Congressional Jawboning of Internet Services Isn’t Actionable–AAPS v. Schiff

Members of Congress often send letters to various industry participants complaining about marketplace phenomena. Sometimes these letters demand additional information; other times, the letters just express opprobrium. All of these letters are backed by a coercive threat that the Congressmember will pursue punitive legislation. This phenomenon is sometimes called “jawboning.”

“According to Plaintiffs, Congressman Schiff made public statements that all but forced various technology companies, including Google, Facebook, Amazon, and Twitter, to interfere with and burden their First Amendment rights.” Schiff’s letter #1 and letter #2. This culminated in a 2019 hearing where Rep. Schiff bashed Section 230. He never mentioned the plaintiffs specifically. Nevertheless, the plaintiffs claim that the Internet services took adverse actions against them because of Schiff’s efforts. They sued Schiff for those adverse actions.

Article III Standing. The court rejects the plaintiffs’ Article III standing for several reasons, including the lack of redressability:

Plaintiffs have not shown that forcing Congressman Schiff to retract his public statements—which, importantly, did not ever mention AAPS or call for any specific action—would likely lead to any action by the technology companies. It is not plausible that Google, Facebook, or Twitter (or any other technology company) would revise their policies on medical misinformation simply because one congressman modifies his previous very generalized public statements about vaccine misinformation. It is even more unlikely that a retraction of public statements that never specifically mentioned AAPS would cause technology companies to modify their treatment of AAPS….

Plaintiffs’ allegations do not demonstrate a significant increase in the likelihood that the relief sought against Congressman Schiff will reverse the decline in internet traffic to AAPS’s site, reestablish its membership in the Amazon Associates Program, cause social media platforms to cease the content moderation policies allegedly infringing on their First Amendment rights, or remove a perceived obstacle to negotiating with the technology companies

Speech or Debate Clause. “the information gathering letters constitute protected legislative acts.”

Implications. The court doesn’t discuss the 2015 Backpage v. Dart 7th Circuit ruling, but the facts there were far more egregious. In that case, Sheriff Dart wrote threatening letters to the credit card companies urging them to cut off financial services to Backpage, which led to a preliminary injunction against Dart’s threats. Judge Posner described Dart’s efforts as “a campaign intended to crush Backpage’s adult section—crush Backpage, period, it seems.” Most Congressional jawboning is nowhere near as ominous or targeted. In this case, Rep. Schiff didn’t mention the plaintiffs directly, making the connection even more attenuated.

That’s not to say jawboning is good governance. However, interposing state action from jawboning is an even worse resolution. The court doesn’t directly discuss when a Congressmember’s exhortations can convert the actions of the Internet services into state action. However, a number of other courts have addressed and rejected similar arguments. I haven’t comprehensively rounded up those cases, but Atkinson v. Facebook and Lewis v. Google appear to be in that genre.

Case citation: Association of American Physicians and Surgeons v. Schiff, 2021 WL 354174 (D.D.C. Feb. 2, 2021)