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情報通信審議会　情報通信技術分科会　新世代モバイル通信システム委員会　上空利用検討作業班（第12回）の開催について

第40回政策評価審議会（令和6年8月9日持ち回り開催）資料・議事要旨

The U.S. Supreme Court addressed government’s various roles with respect to speech on social media in five cases reviewed in its recently completed term. The through-line of these cases is a critically important principle that sets limits on government’s ability to control the online speech of people who use social media, as well as the social media sites themselves: internet users’ First Amendment rights to speak on social media—whether by posting or commenting—may be infringed by the government if it interferes with content moderation, but will not be infringed by the independent decisions of the platforms themselves.

As a general overview, the NetChoice cases, Moody v. NetChoice and NetChoice v. Paxton, looked at government’s role as a regulator of social media platforms. The issue was whether state laws in Texas and Florida that prevented certain online services from moderating content were constitutional in most of their possible applications. The Supreme Court did not rule on that question and instead sent the cases back to the lower courts to reexamine NetChoice’s claim that the statutes had few possible constitutional applications.

The court did, importantly and correctly, explain that at least Facebook’s Newsfeed and YouTube’s Homepage were examples of platforms exercising their own First Amendment rights on how to display and organize content, and the laws could not be constitutionally applied to Newsfeed and Homepage and similar sites, a preliminary step in determining whether the laws were facially unconstitutional.

Lindke v. Freed and Garnier v. O’Connor-Ratcliffe looked at the government’s role as a social media user who has an account and wants to use its full features, including blocking other users and deleting comments. The Supreme Court instructed the lower courts to first look to whether a government official has the authority to speak on behalf of the government, before looking at whether the official used their social media page for governmental purposes, conduct that would trigger First Amendment protections for the commenters.

Murthy v. Missouri, the jawboning case, looked at the government’s mixed role as a regulator and user, in which the government may be seeking to coerce platforms to engage in unconstitutional censorship or may also be a user simply flagging objectionable posts as any user might. The Supreme Court found that none of the plaintiffs had standing to bring the claims because they could not show that their harms were traceable to any action by the federal government defendants.

We’ve analyzed each of the Supreme Court decisions, Moody v. NetChoice (decided with NetChoice v. Paxton), Murthy v. Missouri, and Lindke v. Freed (decided with Garnier v. O’Connor Ratcliffe), in depth.

But some common themes emerge when all five cases are considered together.

• Internet users have a First Amendment right to speak on social media—whether by posting or commenting—and that right may be infringed when the government seeks to  interfere with content moderation, but it will not be infringed  by the independent decisions of the platforms themselves. This principle, which EFF has been advocating for many years, is evident in each of the rulings. In Lindke, the Supreme Court recognized that government officials, if vested with and exercising official authority, could violate the First Amendment by deleting a user’s comments or blocking them from commenting altogether. In Murthy, the Supreme Court found that users could not sue the government for violating their First Amendment rights unless they could show that government coercion lead to their content being taken down or obscured, rather than the social media platform’s own editorial decision. And in the NetChoice cases, the Supreme Court explained that social media platforms typically exercise their own protected First Amendment rights when they edit and curate which posts they show to their users, and the government may violate the First Amendment when it requires them to publish or amplify posts.
  
  
• Underlying these rulings is the Supreme Court’s long-awaited recognition that social media platforms routinely moderate users’ speech: they decide which posts each user sees and when and how they see it, they decide to amplify and recommend some posts and obscure others, and are often guided in this process by their own community standards or similar editorial policies. This is seen in the Supreme Court’s emphasis in Murthy that jawboning is not actionable if the content moderation was the independent decision of the platform rather than coerced by the government. And a similar recognition of independent decision-making underlies the Supreme Court’s First Amendment analysis in the NetChoice cases. The Supreme Court has now thankfully moved beyond the idea that content moderation is largely passive and indifferent, a concern that had been raised after the Supreme Court used that language to describe the process in last term’s case, Twitter v. Taamneh.
  
  
• This term’s cases also confirm that traditional First Amendment rules apply to social media. In Lindke, the Supreme Court recognized that when government controls the comments components of a social media page, it has the same First Amendment obligations to those who wish to speak in those spaces as it does in offline spaces it controls, such as parks, public auditoriums, or city council meetings. In the NetChoice cases, the Supreme Court found that platforms that edit and curate user speech according to their editorial standards have the same First Amendment rights as others who express themselves by selecting the speech of others, including art galleries, booksellers, newsstands, parade organizers, and editorial page editors.
  

