’s good faith effort to respond to clearly objectionable content posted by users on its platform. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1105 (9th Cir. 2009); Domen v. Vimeo, Inc., 433 F. Supp. 3d 592, 604 (S.D.N.Y. 2020) (Judge Stewart D. Aaron)>>.
Invece non rientrano nella citata esimente (quindi la causa prosegue su quelle) le domande basate su violazione contrattuale e promissory estoppel.
La domanda basata sulla vioalzione del diritto di parola è pure respinta per il solito motivo della mancanza di state action, essendo Tw. un ente privato: <<Aside from Section 230, plaintiff fails to even state a First Amendment claim. The free speech clause only prohibits government abridgement of speech — plaintiff concedes Twitter is a private company (Compl. ¶15). Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). Twitter’s actions here, moreover, do not constitute state action under the joint action test because the combination of (1) the shift in Twitter’s enforcement position, and (2) general cajoling from various federal officials regarding misinformation on social media platforms do not plausibly assert Twitter conspired or was otherwise a willful participant in government action. See Heineke v. Santa Clara Univ., 965 F.3d 1009, 1014 (9th Cir. 2020). For the same reasons, plaintiff has not alleged state action under the governmental nexus test either, which is generally subsumed by the joint action test. Naoko Ohno v. Yuko Yasuma, 723 F.3d 984, 995 n.13 (9th Cir. 2013). Twitter “may be a paradigmatic public square on the Internet, but it is not transformed into a state actor solely by providing a forum for speech.” Prager Univ. v. Google LLC, 951 F.3d 991, 997 (9th Cir. 2020) (cleaned up, quotation omitted). >>
(notizia e link alla sentenza dal blog del prof. Eric goldman)
Un avvocato statunitense, divenuto acceso sostenitore di Trump, si vede etichettati in modo sfavolrevole (labeled) suoi post su Twitter e poi sospeso l’account in via definitiva.
Agisce allora contro Twitter (ed altri organi pubblici USA di alto livello con cui avrebbe commesso conspiracy) facendo valere il diritto di parola/free speech.
L’ovvia eccezione di inesistenza di ogni state action nella condotta di Twitter viene però accolta.
Viene respinta pure la qualifica di <joint action> Stato/Twitter: il relativo test cheide “whether the state has `so far insinuated itself into a position of interdependence with [the private entity] that it must be recognized as a joint participant in the challenged activity“, sub III.A.1 (qualifica esaminata in dettaglio).
Si tratta del Tribunale del Nord California, 10.01.2022, Case No. 21-cv-07063-CRB. , ROGAN O’HANDLEY v. ALEX PADILLA, et al., Defendants.
(notizia e link alla sentenza dal blog di Eric Goldman)
Techdirt.com pubblica l’atto di citazione di Trump 7 luglio 2021 contro Facebook (Fb) che nei mesi scorsi lo bannò. E’ una class action.
Il link diretto è qui .
L’atto è interessante e qui ricordo solo alcuni punti sull’annosa questione del rapporto social networks/primo emendamento.
Nella introduction c’è la sintesi di tutta l’allegazione, pp. 1-4.
A p. 6 ss trovi descrizione del funzionamneot di Fb e dei social: interessa spt. l’allegazione di coordinamento tra Fb e Tw, § 34 e la piattaforma CENTRA per il monitoraggio degli utenti completo cioè anche circa la loro attività su altre piattaforme , § 36 ss. .
Alle parti III-IV-V l’allegazione sul coordinamenot (anche forzoso, sub III, § 56) tra Stato Federale e piattaforme. Il che vale a preparare il punto centrale seguente: l’azione di Fb costituisce <State action> e dunque non può censurare il free speech:
<<In censoring the specific speech at issue in this lawsuit and deplatforming Plaintiff, Defendants were acting in concert with federal officials, including officials at the CDC and the Biden transition team. 151.As such, Defendants’ censorship activities amount to state action. 152.Defendants’ censoring the Plaintiff’s Facebook account, as well as those Putative Class Members, violates the First Amendment to the United States Constitution because it eliminates the Plaintiffs and Class Member’s participation in a public forum and the right to communicate to others their content and point of view. 153.Defendants’ censoring of the Plaintiff and Putative Class Members from their Facebook accounts violates the First Amendment because it imposes viewpoint and content-based restrictions on the Plaintiffs’ and Putative Class Members’ access to information, views, and content otherwise available to the general public. 154.Defendants’ censoring of the Plaintiff and Putative Class Members violates the First Amendment because it imposes a prior restraint on free speech and has a chilling effect on social media Users and non-Users alike. 155.Defendants’ blocking of the Individual and Class Plaintiffs from their Facebook accounts violates the First Amendment because it imposes a viewpoint and content-based restriction on the Plaintiff and Putative Class Members’ ability to petition the government for redress of grievances. 156.Defendants’ censorship of the Plaintiff and Putative Class Members from their Facebook accounts violates the First Amendment because it imposes a viewpoint and content-based restriction on their ability to speak and the public’s right to hear and respond. 157.Defendants’ blocking the Plaintiff and Putative Class Members from their Facebook accounts violates their First Amendment rights to free speech. 158.Defendants’ censoring of Plaintiff by banning Plaintiff from his Facebook account while exercising his free speech as President of the United States was an egregious violation of the First Amendment.>> (al § 159 ss sul ruolo di Zuckerberg personalmente).
