I previously blogged about a cert petition I helped to prepare regarding the scope of section 230 immunity. Last week, the final briefing was submitted to the Supreme Court. In my view, the briefing makes clear that the Court should grant cert on the important issue of whether section 230 immunizes Twitter’s knowing possession and distribution of child pornography.

The issue arises through a provision in the Communications Decency Act, which encourages “Good Samaritan” acts to keep objectionable content off the internet. 47 U.S.C. §230(c). The Act states internet platforms are not liable for “good faith” acts to remove such content. Section §230(c)(2)(A). It clarifies that platforms may exercise that editorial control without being “treated as the publisher or speaker.” Section 230(c)(1).

In the case at hand, the Ninth Circuit construed the Act to immunize an internet platform’s knowing and deliberate decision to keep “child pornography” on the internet—a federal crime so damaging that Congress expressly allows victims to seek civil penalties. (The images are better described as “child sex abuse materials, or CSAM, but we have followed the current legal nomenclature.) In response to repeated alerts that child pornography depicting the minor petitioners (John Doe 1 and John Doe 2) was on its platform, Twitter asked for John Doe 1’s ID—verifying that he was a minor. Twitter, in its own words, “reviewed the content” showing coerced sex acts by minors. But Twitter then decided “no action will be taken.” The video proliferated—and Twitter profited—until a Department of Homeland Security official intervened.

The victims sued. Twitter claimed immunity. The Ninth Circuit agreed that Section 230 precludes federal civil penalties for that knowing sexual exploitation of children. And our cert petition presented the question of whether section 230’s Good Samaritan immunity applies to the knowing possession and distribution of child pornography.

Twitter has now responded to our petition. In its brief in opposition, Twitter characterizes the case as involving its decision of whether to screen such content:

Child pornography is the most serious category of harmful content that platforms encounter—a fact no one disputes and Twitter does not minimize. But that is a difference of degree, not of legal kind. Courts have uniformly applied Section 230(c)(1) to bar claims that seek to treat a website as the publisher of a third party’s obscenity, illegal pornography, or other arguably criminal content. See, e.g., Force v. Facebook, 934 F.3d at 59 (content that encouraged terrorism); Barnes v. Yahoo!, Inc., 570 F.3d at 1098 (nonconsensual nude images);  Dyroff v. Ultimate Software Grp., Inc., 934 F.3d at 1095 (content facilitating illegal drug sales). Indeed, a foundational premise of Section 230 is that websites hosting third-party content cannot be charged with screening all such content; to hold that offending content of any particular stripe  disables the statutory immunity would contravene that premise and expose websites to potential liability simply because their screening has been imperfect in some way.

Our reply argues strenuously that Twitter is mischaracterizing what it did—which was to distribute child pornography, even after it had specifically identified the material as child pornography and knew that the materials were being downloaded by tens of thousands of its customers:

Twitter never contests those knowing criminal acts. Instead, Twitter restates the questions presented, reframing this petition as just another petition about “not removing more quickly allegedly unlawful third-party conduct.” Twitter reduces the petition to a dispute about how “swiftly” it acted. Twitter even claims the petition is a poor vehicle because its criminal wrongdoing did no harm.

Try as it might to paint this petition as one about some unknowing publisher, Twitter acted knowingly and deliberately. Those criminal acts led John Doe 1 to consider ending his life. Those criminal acts prompted a DHS official to intercede. Petitioners are still suffering from them. …

This petition is the straightforward vehicle to address the outermost limit of § 230  immunity. This case is not about what steps some internet company should take to monitor content that it is unwittingly hosting. It is about the company’s own knowing and deliberate acts. Do federal laws prohibit Twitter from knowingly possessing, distributing, and profiting from child pornography—like everyone else? Or does § 230 put Twitter above the law?

