Gorsuch Weighs in on Legal Deregulation

There was a terrific access-to-justice piece in US Today last week, authored by former Colorado Supreme Court Justice Rebecca Love Kourlis and her fellow Coloradan, U.S. Supreme Court Justice Neil Gorsuch.

Kourlis and Gorsuch hone right in on the source of the problem:

First, lawyers have historically enjoyed the unusual privilege of regulating themselves, under the authority of state supreme courts. In most states, the profession has used this privilege to erect rules allowing only lawyers to provide “legal services”— no matter how basic the job may be.

They also note the barriers the legal profession has long erected to outside investment, and the perversities this creates in eliminating other sources of consumer-friendly competition:

At your local superstore you may be able to find tax-preparation services or an eye doctor, but you will find no help there for even the simplest legal chore.

And in praising the deregulatory efforts recently taken by Utah and Arizona – and the approach to licensing used in the UK – Kourlis and Gorsuch come so close to advocating that legal advice be pried away from the industry’s monopolistic grip:

Someone seeking legal advice about taxes would often prefer a tax-law expert with no law degree over a trial lawyer with no tax experience.

Of course that’s right. The law is vast, and getting vaster all the time. Yet we still limit legal advice to a class of initiates, chosen via a process that tests for little other than diligence and competence in the law’s broadest strokes, and presume that these people — and only these people — can provide advice on all things having to do with “the law.” It’s bonkers.

Arizona Cuts Attorney Regulation

Following on the heels of Utah, Arizona has approved sweeping changes to its rules regulating the practice of law. Once again, I’m pleasantly surprised that a state bar has gone for what I’ve long advocated: eliminating Rules 5.4 (the prohibition on attorney fee-sharing) and 7.2 (all sorts of unconstitutional limits on attorney advertising that predate Bates v. Arizona and which the ABA has inexplicably left in its Model Rules all these years).

Arizona has also opened up its legal monopoly a bit, creating a new license for “legal paraprofessionals.” I’m less sanguine about this change. Professional licensing remains a hurdle, and given our experience with a similar structure here in Washington state, I don’t see a vast market opening up. 

It would have been far better had Arizona simply adopted another simple-but-far-reaching legal regulatory fix: narrowing the definition of “the practice of law” so that anyone could provide legal advice without needing a law license.

I know that’s an idea that sounds crazy to the ears of American lawyers, but it’s long been how things work in the UK, and it doesn’t seem to have harmed consumers or turned London’s solicitors penniless into the streets. It also makes a world of sense from a First Amendment perspective. 

But hey, maybe next year? In any event, kudos to Arizona for taking a step I didn’t see coming until after I’d long hung up my law license.

Recent Cases Bode Well for Professional Speech Rights

Catching up – this summer has seen some important developments on the professional speech front:

Billups Decision Affirmed on Appeal

In Billups v. City of Charleston, a unanimous 4th Circuit panel affirmed the District court’s decision striking down Charleston’s licensing requirement for tour guides. The court dispatches two of the key factors that licensing regulators sometimes cling to: 

  • A regulation barring unlicensed tours implicates the First Amendment even though it does not directly regulate speech, because it prevents people from speaking.
  • It doesn’t matter whether the regulation only applies to paid tours, because — as is commonly understood by those who work in media and publishing; less so by others — profit motive alone does not make speech “commercial” (and thus entitled to less constitutional protection).

As the district court did, the Fourth Circuit passes on determining whether intermediate or strict scrutiny applies to this sort of regulation. However, the opinion notes that in either case, the government has the burden of proving that it actually tried other, narrower, methods to address the problem: 

To prove that a content-neutral restriction on protected speech is narrowly tailored to serve a significant governmental interest, the government must, inter alia, present evidence showing that — before enacting the speech-restricting law — it “seriously undertook to address the problem with less intrusive tools readily available to it.” See McCullen, 573 U.S. at 494. In other words, the government is obliged to demonstrate that it actually tried or considered less speech-restrictive alternatives and that such alternatives were inadequate to serve the government’s interest.”

This is good. Too often, new regulation is just flung against whatever parade of horribles is currently occupying the community’s imagination. The Billups decision is a reminder that those making the laws must do much more when their laws impact speech.

And don’t sleep on the nod to empiricism. Besides taking speech impacts seriously and minimizing harms, the court emphasizes that regulators who want their rules to survive First Amendment scrutiny need to ground those rules in actual data.

Vocational Training is First Amendment-Protected Speech 

In Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, the 9th Circuit found that a California law prohibiting people from enrolling in vocational training unless they possess certain educational credentials implicates speech rights.