Ne segue che il safe harbour ex § 230 CDA è incostituzionale:
<<167.Congress cannot lawfully induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Norwood v. Harrison, 413 US 455, 465 (1973). 168.Section 230(c)(2) is therefore unconstitutional on its face, and Section 230(c)(1) is likewise unconstitutional insofar as it has interpreted to immunize social media companies for action they take to censor constitutionally protected speech. 169.Section 230(c)(2) on its face, as well as Section 230(c)(1) when interpreted as described above, are also subject to heightened First Amendment scrutiny as content- and viewpoint-based regulations authorizing and encouraging large social media companies to censor constitutionally protected speech on the basis of its supposedly objectionable content and viewpoint. See Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996).170.Such heightened scrutiny cannot be satisfied here because Section 230 is not narrowly tailored, but rather a blank check issued to private companies holding unprecedented power over the content of public discourse to censor constitutionally protected speech with impunity, resulting in a grave threat to the freedom of expression and to democracy itself; because the word “objectionable” in Section 230 is so ill-defined, vague and capacious that it results in systematic viewpoint-based censorship of political speech, rather than merely the protection of children from obscene or sexually explicit speech as was its original intent; because Section 230 purports to immunize social media companies for censoring speech on the basis of viewpoint, not merely content; because Section 230 has turned a handful of private behemoth companies into “ministries of truth” and into the arbiters of what information and viewpoints can and cannot be uttered or heard by hundreds of millions of Americans; and because the legitimate interests behind Section 230 could have been served through far less speech-restrictive measures. 171.Accordingly, Plaintiff, on behalf of himself and the Class, seeks a declaration that Section 230(c)(1) and (c)(2) are unconstitutional insofar as they purport to immunize from liability social media companies and other Internet platforms for actions they take to censor constitutionally protected speech>>.
Come annunciato, ha fatto partire anche analoghe azioni verso Twitter e verso Google/Youtube e rispettivi amministratori delegati (rispettivi link offerti da www.theverge.com) .
La corte del distretto nord della california, s. Josè division, 25.06.2021, KIMBERLY CARLESTE NEWMAN, e altri c. Google e altri, case No.20–CV–04011–LHK, rigetta varie domande contrattuali di utenti contro Youtube, basate su pretese discrminazioni razziali.
Gli attori, gerenti canali su Youtube , ritengono di essere stati discriminati in vari modi: filtraggi ingiustificati, solo per la loro provenienza razziale, nella Restricted Mode; riduzione o impedimento delle chance di monetizzazine, non venendo agganciati ad advertisment; shadow banning e altre pratiche, ad es. qualificando i video come soggetti a Restricted Mode ( dettagli a p. 2-4).
La domanda di violazione ex sec- 1981 del 42 US CODE (Equal rights under the law: normativa antidiscriminatoria) è rigettata per assenza di prova dellelemenot intenzionaleò, p. 9 ss.
Ma qui interessa spt. il punto del Primo Ementamento, p. 15 ss: la condotta di Y,. non è state action nè tale diventa per la protezione di legge offerta dal safe harbour ex § 230 CDA (tesi alquanto astrusa, invero).
(notizia e link alla sentenza tratta dal blog di Eric Goldman)
La SOUTHERN DISTRICT OF NEW YORK, 25.06.2021, Brock c. Facebook e altri, caso 1:20-cv-07513-LJL , decide un’azione basata su presunta violazione del Primo Emendamento (free speech verso lo Stato) e di altre disposizioni, a seguito di reiterate censure di post da parte di Facebook (Fb)
Qui interessa la -ormai annosa- questione del se il social network sia sottoposto al Primo Emendamento (nei confronti dei suoi utenti).
La sentenza segue l’orientameno dominante per cui non lo è, non potendo la sua condotta essere qualificdata come state action. Non ci sono analisi particolarmente interssanti.
Resta curioso che la giurisprudenza continua a non ammettere un’intepretazione analogico/evolutiva del tenore letterale del Primo Emendamento, nonostante il rischio di sua violazione oggi non provenga più dallo Stato ma da Poteri Privati.