Our cert petition was strongly supported by three excellent amicus briefs. Senator Josh Hawley filed a brief arguing that this case requires Supreme Court review:

Nothing in the text, structure, or history of the Communications Decency Act’s Section 230 shields internet platforms that knowingly possess and distribute child pornography. Congress drafted Section 230 to avoid publisher liability without upending distributor liability, which had its own rich common law backdrop. The Good Samaritan carveout in Section 230(c) is narrow and unrelated to any facts in this case. The Ninth Circuit’s  holding to the contrary represents the most extreme extension yet of Section 230 immunity in the statute’s history, and is a perfect vehicle for this Court to rein in the statute’s purview to the four corners of its text.

The National Center for Missing and Exploited Children (NCMEC) filed an amicus brief arguing the Ninth Circuit’s decision will harm efforts to combat emerging threats to children online:

The Ninth Circuit’s decision—holding that 47 U.S.C. § 230 immunizes internet platforms from liability for the knowing possession and distribution of child sexual abuse material (CSAM)—will make it exponentially harder to fight the crisis of online child sexual exploitation. In NCMEC’s experience, strong incentives—including the possibility of  liability for knowing participation in criminal child sexual exploitation—are essential to ensure an adequate response from internet platforms. Absent the Court’s review, the Ninth Circuit’s decision will undercut a fragile system that is already overly reliant on voluntary efforts and the variable goodwill of internet platforms.

And Child USA filed an amicus brief arguing that Twitter was invoking an unjustifiably broad reading of Section 230:

Congress never intended Section 230 to operate as a blanket shield for internet service providers (“ISPs”). Its narrow purpose was to prevent ISPs from being treated as the publisher or speaker of thirdparty content. Petitioners’ claims fall far outside that protection: they seek to hold Twitter liable for its own misconduct—misconduct that, if proven, reflects knowing participation in and financial benefit from criminal exploitation.

I hope that the Supreme Court grants our petition, presenting an extremely important and recurring issue. Reading federal law as an open invitation for social-media companies to  knowingly possess, profit from, and distribute child pornography is an egregious misinterpretation of Section 230—and one that causing grave harm to child victims. The Court should step in to determine whether Section 230 truly places Twitter above the criminal law and allows it to knowingly distribute child pornography.

Counsel of record for our petition is Taylor Meehan, joined by colleagues Thomas McCarthy and Tiffany Bates of the Antonin Scalia Law School Supreme Court Clinic/Consovoy McCarthy PLLC. Also assisting on the petition were Benjamin Bull, Peter Gentala, Danielle Pinter, and Christen Price from the National Center on Sexual Exploitation; Lisa and Adam Haba of the Haba Law Firm, Paul Matiasic of the Matiasic Firm, P.C., and me.

The post An Important Cert Petition Pending Before the Supreme Court on Section 230 Immunity appeared first on Reason.com.

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California’s proposed “billionaire tax” is keeping the state in the news these days, as are government policies that hike the price of gasoline in the Golden State to ridiculous heights. The propensity for ever-higher taxes and always tighter regulations in California is now a defining characteristic of the place and it has consequences. Those consequences can be measured in terms of lost jobs and a sluggish economy.

California’s Lagging Economy

“California’s economic performance has fallen sharply behind the rest of the nation, with job growth since the COVID-19 pandemic at less than half the national rate, while the state’s high cost of living is erasing its income advantage,” according to a Pacific Research Institute (PRI) summary of a new report by the think tank’s Wayne Winegarden and Kerry Jackson.

Specifically, finds the report, “California’s share of the national economy has fallen precipitously from its 2021 peak and is now stagnant at around 13.8 percent. Had the state simply maintained its 2021 peak share, California’s economy would be 4.6 percent larger today—the equivalent of an additional $14,000 for every household.”

An Exodus of People and Businesses

Even before PRI started crunching the numbers, Americans were aware that California has been shedding population (partially offset by immigration from other countries). “From 2010 through 2024 (the year of the latest data) almost 10 million people moved from California to other states, while just over 7 million people moved to California from other parts of the country,” According to the Public Policy Institute of California (PPIC). “California now experiences net losses among higher-income households as well as middle- and lower-income households.”