This case nicely illustrates the limitations of state arguments that licensing simply goes to conduct, rather than speech. As the court notes, laws that regulate conduct nonetheless impact speech when the conduct in question consists of communicating a message. And just like the conduct at question in Billups — leading tours — consists of communicating a message, so does the conduct of training people to become farriers. 

A Win for Midwives in Georgia

The Pacific Legal Foundation (which, along with the Institute for Justice, is one of the leading lights in pushing back against overreaching licensing regulation) sued the Georgia Board of Nursing for threatening to fine midwives for . . . referring to themselves as “midwives.” 

Note that these fines weren’t threatened for unlicensed midwives selling their services. Rather, the Board threatened fines against non-practicing midwives who, in the context of providing advice and perspective to the public, merely referred to themselves — accurately — as midwives. 

The case did not result in a final appellate decision. Surely taking heed of the instructive lesson learned by the Engineering Board in Oregon when it tried a similar move, the Georgia Board of Nursing quickly folded up its tent. But in so doing, the Board signed a consent decree that prevents it from pursuing future cases or fines against non-practicing midwives. That should act as a semi-permanent barrier against future unconstitutional behavior by the Board.

Summer of CDA 230

Since my last series of posts on this topic, there has been an epic surge of hot nonsense government proposals on CDA 230.

First up: Donald F. Trump’s executive order purporting to take social media companies to task for, well . . . see for yourself:

Don’s Executive Order in response to this injustice is performative nonsense (read Eric Goldman’s comprehensive overview for more detail), but it is passing strange how “conservatives” have suddenly embraced government control of private speech. I’m old enough to remember when Republicans actually understood how the First Amendment works. Citizens United, anyone? 

Attorney General Bill Barr dutifully followed this up with a set of “Recommendations for Section 230 Reform.” These include broadening takedown requirements, adding disclosures, narrowing CDA 230 immunity for takedown decisions, and specifying that CDA 230 immunity doesn’t apply to antitrust enforcement (I don’t know that anyone thought that it did, but whatever). If you are looking for conservative, small-government principles . . . you’re aren’t going to find them here.

Next up was the Bad Josh, the would-be “Product Manager for the Internet,” Missouri Senator Josh Hawley. Hawley and his crowd of boob-baiting fellow Republican Senators (all of whom are smart enough to know better) introduced an absolute turd of a bill designed to undercut CDA 230. While it has the virtue of only applying to the largest social media sites (thanks for that, I guess), it also doesn’t appear to do anything other than create a cottage industry of nuisance lawsuits. On the bright side, that creates a nice contingency plan for me, should I decide on a late-career switch back to being a litigator.

Closely following Hawley’s offering was the bipartisan PACT Act, sponsored by Hawaii Senator Brian Schatz and South Dakota Senator John Thune. While this bill includes some generally-unobjectionable disclosure standards, it carves back CDA 230 immunity, creates a notice-and-takedown regime, and imposes some truly laughable requirements (like a live telephone call center to respond to inquiries about moderation decisions). 

Oh, and at the same time there’s ALSO the bipartisan, oh-so-self-righteously-named “EARN IT” Act which would, that’s right, make platforms earn their CDA 230 immunity by satisfying a federal commission that they are doing all they can to prevent online sexual exploitation of children. The devil is always in the details when it comes to “think of the children” legislation like this, but it’s a safe bet that putting the thick, sweaty thumb of government on site operations in such a manner doesn’t bode well for innovation or privacy.

All in all, it’s already been a VERY busy summer for CDA 230, and it isn’t even July yet. These proposals are driven by everything from legitimate concern over edge-case issues to frustration at the reach of the First Amendment to bad-faith posturing to find any sort of brickbat to take to “Big Tech.” 

But we must keep in mind that the simplicity of CDA 230 — a too-rare example of government regulation getting out of the way and providing breathing room for new technology — has been a massive factor in enabling the growth of the internet as we know it over the last 24 years. Just because a multiplicity of voices are calling for change doesn’t mean that change is necessary or wise.   

“Strongly Regulate,” Social Media Edition

So earlier this week the President of the United States took to Twitter to baselessly accuse a private citizen of murder (as one does, amidst a pandemic that has claimed 100,000 American lives and throttled the economy). 

The calls for Twitter to ban/censure/otherwise punish Trump came swiftly. And in true Twitter fashion, the company did . . . something entirely different. It tentatively waded into ANOTHER Trump Twitter Shitshow — this one involving the Umber Menace inveigling about the perils of voting by mail. Twitter decided THIS was the fight it was going to take, appending a little linked tooltip disclaimer to the offending tweets: 

This is a form of content moderation, and obviously far short of a takedown or account suspension. And as “flags for offensive content” go, this is pretty mild. Hell, squint at it just a little and it looks like an endorsement of Trump’s claim.

