DC Circuit Confirms That Congressional Jawboning Isn’t Actionable–AAPS v. Schiff

This is one of many cases, often related to #MAGA or anti-vax, seeking legal recourse for Congressional jawboning of Internet services. More typically, the plaintiff claims Internet services become state actors due to the jawboning directed at them. In contrast, the plaintiffs sued Rep. Schiff directly for jawboning. The district court dismissed the case. The DC Circuit affirms.

The court says the plaintiffs doesn’t have Article III standing. The plaintiffs allege that “Representative Schiff’s actions interfered with its ‘free negotiations’ with the technology companies.” However, the court says the plaintiff never tried to negotiate with the Internet services and doesn’t have concrete plans to do so. Amazon did kick the plaintiff out of its affiliate program, but the plaintiff hasn’t tried to reengage or shown it even wants to.

Schiff didn’t deplatform/downgrade the content himself; the Internet services did. The plaintiff claims Schiff nevertheless caused these outcomes. The court disagrees:

Even assuming the Association’s content was indeed demoted in search results and on social media platforms, the technology companies may have taken those actions for any number of reasons unrelated to Representative Schiff. Appellants offer no causal link that suggests it was an isolated inquiry by a single Member of Congress that prompted policy changes across multiple unrelated social media platforms.

There’s also a timing problem: “the decisions by the companies seem to have occurred before Representative Schiff even sent the letters, and many took place before the hearing that purportedly coerced the companies to adopt Representative Schiff’s preferences.” Specifically, the court acknowledges the anti-vaxxer implications of this case. The court says tartly:

it is far less plausible that the companies’ actions were a response to one legislator’s inquiry than that they were a response to widespread societal concerns about online misinformation

Congress has many levers to encourage good behavior in our society without resorting to censorship, directly or indirectly. That’s why I struggle to understand why Congressmembers keep encouraging Internet services to target constitutionally protected speech. It’s not an appropriate function for Congress, and it comes with the unwanted baggage of pouring gasoline on the conspiracy theory fires and spurring more bogus litigation.

Case citation: Association of American Physicians and Surgeons v. Schiff, 2022 WL 211219 (D.C. Cir. January 25, 2022)

Some Jawboning Posts:

• The First Amendment Protects Twitter’s Fact-Checking and Account Suspension Decisions–O’Handley v. Padilla
• One More Time: Facebook Isn’t a State Actor–Atkinson v. Facebook
• Government Jawboning Doesn’t Turn Internet Services into State Actors–Doe v. Google
• Facebook Defeats Lawsuit By Publishers of Vaccine (Mis?)information–Children’s Health Defense v. Facebook
• Another Must-Carry Lawsuit Against YouTube Fails–Daniels v Alphabet
• Congressional Jawboning of Internet Services Isn’t Actionable–AAPS v. Schiff
• Facebook Isn’t a Constructive Public Trust–Cameron Atkinson v. Facebook
• Section 230 Ends Demonetized YouTuber’s Lawsuit–Lewis v. Google