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Below: New Jersey’s attorney general is opening investigations into Twitch and Discord, and political ads are coming back to Spotify. First:

Republicans are leaning on the courts to target social media, but losses are piling up

Out of power in Washington and without a viable path at the federal level to punish social media companies over allegations of anti-conservative “bias,” Republicans are increasingly turning to the judicial system to air their grievances with Silicon Valley giants.

But a string of legal losses deeming those efforts unconstitutional have dealt a major blow to that playbook, which is set to face its biggest test yet as soon as this week. 

On Monday, the 11th Circuit Court of Appeals ruled that much of Florida’s law seeking to prohibit social networks like Facebook and Twitter from banning politicians is unconstitutional, as my colleague Cat Zakrzewski reported

In a unanimous decision, a three-judge panel of the court wrote that companies’ content moderation decisions “constitute protected exercises of editorial judgment” under the First Amendment and that the parts of the law that “restrict large platforms’ ability to engage in content moderation unconstitutionally burden that prerogative.”

The ruling arrives as Republican state officials in Texas and the tech industry anxiously await word from the Supreme Court on whether it will block a separate but similar law that would ban social networks from removing users’ posts based on their political viewpoints. 

If the court rejects the move to block the law, it would reverse a years-long trend of GOP attempts to target social networks getting struck down as unconstitutional or legally baseless. 

Lacking control of Congress or the White House, Republicans have turned the courtroom into the central theater for their feud with Silicon Valley over claims of “censorship.”

Earlier this month, a federal judge dismissed former president Donald Trump’s lawsuit against Twitter for permanently banning him in the wake of the Jan. 6 assault on the Capitol by a pro-Trump mob. Trump’s legal team claimed Twitter infringed on Trump’s free speech rights by booting him off the platform, arguing that Twitter’s cooperation with the government made it subject to the First Amendment’s limits on government action. The court rejected the argument

A bevy of other lawsuits alleging tech “censorship” have been dealt a similar fate

At the state level, Florida’s law was quickly met by legal challenges and was later blocked on constitutional grounds before it could take effect, a decision the 11th Circuit Court of Appeals largely upheld Monday.

The Texas law was likewise dealt a blow after a judge blocked it in December, affirming that the First Amendment protects social networks’ right to police content, but it was recently reinstated

Those laws are themselves designed to bring the courts deeper into the fray by giving GOP voters tools to bring a flood of “censorship” lawsuits against Silicon Valley.

Notably, it’s a strategy that conflicts with the broader messaging from conservatives, who have traditionally opposed efforts to expand liability for corporations and  grant consumers expansive rights to bring lawsuits against businesses, including on issues like privacy. 

While some Democrats have pushed to give consumers sweeping private rights of action for data privacy violations, for example, Republicans have cast those efforts as a gift to the trial bar

The push to open social media companies up to more lawsuits extends to Capitol Hill, where top Republicans, including House Minority Leader Kevin McCarthy (R-Calif.), have called for weakening or scrapping the tech industry’s liability shield, known as Section 230. Doing so could expose a broad array of digital services to lawsuits over their content moderation decisions. 

The ruling Monday against Florida’s law also dealt a blow to the surging GOP push to treat social media companies as “common carriers” and block them from discriminating against users based on their political viewpoints. 

In a blistering rebuke of that argument, the court wrote that it was “unpersuaded” by Florida’s case for the designation and that “social-media platforms are not — in the nature of things, so to speak — common carriers.” The judges added that “Supreme Court precedent strongly suggests that internet companies like social-media platforms aren’t common carriers.”

While some Democrats in Washington have floated treating major tech companies as common carriers or public utilities to address concerns about a lack of competition in the industry, they would likely never back efforts targeting allegations of “bias,” which Democrats reject. 

In lieu of federal action, Republicans have baked the concept into state proposals that are now making their way through the judicial system — but facing massive legal hurdles and questions about their constitutionality.

Our top tabs

New Jersey attorney general opens investigation into roles of Discord and Twitch in Buffalo shooting

The investigation by acting New Jersey attorney general Matthew J. Platkin (D) will look into the platforms’ content moderation and whether they broke the state’s consumer protection laws, Platkin’s office said. New York Attorney General Letitia James (D) announced a separate investigation last week that would focus on “social media companies and other online resources that the shooter used to discuss and amplify his intentions and acts to carry out this attack,” including Discord, Twitch, 8chan and 4chan.