But Trump, naturally, took offense: 

“Strongly regulate or close them down?” What even IS this noise? 

At one time, Republicans cared about the First Amendment. They noted, rightly, that corporations have free speech rights. And you know what? If social media platforms were actually silencing conservative voices, REAL conservatives would say “So what? The government’s got no role to play there.”

Instead, we’ve now got Trump doing his snowflake-swagger routine, echoing the bad faith nonsense that Republican Senators have been spewing for months:

I’ve written at length about why this argument is abject nonsense, and why threats to change CDA 230 aren’t going to achieve the ends Republicans like Rubio purport to be seeking. But here we are — it looks to be a long summer of escalating stupidity.

“Nice Little Internet You’ve Got There – Be a Shame if Anything Happened to It.”

There’s another shift that comes amid the whining about “tech censorship” and the “silencing of conservative voices online,” and it’s a purely transactional one: put up our content or lose the immunity that CDA 230 provides. Here’s a concise recent formulation of the bargain on offer:

This argument seems to at least implicitly acknowledge that the First Amendment protects the right of online forums to choose the content that appears on their sites. It just wants to do away with that expressive freedom as the price sites must pay in order to continue to enjoy CDA 230 immunity. 

So: either moderate your site to allow all First Amendment-protected speech, or lose your immunity with respect to third party postings. Your choice. 

Now, putting aside some obvious questions (Which sites are “market-dominant?” Could a scheme like this actually pass First Amendment scrutiny? How do we determine whether a site has lived up to this 1A standard in a given case?), it’s worth asking: would any market-dominant site actually agree to this bargain? 

OK, that’s a rhetorical question. 

Because the answer is that there is absolutely no chance that any such site would take this deal.

The First Amendment allows for a stunningly wide range of noisy, messy, irrelevant, dishonest, and offensive expression. And even if this deal allows sites to impose reasonable content-neutral restrictions (like post length, duplication, formatting, etc.), it would unleash a torrent of vitriol, abuse, pornography, and abject nonsense. Sites would be helpless to shape a desired user experience or serve a particular audience. They’d just be bulletin boards for unstructured, unfocused expression.

And what would these successful sites get for this deal? The right to be immune from liability for third party postings and their curatorial decisions? 

Sure, that’s nice and all, but it’s not an existential risk to any site that’s reached market dominance. CDA 230 immunity is most important to sites that are just getting started, who can’t take the cost of fending off suits over user-generated content. Big, established sites? They’ve got the resources to take that cost. And faced with a no-win choice like this, it’s certainly a better alternative than turning one’s site into an unusable cesspool.

What the market-dominant firms WOULD do in response to this ultimatum is pretty much the polar opposite of what the conservatives claim to be advocating for: they’d become much, much more aggressive about policing the sort of content they allow to be posted. 

Why? Because decisions to take content down, de-emphasize posts, or suspend posting privileges are protected by the First Amendment in a way that decisions to post content are not. CDA 230 provides a procedural benefit in the former case; in the latter it offers an important substantive right. Thus, while losing CDA 230 would marginally increase the risk of taking user postings down, it would greatly increase the risk of leaving postings up. 

So, if conservatives get to force government to offer this bargain, no eligible site is going to take it. And if the hammer then comes down, and CDA 230 immunity is taken away, look for the likes of Google, Facebook, and Twitter to take a much, much heavier hand with the “delete content” switch.

Now, maybe “conservatives” calling for this bargain just really don’t like the interactive web, and would be happy to see it stifled in this way. But if they really believe that there’s a deal to be had here that will lead to a more useful, robust, or “politically neutral” internet, they’re sorely mistaken. 

Why Content Moderation Codes Are More Guidelines Than Rules

Also, following on my last post: since the First Amendment protects site moderation & curation decisions, why all the calls to get rid of CDA 230’s content moderation immunity?

Having listened carefully and at length to the GOP Senators and law professors pitching this, the position seems to be a mix of bad faith soapboxing (“look at us take on these tech libs!”) and the idea that sites could be better held to account — contractually, via their moderation codes — if the immunity wasn’t there.