The exodus of high-income individuals has been accelerated by proposals for a 5 percent (and potentially higher) wealth tax that has spurred people like Mark Zuckerberg, Larry Page, and Sergey Brin to head for the exits. In January, venture capitalist Chamath Palihapitiya estimated that $1 trillion of wealth fled the state ahead of the January 1 deadline to which the tax, if passed, would retroactively apply.

Businesses are leaving along with people. Tesla moved its headquarters from California to Texas, as did Chevron and real-estate giant CBRE Group. Palantir moved first to Denver and then to Miami. While new firms are still created in California, opportunities become more limited as entrepreneurs go elsewhere.

“Job growth from February 2020 to December 2025 has been less than half the rate that the rest of the nation has posted,” comment PRI’s Winegarden and Jackson. “The jobs record is even worse in the private sector, which drives innovation and fosters prosperity.” In fact, they add, “outside of healthcare jobs, California’s private sector employment market is not just stagnating—it is shrinking.”

Sure enough, PPIC finds that 21 percent of Californians have considered leaving the state over the lack of well-paying jobs. Why are jobs, businesses, and people leaving? It’s a matter of bad policy.

“From an economic perspective, residents are hampered by steep housing costs, high-priced energy, expensive cost of living, and high taxes that more than offset California’s higher-than-average household income,” note Winegarden and Jackson. “The state’s high and rising taxes, overly burdensome regulations, and general anti-business environment are incenting businesses to leave as well.”

Californians Are Overtaxed and Overregulated

California’s tax policies put it at 46 out of the 50 states of the union in the Cato Institute’s Freedom In the 50 States State Taxation rankings. “California is one of the highest-taxed states in the country. California’s combined state and local tax collections are 13.0 percent of adjusted personal income,” observe the authors of that assessment. “Regulatory policy is more of a problem for the state than fiscal policy.”

California’s overall regulatory ranking is 49 out of 50. “California is one of the worst states on land-use freedom,” warn the authors. “Some cities have rent control, new housing supply is tightly restricted in the coastal areas despite high demand, and eminent domain reform has been nugatory.” This all contributes to high housing costs that help make the state such an expensive place to live.

The Cato authors add that “labor law is anti-employment” and “occupational licensing is extensive and strict,” both of which discourage the creation and growth of businesses.

For its part, in 2024, George Mason University’s Mercatus Center assessed California as “the 1st most regulated state in the nation” with 420,434 restrictions as compared to 300,095 for second-ranked New York. Mercatus researchers cautioned that “jurisdictions that allow regulations to consistently pile up over the years experience slower economic growth” and that “growth in these regulations is correlated with increased poverty rates, lost jobs, and higher inflation, among other effects.”

Without Reform, the Golden State Will Continue To Stagnate

PRI’s Winegarden and Jackson highlight California’s “economic repellants” which, they write, “include the state’s high taxes and onerous regulations that are responsible for the growing unaffordability problem. California’s lack of affordability is driving away families who discover that they can obtain a higher quality of life for less outside of the Golden State. Accelerating the vicious cycle, businesses, aware that the state is unattractive to families, are then further incentivized to either leave or not expand their business to California.”

In explaining Chevron’s move from California to Texas, Andy Walz, Chevron’s then-president of Americas Products, commented that “California is a tough place to do business.” He added that “cost of living is expensive. And we were not able to get employees that didn’t live there to move there.”

Spread those and similar concerns across hundreds of companies and millions of individuals, and you end up with an exodus of people and businesses to comparatively more attractive alternative destinations. Those places—with lighter regulations, lower taxes, and greater affordability—become homes to people, employers, jobs, and prosperity.

“The exodus of businesses, jobs, and residents is communicating to policy leaders that the state needs to embrace a pro-growth deregulatory and tax-reform agenda that directly addresses the state’s high costs of doing business and consumer affordability problems,” conclude Winegarden and Jackson.

Basically, California needs to roll back decades of control-freakery and abandon ongoing efforts to punish success. Without reform, the state will continue down the road of economic stagnation.