Plenty of legal issues around social media remain to be decided. But the 2023-24 Supreme Court term has set out important speech-protective rules that will serve as the foundation for many future rulings. 

 

Related Cases: PETA v. Texas A&MNetChoice Must-Carry Litigation

高麗博物館（新宿・新大久保）で「強制連行」「強制労働」の否定に抗う〜 各地の追悼・継承の場をたずねて〜」をテーマに７月２４日から２０２５年１月２６日まで、企画展が開催されている。　各地の追悼の場所をフィールドワークしたパネルを中心にした展示と同時に、強制労働についての講演会、フィールドワークや追悼式に参加した各地の方々を招いてのライブトークが行われる。２４年１月末、群馬県立公園内『記憶　反省　そして友好』の追悼碑（朝鮮人労働者追悼碑）は行政代執行により撤去されたことに象徴される歴史否定の動きにあらがう企画展を紹介する。（大野和興）

Federal court records belong to everyone. But one federal court in Texas lets patent litigants treat courts like their own private tribunals, effectively shutting out the public.

When EFF tried to intervene and push for greater access to a patent dispute earlier this year, the U.S. District Court for the Eastern District of Texas rejected our effort.  EFF appealed and last week filed our opening brief with the U.S. Court of Appeals for the Federal Circuit.

EFF is not the only one concerned by the district court’s decision. Several organizations filed friend-of-the-court briefs in support of our appeal. Below, we explain the stakes of this case and why others are concerned about the implications of the district court’s secrecy.  

Courts too often let patent litigants shut out the public

Secrecy in patent litigation is an enduring problem, and EFF has repeatedly pushed for greater transparency by intervening in patent lawsuits to vindicate the public’s right to access judicial records.

But sometimes, courts don’t let us—and instead decide to prioritize corporations’ confidentiality interests over the public’s right to access records filed on the record in the public’s courts.

That’s exactly what happened in Entropic Communications, LLC. v. Charter Commuications, Inc. Entropic, a semiconductor provider, sued Charter, one of the nation’s largest media companies, for allegedly infringing six Entropic patents for cable modem technology. Charter argued that it had a license defense because the patents cover technology required to comply with the industry-leading cable data transmission standard, Data Over Cable Service Interface Specification (DOCSIS). Its argument raises a core patent law question: when is a patent “essential” to a technical standard, and thus encumbered by licensing commitments?

Many of the documents explaining the parties’ positions on this important issue are either completely sealed or heavily redacted, making it difficult for the public to understand their arguments. Worse, the parties themselves decided which documents to prevent the public from viewing.

District court rejects EFF’s effort to make case more transparent

The kind of collusive secrecy in this case is illegal—courts are required to scrutinize every line that a party seeks to redact, to ensure that nothing is kept secret unless it satisfies a rigorous balancing test. Under that test, proponents of secrecy need to articulate a specific reason to seal the document sufficient to outweigh the strong presumption that all filings will be public. The court didn’t do any of that here. Instead, it allowed the parties to seal all documents they deemed “confidential” under a protective order, which applies to documents produced in discovery.

That’s wrong: protective orders do not control whether court filings may be sealed. But unfortunately, the district court’s misuse of these protective orders is extremely common in patent cases in the Eastern District of Texas. In fact, the protective order in this case closely mirrors the “model protective order” created by the court for use in patent cases, which also allows parties to seal court filings free from judicial scrutiny or even the need to explain why they did so.

Those concerns prompted EFF in March to ask the court to allow it to intervene and challenge the sealing practices. The court ruled in May that EFF could not intervene in the case, leaving no one to advocate for the public’s right of access. It further ruled that the sealing practices were legal because local rules and the protective order authorized the parties to broadly make these records secret. The end result? Excessive secrecy that wrongfully precludes public scrutiny over patent cases and decisions in this district.

The district court’s errors in this case creates a bad precedent that undermines a cornerstone of the American justice system: judicial transparency. Without transparency, the public cannot ensure that its courts are acting fairly, eroding public trust in the judiciary.

EFF’s opening brief explains the district court’s errors

EFF disagreed with the district court’s ruling, and last week filed its opening brief challenging the decision. As we explained in our opening brief:

The public has presumptive rights under the common law and First Amendment to access summary judgment briefs and related materials filed by Charter and Entropic. Rather than protect public access, the district court permitted the parties to file vast swaths of material under seal, some of which remains completely secret or is so heavily redacted that EFF cannot understand legal arguments and evidence used in denying Charter’s license defense.

