How the Supreme Court’s OT 2022 Term (So Far) Might Affect Tech
The Supreme Court’s OT 2022 docket is shaping up to be another significant term. Although the Court will continue to take up more petitions in the coming months, its current docket is already poised to have significant impacts on the technology industry. Below, we discuss how the Court’s decisions could impact (1) section 230 of the Communications Decency Act, (2) the ability to mount constitutional challenges against tech regulators, and (3) states’ ability to regulate technologies beyond their borders. We also discuss the social media regulation cases from Texas and Florida that may make it to the Court this term.
The Scope of Section 230
On Monday, October 3, the Supreme Court granted certiorari in Gonzalez v. Google. The cert petition asks the Court to address the scope of section 230 – a provision which “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” In other words, websites are typically not liable for content posted by their users.
The petitioners in Gonzalez ask the Court to narrow the scope of immunity granted by section 230. They contend that interactive computer services are not covered by section 230 when these services recommend third-party content to users. In the petitioners’ view, these recommendations are materially different than merely hosting third-party content. But the respondents – who prevailed at the Ninth Circuit – contend that recommending content is a traditional publishing function within the scope of immunity.
The Court’s resolution of this question may have significant impacts for the internet. Many platforms enhance their users’ experiences by curating content through recommendations. But if the petitioners prevail, the Court’s decision could significantly increase the risk of liability for online services when they direct users to content posted by third parties.
Holding Accountable Regulators Violating the Constitution
The Supreme Court has taken up two cases that concern the procedures parties must follow before challenging the constitutionality of agency action: SEC v. Cochran and Axon Enterprise v. FTC. The cases concern the ability of the Securities and Exchange Commission and the Federal Trade Commission, respectively, to funnel constitutional challenges through administrative processes. In both cases, the agencies argue that statutes conferring jurisdiction on federal courts to review their administrative orders implicitly strip federal courts of jurisdiction to consider constitutional challenges prior to the issuance of such orders. The challengers argue against divining such a broad command by implication and highlight the unfairness of subjecting parties to years of administrative procedures that are constitutionally infirm.
The Court’s resolution of this case will affect the ability of companies to obtain recourse when tech regulators violate the Constitution. The FTC in particular has become the nation’s primary enforcer of privacy and data security. That agency’s national privacy rulemaking and Congress’s pending federal privacy legislation suggest that the FTC will continue to bring enforcement actions in this space. If these actions violate parties’ due process rights, the First Amendment, or other provisions of the Constitution, the Court’s decisions in Cochran and Axon Enterprise will determine if parties must nevertheless be subjected to years of burdensome administrative processes.
States’ Power to Regulate Beyond Their Borders
The Supreme Court will also consider the scope of state regulatory authority this term in National Pork Producers Council v. Ross. Ross concerns a California law that regulates how pork is produced when it is sold in California. But, because California imports 99.87% of its pork, the law’s predominant effect is on agricultural practices in other states. The petitioners – joined by a slew of amici, including 26 states – argue that the California law regulates interstate commerce and thus violates the dormant Commerce Clause.
While Ross is about agriculture, the Court’s decision in the case could have impacts on state-level technology regulations. States across the country have enacted – or are considering enacting – laws regulating consumer privacy. California just last month passed a law imposing broad requirements on businesses offering online services that are likely to be accessed by children. Other states are considering laws to regulate artificial intelligence. Because these kinds of laws affect digital services that originate from, and serve customers in, other states – such as webpages – state laws are increasingly having an impact beyond a state’s own borders. The Court’s decision in Ross may implicate the authority of states to continue to engage in these efforts.
States’ Power to Regulate Social Media (Maybe)
The state of Florida filed a petition for certiorari in Moody v. NetChoice asking the Supreme Court to consider whether the First Amendment precludes state regulation of the content social media services host. This petition comes on the heels of conflicting decisions from the Fifth and Eleventh circuits on social media laws from Texas and Florida respectively. Although the Supreme Court has not yet decided to take up either case, it may do so, given the circuit split. If it does, the Court may ultimately lay down the ground rules for the First Amendment in the digital age.
Given the stakes of these cases, technology companies – and their users – should keep a close eye on the Court in the coming months.
 Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); accord 47 U.S.C. § 230(c)(1).