Federal Courts Reject AZ AG Brnovich’s Attempts to Violate the First Amendment

Mark Brnovich
Arizona Attorney General Mark Brnovich: No friend of the First Amendment (Gage Skidmore via Flickr)
Arizona AG Mark Brnovich's claim to support laws in Florida and Texas that protect the "free flow of information and ideas" is belied by his efforts to censor Backpage.com.

Arizona Attorney General Mark Brnovich says he supports the “free flow of information and ideas,” at least when it comes to recent laws in Texas and Florida attempting to squash the First Amendment rights of social media outlets.

But when that “free flow of information and ideas” includes First Amendment-protected sexual expression among adults, like the adult ads that once appeared on the classified listings giant Backpage.com, Brnovich’s commitment to a “free flow” fades faster than his Just For Men dye job.

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Guess what? The First Amendment applies to social media platforms, too.

Back in August 2017, Brnovich and 49 other state and territorial AGs signed a letter asking that Congress amend federal law to allow states to prosecute Backpage for hosting advertisements for lawful adult services like escorts, massage, striptease, etc.

Federal courts have consistently upheld Backpage’s First Amendment right to publish such adult-oriented ads. But Brnovich and his colleagues, in a move worthy of Joe McCarthy, falsely accused Backpage of the “facilitation of sex trafficking” and “crimes against children,” demanding the states be given the ability to criminally pursue the site.

Then, in 2018, the federal government seized and took down Backpage, arresting its former owners, Michael Lacey and Jim Larkin, and falsely charging them with 100 counts related to the facilitation of misdemeanor state prostitution offenses.

At the September 2021 trial, the prosecution relied on the same smear tactics previously employed by the state AGs, repeatedly invoking child sex trafficking in defiance of the trial judge’s orders, ultimately resulting in a mistrial.

Kevin Newsom in 2009. Now a federal judge, he struck a blow for the First Amendment in a recent 11th Circuit Case. (CSPAN)

Now Brnovich is back treating the First Amendment like a doormat, joining a handful of other Republican AGs in support of laws in Florida and Texas that would force big tech platforms to act as “common carriers” and surrender their editorial rights to curate their sites as they see fit.

Brnovich et al. signed amicus briefs in support of Texas’ H.B. 20 and Florida’s S.B. 7072, arguing the states have a compelling interest in guaranteeing the “free flow” of information and ideas to their citizens.

Federal courts have since ruled that these laws likely violate the First Amendment.

Recently, the Eleventh Circuit Court of Appeals upheld part of a lower court’s preliminary injunction against S.B. 7072. And just last week, the U.S. Supreme Court re-imposed a preliminary injunction on H.B. 20.

You might call AG Brnovich’s stance “consistently hypocritical” —  and anti-free speech, to boot. In the case of Backpage, the AG opposed the publication of legal adult content, essentially demanding its censorship on threat of prosecution.

But when it comes to the social media laws of Texas and Florida, Brnovich and other AGs want to deny the editorial rights of such outlets, making the sites publish content they do not want.

Brnovich’s tactics may seem contradictory, but they aim toward a common end: suppressing the First Amendment rights of others.

Tale of Two Bills

In recent years, there’s been much talk by progressives and conservatives of repealing or amending Section 230 of the Communications Decency Act, which generally holds interactive sites harmless for the content posted by users and allows those same sites to freely moderate their content.

Often this debate overlooks the fact that the editorial decisions of interactive websites also enjoy First Amendment protection. Recent court decisions regarding the Florida and Texas laws drive home this point, to the chagrin of Brnovich and his fellow AGs.

“Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.” — Eleventh Circuit Court Judge Kevin C. Newsom

Both S.B. 7072 and H.B. 20 are complex and regulate large social media sites in different ways, though each statute seeks to restrict the ability of interactive platforms to moderate content.

Florida’s S.B. 7072 forbids a site from willfully deplatforming a candidate for office. It also prevents a social media platform from censoring, deleting or shadow-banning “a journalistic enterprise based on the content of its publication or broadcast.”

The statute requires social media platforms to be “consistent” in the application of their rules and give prior notice when a platform decides to censor or shadowban someone, offering a “thorough rationale” for the censorship.”

Similarly, Texas’ H.B. 20 promulgates a litany of regulations for “social media platforms and interactive computer services,” including a prohibition on censoring “a user, a user’s expression or the user’s ability to receive the expression of another user” based on a user’s viewpoint or geographic location.

In response, NetChoice and the Computer and Communications Industry Association (CCIA) sued Texas and Florida, winning injunctions against each law for likely First Amendment violations.

Republican AGs, including Brnovich, have opposed these injunctions in amicus briefs, arguing that the laws were, in fact, attempting to guarantee freedom of speech on these very platforms.

The amicus brief in support of the Florida law argues:

The States have a strong interest in ensuring that their citizens enjoy access to the free flow of information and ideas in ‘the modern public square’ that is the social media marketplace . . . But the social-media ecosystem, run by an increasingly small number of large companies who function as the gatekeepers of online content, threatens the States’ ability to meet this salutary goal. That marketplace is susceptible to well-documented arbitrariness, censorship, and other forms of editorial abuse at the hands of these gatekeepers, many of which are members of Plaintiffs’ trade associations. 

The AGs say that interactive websites are more like utilities than newspapers and the “content moderation” these outlets engage in is “conduct,” not speech. The Florida law, argue the AGs, reins in the “arbitrary and blunderbuss content-moderation policies” of these platforms and websites.

