On the Perils of Regulating Content Moderation (Part 2 of 3)

In the first post in this series, I went through the background on CDA 230’s protection for the content moderation decisions of site operators. Today, a story about the implications of adding greater liability in this area — and why exposing sites to liability for their moderation decisions would render unviable most online services that rely on third party content.

From 2007 to 2018 I was general counsel for Avvo, an online resource for people to research legal issues and find lawyers. One of Avvo’s innovations (and the reason it needed a GC from its earliest stages) is that it published  a profile of every lawyer in the country — whether lawyers liked it or not. As those profiles included disciplinary history, Avvo’s rating of the lawyer’s background, and client reviews . . . well, some lawyers didn’t like it.

The week it launched, Avvo was sued in a nationwide class action alleging that Avvo’s editorial rating of attorneys was defamatory. And although that case was thrown out on the pleadings, getting such a result was expensive. In the years that followed, Avvo grew and became more important to consumers and lawyers alike. Despite this, lawyers – often sanctioned lawyers, who disliked the fact that Avvo exposed disciplinary history far more effectively than the websites of the state Bars – tried other vectors of attack. These included consumer fraud, publicity rights, etc. None of these cases survived the pleadings. But pushing back on them wasn’t without cost. These were largely unexplored areas at the intersection of publishing, public records, and commercial speech. Fortunately, Avvo had the resources and was able to aggressively fight back.

But client reviews? For the most part, nobody sued over those. 1

Oh, it wasn’t that every attorney loved their client reviews, or believed that they accurately reflected the services provided. Far from it. For while most reviews ran positive – it turns out people appreciate being gotten out a jam – some, inevitably, did not. It’s a result dictated by the law of large numbers; clients were posting thousands of reviews on Avvo every week. 2

And lawyers certainly threatened to sue Avvo over those reviews. Hundreds and hundreds of times. But CDA 230’s broad and straight-forward language — and its hard-fought litigation history — ensured that the threateners scuttled away, often not even bothering to leave a “SEE YOU IN COURT!” in their wake. 

I sometimes felt like a part-time CDA 230 instructor, educating my fellow members of the bar, one at a time, on the simple brilliance of the 26 words that created the internet.

But what if CDA 230’s protections were hedged? What if Avvo had some obligation to moderate content “reasonably,” or take content down on affidavit or “notice of falsity,” or any of the many other suggested tweaks to the statute?

It would have been game over. 

More on that in the final post in this series.

Notes:

  1. Or, at least they didn’t until very late in Avvo’s run as an independent company, when an attorney tried the angle that California’s unfair trade practices required some sort of judicially-imposed review moderation regime quite at odds with CDA 230. We got the complaint stricken under California’s stellar anti-SLAPP law.
  2. I do recall a single occasion when an attorney – the attorney behind this video, in fact – readily conceded that he’d earned a poor review. Much respect.

On the Perils of Regulating Content Moderation (Part 1 of 3)

You’ll have to forgive social media companies for feeling whiplashed on the policy front.

Should they be forced to determine the truth or falsity of all political ads?

Or should they be forced to carry ALL political ads, regardless of truthfulness?

Should they have to post everything their users post, in the quest for “balance?”

Or should they be forced to eliminate hate speech from their platforms – on pain of jail time?

These proposals are all, to varying degrees, misguided, incoherent, impossible, and just plain bad policy. 

Yet they’re being promoted by lots of influential people. There are bad-faithers in Congress — like Senators Josh Hawley and Ted Cruz — calling for online companies to be neutral platforms, to stop “determining falsity” and “censoring conservatives” and, I guess, just mindlessly publish whatever their users decide to post or include in advertisements.

And on the other hand, you’ve got people like Sasha Baron Cohen — who famously abused the trust and good nature of lots of ordinary people in service of his comedy — calling for social media companies to do ever-more, to moderate more fastidiously, within a set of rules and guidelines the deviation from which may lead to criminal sanctions. 

Obviously, you can’t have it both ways, people.

But here’s the thing: “you must publish it all” and “you must moderate better” are both horrible attempts to constrain online platforms. Besides the glaring First Amendment problems, these types of suggestions carry the not-insignificant consequences of either shutting these platforms down or turning them into absolute sewers.