La corte ricorda che <<The actions of a private corporation only constitute stateaction “(i) when the private entity performs a traditional, exclusive public function; (ii) when the government compels the private entity to take a particular action or (iii) when the government acts jointly with the privateentity.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (internal quotations and citations omitted). Notably, “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Id.at 1930. Therefore, private companies which maintain public online forums may “exercise editorial discretion over the speech and speakersin [such] forum[s].” Id.>>
Ricorda poi che, sebbene il 2° circuito non abbia affrontato <<the question of whether a social media provider is a state actor for First Amendment purposes, other circuits that have confronted the issue have unanimously held platforms like Facebook are not state actors. For example, the D.C.Circuit recently held that Facebook, Google, Twitter,and Apple were not state actors; the court then affirmed the dismissal of First Amendment claims against the companies. Freedom Watch, Inc. v. Google Inc., 816 F. App’x 497, 499(D.C. Cir. 2020)(notingthe mere provision of “an important forum for speech” did not transform online platforms into state actors). In a similar case involving YouTube, the Ninth Circuit held that “the state action doctrine preclude[d] constitutional scrutinyof YouTube’s content moderation pursuant to its Terms of Service and Community Guidelines.” Prager Univ.v. Google LLC, 951 F.3d 991, 999 (9th Cir.2020). Othercourts throughout the country have also declined to treat Facebook as a state actor and have upheld the company’s ability to remove content. See, e.g., Ebeid v. Facebook, Inc., 2019 WL 2059662 at *6 (N.D. Cal. May 9, 2019); Zimmerman v. Facebook, Inc., 2020 WL 5877863 at *2 (N.D. Cal. Oct. 2, 2020).>>
Per l’attore, lo status di “state actor” è “immaterial” <<because Facebook is performing a function “traditionally” performed by the government.Dkt. No. 33 ¶¶ 8–12. The relevant function that Facebook providesis an online platform for speech. Plaintiff also analogizes Facebook’s provision of an online messaging service to the government’s traditional provision of mail services through the United States Postal Service. Id.¶¶ 10–11>>.
Ma ciò non basta: <<[i]t is ‘not enough’ that the relevant function is something that a government has ‘exercised . . .in the past, or still does’ or ‘that the function serves the public good.’” Prager Univ., 951 F.3d at 998 (quotingHalleck, 139 S. Ct. at 1928–29). The government must have performed the function in question exclusively as well. Halleck, 139 S. Ct. at 1929. Facilitating the exchange of communicationor hosting a platformfor discussionare not activities “that onlygovernmental entities have traditionally performed.” Prager Univ., 951 F.3d at 998 (quotingHalleck, 139 S.Ct. at 1930). Thus, Plaintiff may not “avoid the state action question” by claiming that Facebook is serving a public function. Id. at99>>.
Poi c’è l’altro argomento: che FB costituisce una “new town square”.
Ma anche questo è stato rigettato in passato da altre corti (v. spt. Prager University) , cui il giudice si adegua: <<see e.g.,Zimmerman, 2020 WL 5877863,at *2 (holdingthe operation of a “digital town square” didnot make Facebook a state actor).The Supreme Court held in Marsh v. State of Alabama, 326 U.S. 501, 506 (1946)that citizens in a company–owned town were guaranteed constitutional protections against the deprivation of their First Amendment rights by the company, but courts have refused to extend Marsh’sholding to social media cases. See, e.g.,Prager Univ., 951 F.3d at 998 (noting Marsh was “unequivocally confined. . . to the unique and rare context of company town[s] and other situations where the private actor perform[s] the full spectrum of municipal powers”) (internal citations and quotation marks omitted). Finally, Facebook’s status as a publicly held company does not make the company a state actor for the purposes of constitutional violations. See Freedom Watch, 816 F. App’x at 499 (dismissing First Amendment claims against Google, Facebook, Twitter, and Apple, which are all publicly traded companies)>>.
E’ curioso che l’attore avesse citato pure Zuckerberg e altri dirigenti di Fb personalmente. La relativa domanda è stata però rigettata <<in the absence of anyallegations connecting Zuckerberg or Sandberg to Plaintiff’s claims>>
Nell’impugnazione della rimozione fatta da Trump su suoi follower Twitter, la Suprema Corte USA ha dismesso il caso, essendo nel frattempo cambiato il Presidente (perchè mai? per cessata materia del contendere?).
Ma ha ritenuto di esprimere una concurring opinion il giudice Thomas, 05 aprile 2021, caso n° 20-197 (seconda parte del documento linkato).
Egli dubita della applicabilità del Primo Emendamento all’impedimento del diritto di parola, trattandosi di parte privata (nel caso di azione verso Twitter, naturalmente), ad es. p. 3 e 11.
Propone una doppia possibilità regolatoria per le grandi piattaforme: common carrier, p. 4 o public accomodation, p. 6
Infine ipotizza l’incostituzionalità del safe harbour ex § 230 CDA perchè reprimerebbe le leggi statali che proteggono il free spech dalla censura privata: nota 5 p. 11.
Qui intendo solo riportare le sue parole circa gli argomenti, che talora si sentono, per cui non è obbligatorio usare i servizi della piattarforme (potendo usare quelli tradizionali, sottinteso), per cui sarebbe errata l’analogia con un common carrier:
<<It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is>>, p. 8.
Ben detto, giudice Thomas!