Likewise, the amicus brief defending the Texas law contends that interactive websites and platforms are akin to “the telegraph, telephone and cable television” and should “provide equal rights of access to all comers.”

Social media platforms are “the modern public square,” reads the amicus. In H.B. 20, the government is “not compelling speech,” the AGs insist. Rather, H.B. 20 compels the hosting of others’ speech, which the AGs claim is different.

“A users’ speech [sic] on a social media network is . . . not the platform’s speech. Regulating how a platform hosts the speech of others, as HB 20 does, is thus constitutional,” argues the AGs’ amicus brief supporting H.B. 20.

Free Flow Meets First Amendment

On the whole, the courts weren’t buying what the AGs were selling. On May 23, an Eleventh Circuit panel made up of three Republican appointees thoroughly rejected the arguments of the state of Florida and of the assorted AGs and their amicus brief.

Judge Kevin C. Newsom, a Trump nominee to the bench,  wrote:

“We hold that it is substantially likely that social media companies — even the biggest ones — are ‘private actors’ whose rights the First Amendment protects . . . [and] that their so-called ‘content moderation’ decisions constitute protected exercises of editorial judgment . . .”

Newsom explained that one of the “basic principles” of the First Amendment applies to Facebook, Twitter, TikTok, YouTube and so on.

“Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it,” he wrote.

Newsom rejected the notion social media platforms are “common carriers” or “dumb pipes.” Instead, a platform uses its editorial judgment by curating content, removing posts that violate its terms of service and prioritizing the display of user-generated content.

Such editorial judgments are protected by the First Amendment, according to various Supreme Court precedents, Newsom noted. The judge also identified some Holland Tunnel-sized loopholes that could force a platform to host all manner of vile speech.

He wrote:

For instance, [sections of S.B. 7072] prohibit deplatforming, deprioritizing, or shadowbanning candidates regardless of how blatantly or regularly they violate a platform’s community standards and regardless of what alternative avenues the candidate has for communicating with the public. These provisions would apply, for instance, even if a candidate repeatedly posted obscenity, hate speech, and terrorist propaganda. The journalistic-enterprises provision requires platforms to allow any entity with enough content and a sufficient number of users to post anything it wants—other than true ‘obscen[ity]’—and even prohibits platforms from adding disclaimers or warnings . . . the provision is so broad that it would prohibit a child-friendly platform like YouTube Kids from removing—or even adding an age gate to—soft-core pornography posted by PornHub, which qualifies as a ‘journalistic enterprise’ because it posts more than 100 hours of video and has more than 100 million viewers per year. 

The Ghost of Backpage

Newsom largely gutted S.B. 7072. A judge in the Western District of Texas enjoined H.B. 20 along the same lines, only to have the injunction stayed by the Fifth Circuit Court of Appeals.

NetChoice and CCIA appealed to the U.S. Supreme Court, which vacated the Fifth Circuit’s stay, effectively reinstating the injunction in a 5-4 vote that SCOTUSblog.com called “ideologically scrambled,” with Justice Alito actually writing a dissent that two other Justices joined.

Importantly, prior to its 2018 demise, Backpage also hosted Constitutionally-protected speech and used content moderation much as other platforms do.

But in the rush to demonize Backpage, elected law enforcement officials like Brnovich chose to disregard Backpage’s First Amendment rights.

In Tweets, podcasts, videos and one unusually lurid handbook, Brnovich’s office accused Backpage and its founders of monstrous crimes with absolutely zero evidence, apparently because Brnovich disapproved of the adult content that once appeared on Backpage.

Basically, Brnovich wanted Backpage to self-censor, to rid itself of adult advertisements, much as Craigslist.org did in 2010 when it caved to a pressure campaign from politicians and bluenoses.

Oddly, if Brnovich and his AG buddies had their way in the courts regarding the Florida and Texas laws, Backpage could have been forced to host X-rated content or perhaps even content that advocated illegality.

As it was, Backpage proactively removed unwanted and illicit content through multiple layers of moderation. Illegal content was verboten.

During the brief September 2021 trial, one of the prosecution’s key witnesses, an investigator with the California AG’s office, testified that the ambiguous language and racy photos that appeared on Backpage in various adult-themed categories were facially legal, protected by the First Amendment and arguably for lawful adult services in California.

Here was a “free flow” of speech that was 100 percent legal, and yet, Brnovich, desperate to score political points, wanted it censored.

But in the case of the Florida and Texas statutes, the amicus brief signed by Brnovich would have forced outlets such as Backpage to abandon their editorial prerogative and publish content that the site’s owners found objectionable.

Seems one man’s free flow is another’s auto-da-fé.

Like many a politician, Brnovich is fine with trashing the First Amendment as long as doing so is popular with his base.

In this war on the First Amendment, tactical consistency is unnecessary. For politicians like Brnovich, the ends justify the means, even if the means involve extreme contradictions that otherwise might cancel each other out.

Note: Brnovich’s wife, federal Judge Susan Brnovich, was the trial judge on Lacey/Larkin case from March 2019 until she unexpectedly recused herself over a month after she declared a mistrial in the case on September 14, 2021.

And ICYMI, please also read:
A POTUS/SCOTUS FETUS FOR THE REST OF US
and
WaPo Issues Correction to Review of Maggy Krell’s Book ‘Taking Down Backpage’

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About Stephen Lemons

Stephen Lemons is an award-winning investigative journalist with more than 20 years of experience covering everything from government corruption to white-supremacist gangs. In addition to Front Page Confidential, his work has appeared in Phoenix New Times, the Los Angeles Times, Salon.com, and the Southern Poverty Law Center’s Intelligence Report magazine.

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