Moreover, the court’s ruling that EFF could not even seek to unseal the documents in the first place sets a dangerous precedent. If the decision is upheld, many court dockets, including those with significant historic and newsworthy materials, could become permanently sealed merely because the public did not try to intervene and unseal records while the case was open.

EFF’s brief argued that:

The district court ignored controlling law and held EFF to an arbitrary timeliness standard that the Fifth Circuit has explicitly rejected—including previously reversing the district court here. Neither controlling law nor the record support the district court’s conclusion that Charter and Entropic would be prejudiced by EFF’s intervention. Troublingly, the district court’s reasoning for denying EFF’s intervention could inhibit the public from coming forward to challenge secrecy in all closed cases.

A successful appeal will open this case to the public and help everyone better understand patent disputes that are filed in the Eastern District of Texas. EFF looks forward to vindicating the public’s right to access records on appeal.

Court transparency advocates file briefs supporting EFF’s appeal

The district court’s ruling raised concerns among the broader transparency community, as multiple organizations filed friend-of-court briefs in support of EFF’s appeal.

The Reporters Committee for Freedom of the Press and 19 media organizations, including the New York Times and ProPublica, filed a brief arguing that the district court’s decision to reject EFF’s intervention could jeopardize access to court records in long-closed cases that have previously led to disclosures showing Purdue Pharmaceutical’s efforts to boost sales of OxyContin and misleading physicians about the drug’s addiction risks. The brief details several other high-profile instances in which sealed court records led to criminal convictions or revealed efforts to cover up the sale of defective products.

“To protect just the sort of journalism described above, the overwhelming weight of authority holds that the press and public may intervene to unseal judicial records months, years, or even decades later—including, as here, where the parties might have hoped a case was over,” the brief argues. “The district court’s contrary ruling was error.”

A group of legal scholars from Stanford Law and the University of California, Berkeley, School of Law filed a brief arguing that the district court inappropriately allowed the parties to decide how to conceal many of the facts in this case via the protective order. The brief, relying on empirical research the scholars undertook to review millions of court dockets, argues that the district court’s secrecy here is part of a larger problem of lax oversight by judges, who too often defer to litigants’ desire to make as much secret as possible.

“Instead of upholding the public’s presumptive right of access to those materials, the court again deferred to the parties’ self-interested desire for secrecy,” the brief argues. “That abdication of judicial duty, both in entering the protective order and in sealing judicial records, not only reflects a stubborn refusal to abide by the rulings of the Fifth Circuit; it represents a stunning disregard for the public’s interest in maintaining an open and transparent court system.”

A third brief filed by Public Citizen and Public Justice underscored the importance of allowing the public to push for greater transparency in sealed court cases. Both organizations actively intervene in court cases to unseal records as part of their broader advocacy to protect the public. Their brief argues that allowing EFF to intervene in the case furthers the public’s longstanding ability to understand and oversee the judicial system. The brief argues:

The public’s right of access to courts is central to the America legal system. Widespread sealing of court records cuts against a storied history of presumptive openness to court proceedings rooted in common law and the First Amendment. It also inhibits transparency in the judicial process, limiting the public’s ability to engage with and trust courts’ decision making.

EFF is grateful for the support these organizations and individuals provided, and we look forward to vindicating the public’s rights of access in this case.

Related Cases: Entropic Communications, LLC v. Charter Communications, Inc.

今年4月、フィリピンは異常な猛暑に見舞われた。例年この時期は平均気温が30℃半ばまで上がる一年で最も暑い季節だが、今年は暑さ指数が40度を超え、ルソン島中部では体感温度が47℃まで上昇したという。この記録的猛暑を受けて、全国数千以上の公立学校ですべての授業が2日間休止され、360万人の児童たちに大きな影響が出た。

　何かを批判・批評したら「悪口」や「攻撃」と取られる時代。都知事選でも、現職を批判する蓮舫氏が、テレビのコメンテーターから「こわい」の大合唱を浴びせられていた。　6月、小学校の娘の学級懇談に行った。担任が教育方針について「友達同士マイナスなことを言わないよう呼びかけている」と言った。何を言うにもポジティブにと。はて。　次第に広がる社会生活の中で、何かの不正や権利侵害に直面する場面にきっと遭遇する。そんなとき、わが子は笑って流さず、毅然と「それはおかしい」と言えるだろうか。　親..

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