The beauty of existing law, in the US at least, is that sites are free to make their own determinations about what gets published on their platforms. This is thanks to the “good faith content moderation” section of 47 USC 230(c), otherwise known as “CDA 230.” It’s the companion to CDA 230’s more widely-known feature: immunity from liability for hosting third-party content. 1

CDA 230 provides the breathing room for sites to host third party content to serve their audiences. And while “you’ve got to be a neutral platform” is not a serious objection (if sites were required to publish everything that users throw at them, they would be utterly useless), the idea that sites should be held to government-imposed content moderation rules is more pernicious by virtue of its surface appeal. Why not require that sites moderate away objectionable content?

The rejoinder should be obvious: who gets to determine what’s “objectionable?” 

Unfortunately, there’s never a shortage of people stepping up to take on the censor’s role. 

Or people who blindly react to the fresh outrage of today, forgetting that today’s “cut off the hurtful speech” is tomorrow’s censorship of the powerless.

Or people who poo-poo the problem, confidently stating that surely — SURELY — guardrails can be built to require just the right amount of content moderation.

Calling for greater regulation of online content moderation is a recipe for First Amendment violations and unintended consequences. The specter of liability for “getting content moderation wrong” is spectacturally under-appreciated. In Part 2, I’ll get into the detail about how this plays out in practice.

Notes:

  1. Not without limitation; CDA 230 immunity doesn’t apply to federal crimes or intellectual property claims.

Will SCOTUS Address Professional Speech?

Watching with interest: whether the Supreme Court grants cert in Capital Associated Industries v. Stein, a 4th Circuit decision out of North Carolina addressing the interplay between legal licensing and the First Amendment.

While the Stein decision ultimately decides that regulation of the unlicensed practice of law is subject to intermediate scrutiny – and that the North Carolina UPL regulation meets that standard – the opinion suggests that restricting the provision of legal advice is merely conduct regulation, not speech regulation.

That doesn’t seem remotely right. Legal advice . . . is conduct?

Yes, yes – speech can be conduct under certain limited circumstances. But normally when we’re talking about speech-as-conduct we’re talking about consumer disclosure requirements or the things physicians have to say in order to obtain informed consent from their patients. The speech is such cases is treated as conduct because it’s incidental to the good or service at issue.

But legal advice? That’s speech, and, really, nothing BUT speech.

This is not to say that providing legal advice can’t be regulated — or even that intermediate scrutiny isn’t the right standard by which to judge such regulation (though Widener Law Dean Rodney Smolla makes a compelling case for strict scrutiny).

But it’s sloppy and unhelpful for courts to futz around and conflate concepts like “incidental effects on speech,” “speech-as-conduct,” and “bona fide licensing requirements” when talking about government restrictions on the content of speech. That’s going to continue to happen without a coherent approach to professional speech regulation. It would be great if the Supreme Court took this opportunity to finally sort things out on this, one of least-unexplored frontiers of First Amendment law.

Updated: Nope; cert denied. A shame.

Spineless FTC Goes Weak on Astroturfing

Writing astroturf reviews is WRONG, people. Like, OBVIOUSLY wrong.

So you’d think that if you got caught instructing your employees, in sunny yet oh-so-detailed ways, on how to leave fake positive reviews for your products, you would get more than just a slap on the wrist.

Right?

I mean, that’s what happened to the sorry bastards running Lifestyle Lift, who got smashed by the NY AG’s office to the tune of $300K after creating an elaborate scheme of fake microsites and reviews. Dozens of other companies have also paid 5- and 6 figure sums to settle astroturfing complaints brought by regulators.

But for shlepper of high-end beauty products Sunday Riley? Who gave employees a nine-step guide to writing fake reviews on Sephora’s website (you can read it in all of its hyper-specific, fraud-tastic glory here)? They’ve earned merely a stern talking-to and a “please don’t be naughty again” from the FTC.

Timothy Geigner at Techdirt put it best, describing Sunday Riley’s practices as:

really blatant, really fake, and really shady. This was a coordinated attempt to falsely manipulate the review system of Sephora for the purposes of fooling the public into buying more product.

This wasn’t a foot-fault, a naive error, or a single instance of wrongdoing. It was a calculated effort to fool a public that already has a super-hard time staying informed about the rapidly-evolving skincare industry.