Payton Gendron, the 18-year-old accused of killing 10 people at a Buffalo supermarket this month, posted messages on Discord that laid out plans for a mass shooting, my colleagues reported. And he streamed the shooting on Twitch.

  • Discord removed a “small, private” server linked to Gendron’s username for violating its policies on violence and extremism, the company said. It said it discovered the server after the shooting.
  • Twitch said it removed the live-stream less than two minutes after the shooting began. (Twitch is owned by Amazon; Amazon founder Jeff Bezos owns The Washington Post.)

“Companies cannot advertise that they will do one thing, then do another,” New Jersey Division of Consumer Affairs acting director Cari Fais said in a statement. “If these platforms represent that they will proactively moderate or prohibit violent extremism and hate, and then let it flourish unchecked with potentially harmful or even deadly consequences, it is unlawful.”

Discord plans to cooperate with the investigation, the company told Engadget. Twitch didn’t respond to the outlet’s request for comment.

D.C. attorney general sues Zuckerberg in new Cambridge Analytica-related lawsuit

The lawsuit by D.C. Attorney General Karl A. Racine (D) accuses Facebook parent Meta chief executive Mark Zuckerberg of directly participating in decisions that enabled Cambridge Analytica to get millions of users’ personal data, Cat Zakrzewski reports. Another lawsuit by Racine, filed in 2018 over the company’s data practices, is ongoing.

“The lawsuit argues that the Cambridge Analytica scandal was the result of Zuckerberg’s vision to open up the Facebook platform to third party developers,” Cat writes. “It also alleges that he was aware of the potential harms that might result from sharing consumers’ data but failed to act on them,” she writes.

The Cambridge Analytica scandal has opened the company to scrutiny by regulators around the world. In 2019, Facebook and the Federal Trade Commission reached a $5 billion settlement, but Zuckerberg wasn’t directly questioned about the company’s role in the scandal as part of the investigation. 

Meta spokesman Andy Stone didn’t respond to a request for comment.

Political ads are returning to Spotify

Spotify is pitching potential partners by saying the ads can appear in thousands of podcasts and the company’s technology can place ads in podcasts with relevant topics, Protocol’s Issie Lapowsky reports. The revival of political advertising on the platform comes after a years-long pause; in early 2020, the company stopped allowing political ads because it did not “yet have the necessary level of robustness in our processes, systems and tools to responsibly validate and review this content,” a spokesperson told CNBC at the time.

Spotify has “spent the past two years strengthening and enhancing our processes, systems and tools to responsibly validate and review this content,” Spotify spokesperson Erin Styles told Lapowsky. The company is introducing some rules, including by not letting issue-related groups advertise. It’s also giving podcasts the option to turn off political ads, Lapowsky reports.

The company notably hasn’t created an ad archive like Facebook parent Meta and Google, which also allow political ads, Lapowsky reports.

Rant and rave

The 11th Circuit Court of Appeals’s ruling on Florida’s social media law sparked reactions from tech journalists and lawyers. Our colleague, Elizabeth Dwoskin:

Others responded to a tweet by Florida Attorney General Ashley Moody (R) that appeared to declare victory. Techdirt’s Mike Masnick:

Stephen Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law:

Inside the industry

How ‘Zuck Bucks’ saved the 2020 election — and fueled the Big Lie (Protocol)

Airbnb is closing its domestic business in China, sources say (CNBC)

Amazon plans to sublet warehouse space to reduce excess capacity (Wall Street Journal)

$166 for 6 cans of baby formula: Online price gouging is another blow for desperate parents (NBC News)

Agency scanner

Videogame publisher Activision illegally threatened staff, U.S. agency says (Reuters)

Raven Software employees win union election (Shannon Liao)

Coinbase tests app for employees to grade each other during meetings (The Information)

  • A House Energy and Commerce Committee panel holds a hearing on telecommunications legislation today at 11 a.m.
  • Undersecretary of Commerce for Industry and Security Alan Estevez speaks at an event hosted by the Atlantic Council and Krach Institute for Tech Diplomacy at Purdue on Wednesday at 10 a.m.
  • A House Oversight and Reform Committee panel holds a hearing on the Technology Modernization Fund on Wednesday at 10 a.m.
  • FCC Commissioner Nathan Simington discusses net neutrality at an R Street Institute event on May 26 at 3 p.m.

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