The post Report: High Taxes and Burdensome Regulations Are Killing California appeared first on Reason.com.

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4/20/2010: United States v. Stevens decided.

The post Today in Supreme Court History: April 20, 2010 appeared first on Reason.com.

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5 years ago
May 2021

“Without Roe [v. Wade], political battles over abortion will continue, but they will mainly involve state-by-state legislative debates rather than arguments about constitutional law and the composition of the Supreme Court. While neither side will be happy with that situation, it will reduce the stakes of any given legislative or judicial decision and turn down the heat of a controversy that has frequently dominated national politics.”
Jacob Sullum
“The Right to an Abortion Isn’t Going Away”

10 years ago
May 2016

“After seven years of economic realities smacking Democratic promises in the face, [Sen.] Bernie Sanders has arrived to say that the problem with all the spending, the centralizing, and the stimulusing, is that it did not go nearly far enough. It would be more comforting to those who share Sanders’ broad critiques about U.S. foreign policy and domestic criminal justice if those were the issues most animating his infectiously enthusiastic fan base. But outside of a memorable February debate exchange over Henry Kissinger, they are not. Those most ardently Feeling the Bern so far this campaign season are the ones embracing his economic ideas. And sadly, many of those ideas are terrible.”
Matt Welch
“Bernie’s Bad Ideas”

“Even if he loses, Sanders has still shown he can attract around 40 percent of Democratic voters across the country. That’s an amazing performance for somebody who keeps a plaque on the office wall honoring Eugene V. Debs, who ran his 1920 Socialist Party presidential campaign from the prison cell where he was serving a sentence for sedition. Sanders is a guy who throws around words like oligarchy like penny candy, promises to stop virtually all U.S. trade with countries not run by someone named Castro, and thinks the federal government should set up ‘worker-owned businesses.’ He wants you to be able to borrow money from the government at the Post Office. And his contempt for the marketplace borders on the paranoid.”
Glenn Garvin
“The Sanders Surprise”

35 years ago
May 1991

“While a number of peripheral causes may help explain why postal prices are rising astronomically, most mailers see one fundamental reason: Labor costs at the Postal Service have spun out of control….Facing no competition and no bottom line, the Postal Service operates much like a private club, existing primarily to serve itself, contends economist Douglas Adie of Ohio University. Says Lee Epstein, president of Mailmen Inc. of Long Island, a volume mailing service: ‘There’s no competition, so they feel free to do whatever they want.'”
Carolyn Lochhead
“The Superior Mail”

45 years ago
May 1981

“In 1970, when Congress and the Nixon administration agreed to continue passenger rail travel in the face of growing public preference for auto, bus, and plane, a modest $40 million was put up to get Amtrak rolling. In 1981 Amtrak is still rolling, and the taxpayers now are laying down nearly $900 million a year for it. Amtrak officials enthusiastically predict that the system will soon achieve ‘a permanent and ever more crucial role in our national transportation system.’ More realistically, the Interstate Commerce Commission notes that ‘Amtrak seems to have stabilized into a position of permanently subsidized operations.'”
Jeffrey Shedd
“Amtrak: Congress’s Toy Trains”

“The popular wisdom is that businesses would like nothing better than to be left alone by government and that this prompts their increasingly vociferous denunciations of environmental, energy, safety, and consumer regulations. OSHA and EPA, it would seem, are agents of the devil. In fact, however, much government interference in the marketplace is inspired by business requests. Producers frequently seek tariffs, subsidies, licensing requirements, and so on to shore up their markets, boost their prices, or enhance their finances.”
Russell Shannon
“Are Businesses Really Opposed to Big Government?”

50 years ago
May 1976

“Freedom for the prostitute means not just freedom for those who ply the profession, who choose the life style; it means more freedom for all the members of society: freedom from hypocrisy; freedom for individuals to join the profession they choose, to spend their time as they choose; sexual freedom for all, and perhaps most important, freedom from yet another set of irrational and hypocritical laws criminalizing an act without victims.”
Timothy Condon
“What To Do About Prostitution”

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