This is because the First Amendment doesn’t necessarily bar claims that various forms of “deplatforming” — like taking down a piece of content, or suspending a user account — violate a site’s Terms of Use, Acceptable Use Policy, or the like. That’s the power of CDA 230(c)(2); it lets sites be flexible, experiment, and treat their moderation policies more as guidelines than rules

Putting aside the modesty of this argument (rallying cry: “let’s juice breach-of-contract lawsuits against tech companies”) and the irony of “conservatives” arguing for fuller employment of trial attorneys, I’ll make two observations:

First of all, giving people a slightly-easier way to sue over a given content moderation decision isn’t going to lead to sites implementing a “First Amendment standard.” Doing so — which would entail allowing posts containing all manner of lies, propaganda, hate speech, and terrorist content — would make any such site choosing this route an utter cesspool. 

Secondly, what sites WOULD do in response to losing immunity for content moderation decisions is adopt much more rigid content moderation policies. These policies would have less play in them, less room for exceptions, for change, for context. 

Don’t like our content moderation decision? Too bad; it complies with our policy. 

You want an exception? Sorry; we don’t make exceptions to the policy. 

Why not? Because some asshole will sue us for doing that, that’s why not. 

Have a nice day.

CDA 230’s content moderation immunity was intended to give online forums the freedom to curate content without worrying about this kind of claim. In this way, it operates somewhat like an anti-SLAPP law, by providing the means for quickly disposing of meritless claims.

Though unlike a strong anti-SLAPP law, CDA 230(c)(2) doesn’t require that those bringing such claims pay the defendant’s attorney fees.

Hey, now THERE’s an idea for an amendment to CDA 230 I could get behind!

Let’s Talk About “Neutrality” – and How Math Works

So if the First Amendment protects site moderation & curation decisions, why are we even talking about “neutrality?” 

It’s because some of the bigger tech companies — I’m looking at you, Google and Facebook — naively assumed good faith when asked about “neutrality” by congressional committees. They took the question as inquiring whether they apply neutral content moderation principles, rather than as Act I in a Kabuki play where bad-faith politicians and pundits would twist this as meaning that the tech companies promised “scrupulous adherence to political neutrality” (and that Act II, as described below, would involve cherry-picking anecdotes to try to show that Google and Facebook were lying, and are actually bastions of conversative-hating liberaldom).

And here’s the thing — Google, Twitter, and Facebook probably ARE pretty damn scrupulously neutral when it comes to political content (not that it matters, because THE FIRST AMENDMENT, but bear with me for a little diversion here). These are big platforms, serving billions of people. They’ve got a vested interest in making their platforms as usable and attractive to as many people as possible. Nudging the world toward a particular political orthodoxy? Not so much. 

But that doesn’t stop Act II of the bad faith play. Let’s look at how unmoored from reality it is.

Anecdotes Aren’t Data

Anecdotes — even if they involve multiple examples — are meaningless when talking about content moderation at scale. Google processes 3.5 billion searches per day. Facebook has over 1.5 billion people looking at its newsfeed daily. Twitter suspends as many as a million accounts a day.

In the face of those numbers, the fact that one user or piece of content was banned tells us absolutely nothing about content moderation practices. Every example offered up — from Diamond & Silk to PragerU — is but one little greasy, meaningless mote in the vastness of the content moderation universe. 

“‘Neutrality?’ You keep using that word . . .”

One obvious reason that any individual content moderation decision is irrelevant is simple numbers: a decision representing 0.00000001 of all decisions made is of absolutely no statistical significance. Random mutations — content moderation mistakes — are going to cause exponentially more postings or deletions than even a compilation of hundreds of anecdotes can provide. And mistakes and edge cases are inevitable when dealing with decision-making at scale.

But there’s more. Cases of so-called “political bias” are, if it is even possible, even less determinative, given the amount of subjectivity involved. If you look at the right-wing whining and whinging about their “voices being censored” by the socialist techlords, don’t expect to see any numerosity or application of basic logic. 

Is there any examination of whether those on “the other side” of the political divide are being treated similarly? That perhaps some sites know their audiences don’t want a bunch of over-the-top political content, and thus take it down with abandon, regardless of which political perspective it’s coming from? 

Or how about acknowledging the possibility that sites might actually be applying their content moderation rules neutrally — but that nutbaggery and offensive content isn’t evenly distributed across the political spectrum? And that there just might be, on balance, more of it coming from “the right?” 

But of course there’s not going to be any such acknowledgement. It’s just one-way bitching and moaning all the way down, accompanied with mewling about “other side” content that remains posted.

Which is, of course, also merely anecdotal.

Yes, I’d Like to Think Utah is Taking My Advice

Back in January, 2018 I wrote a post titled  “What SHOULD Attorney Advertising Regulation Look Like?”

In that post — one of many in my long string of railings against the inanity of the attorney ad rules — I made my pitch plain:

So let’s gut the Rules. We can start by just flat-out eliminating – entirely – Rules 7.2, 7.4, & 7.5. I’ve never heard a remotely compelling argument for the continued existence of these Rules; they are all just sub-variations on the theme of Rule 7.1.

I would be lying if I said that at the time I wrote those words I had any optimism that a state would take this suggestion seriously — at least within my lifetime. But shockingly, this is almost exactly what the Utah Supreme Court has proposed doing: the complete elimination of Rules 7.2 – 7.5. 1

In that post I also proposed that Bars adopt controlled regulatory tests:

I know that we as lawyers are trained to “spot issues,” but this training drives way too much tentativeness. Instead of applying the precautionary principle – REGULATE NOW, IN CASE THE BAD THINGS HAPPEN – Bars could try controlled tests.

Say a Bar has gotten a question about an innovative product like Avvo Legal Services. Instead of agonizing for 6-12 months over the potential RPC implications, the Bar could – gasp – have a quick talk with the provider and make a deal: the Bar would explicitly let attorneys know it’s OK to participate, if the provider agrees to feed the Bar data on engagement, complaints, etc.

There would also be the understanding that it would be a time-limited test (enough time to get data sufficient to understand consumer impact) and that the Bar could pull the plug early if results looked super-ugly. A process like this would actually IMPROVE the Bar’s ability to address real consumer harm, while smoothing the road to innovation.

Utah? They’ve created a “regulatory sandbox” — where innovations in legal services delivery, including partnerships with non-lawyers — can be tested empirically rather than being squelched out of the gate. That’s exactly what I had in mind.

Just three years ago, Utah was part of the chorus of head-in-the-sand Bars reflexively telling its members that the modest, consumer-friendly innovation that was Avvo Legal Services couldn’t possibly comply with their Rules. 2

Now they’re leading the charge on making real change to the regulations that are holding back consumer access to justice.

While I’d like to think that Utah was persuaded by my advocacy in this area, what’s really important is that a state is actually doing something about the very real problem of regulatory cruft. 

Comments on these proposed changes are open until July 23, 2020. The usual reactionary voices will surely weigh in with their “sky is falling” rhetoric — it would be great if those who support this kind of meaningful regulatory change let the Utah Supreme Court know they are absolutely on the right track.

Notes:

  1. In fact, Utah is going even further than what I had proposed, eliminating Rule 7.3 (attorney solicitation) and incorporating its central tenants into a new section of Rule 7.1 prohibiting coercion, duress, or harassment when interacting with prospective clients.
  2. Utah State Bar Ethics Advisory Opinion No. 17-05.

Lawyer Ethics & CDA 230

I’ve been talking about CDA 230, so let’s explore a case of how “the law that makes the internet go” interfaces with the Rules of Professional Conduct governing the practice of law. 

Scintillating, right? Stick with me here . . .

We’re talking online client reviews. As we all surely know, EVERYTHING is reviewed online – even lawyers.

It’s strange that the Texas Bar is wading into this one in 2020, given that client reviews have been around for a couple of decades now. But hey – the law moves slowly and deliberately, right?

In Opinion 685, issued crisply in January, 2020, the Texas Bar determined that Texas lawyers CAN ask their clients to leave online reviews. Hell, they can even ask their clients to leave positive reviews!

Thanks, guys!

What interests me about the conclusion in this otherwise-blindingly-obvious opinion is this little tidbit, tacked on near the end:

But, if a lawyer becomes aware that a client made a favorable false or misleading statement or a statement that the client has no factual basis for making, the lawyer should take reasonable steps to see that such statements are corrected or removed in order to avoid violating Rules 7.02(a) and 8.04(a)(3).”

Huh.

Would an attorney on the receiving end of such a review be doing the right thing to ask the client to take the review down or pull back on the praise? Of course. 

But is doing so a requirement? Like, a must-do-on-pain-of-being-disciplined requirement? 

Hell no. 

And not just because of the uncertainty and vagueness involved in making this a hard requirement. No, rather because 47 USC 230(c)(1) dictates: 

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

While typically thought of in the defamation context — a forum site is not responsible for defamatory content posted by its users — it would apply equally here: CDA 230 prevents the application of state licensing rules to hold attorneys responsible for reviews posted by their clients. 1

Despite the heavily-litigated history of CDA 230, it’s unlikely this particular issue will ever see the courts. Attorneys are too cautious about threats to their licenses, the steps required to comply are so minimal, and bar counsel usually have bigger fish to fry anyway. Still, it’s instructive of the genius of this little law, and how far it reaches to remove friction from the free flow of information online.

Notes:

  1. That is, provided the attorney didn’t write the review for the client, or create the client and review from whole cloth. CDA 230 doesn’t give businesses a pass for astroturfing.