But instead of stomping on this, the FTC basically greenlit further wrongdoing. Its settlement with Sunday Riley doesn’t require payment of any money, agreement to any kind of oversight, or even an admission of wrongdoing. While I’m no fan of agency overreach, this is the kind of factual record that screams out for significant punishment – not this kind of “tsk-tsk” nonsense.

Another “Abortion Counseling” Law Knocked Back

It seems to be an equal opportunity area, the fight to control speech around abortion. Blue states want to force churchy “crisis pregnancy centers” to inform people about its availability, while red states want to force doctors to scare patients away from it.

Thankfully, at least the courts are still thinking about the First Amendment.

Last year, we saw the beatdown of California’s mandatory pregnancy center notification requirement in NIFLA v. Becerra (a case that noted the First Amendment right of the centers to not have to carry the state’s message, but which is also notable for FINALLY opening the door for SCOTUS to flesh out a “professional speech” doctrine).

And today, we’ve got a federal district court in North Dakota blocking a law that would have forced doctors to advise patients about, well, all sorts of nonsense in a transparent attempt to make them fear ending their pregnancies.

Other states have similar laws; expect them to see similar fates.

It’s ironic that the strongest precedent for striking these laws is a Supreme Court case nixing a law where the shoe was solidly on the other foot. But far from surprising — too many policymakers are only opposed to speech restrictions when they’re imposed on the other team.

Are ALL Licensing Restrictions OK Now?

I missed this when it was issued last month, but struck by the result in the del Castillo v Philip case, challenging the application of Florida’s licensing law for dietitians to prevent the sale of diet coaching services by a non-licensee.

While the court is foreclosed from asking the obvious question (“do we really need so many god damn occupational licensing laws?”), it could have, you know, paid a little deference to the First Amendment on its way to depriving Heather Kokesch del Castillo of her right to earn an honest living.

Because maybe I’m reading this wrong, but it seems like the court is saying that ANY entry-to-the-profession licensing requirement inherently does not raise First Amendment issues — even if the profession is fundamentally centered on speech.

And even if the licensing requirement involves having a college degree and at least 6 months of relevant experience.

Look, I understand if the state wants to require a business license and the payment of a nominal fee before someone starts selling services to clients. That seems generally applicable, not speech-impacting, and relevant to prosaic matters like being able to hold businesses accountable for fraud and crappy service.

But it’s another thing entirely when those licensing requirements are extensive – and instead of merely giving the licensees the right to advertise their services as having met a state-sanctioned level of putative quality, prohibit non-licensees from providing any sort of advice and counsel in an incredibly broad area like “diet and nutrition.”

Shouldn’t the court have run this through something like intermediate scrutiny analysis – which likely would have found that the state could have achieved its desired objective through a less-speech-impacting means, such as certification?

I mean, there’s nothing keeping Florida from setting up a fancy “certified dietician” program with these educational and experience requirements. Ms. del Castillo couldn’t call herself one of those, but she would still be free to sell her services. And consumers could choose for themselves. Is there some consumer protection need here that is SO pressing we need to keep diet-interested bloggers from sharing their thoughts on a paid basis?

Here’s hoping the Supreme Court takes this case, and provides some much-needed clarity to the nascent professional speech doctrine.

[and yes, the implications for legal licensing should be obvious]

Lying lawyers who lie

Paul Manafort, President Donald Trump’s one-time campaign manager, has joined the growing list of Trumpelos modeling orange jumpsuits for the 2019 season. Upon Manafort’s second sentencing – he’s getting two terms, totaling out to close to a decade, for a dogs’ breakfast of financial crimes – his attorney, Kevin Downing, made a curious claim:

“Judge Jackson conceded that there was absolutely no evidence of any Russian collusion in this case. So that makes two courts. Two courts have ruled no evidence of any collusion with any Russians.”

Except that she didn’t.

Manafort wasn’t being tried for “collusion,” and Judge Jackson didn’t make any rulings regarding “collusion.” What she DID say was:

“The ‘no collusion’ refrain that runs through the entire defense memorandum is unrelated to the matter at hand.”

and

“The ‘no collusion’ mantra is simply a non sequitur.”

and

“The ‘no collusion’ mantra is also not accurate, because the investigation is still ongoing.”

Oh. That’s pretty much NOTHING LIKE ruling that there was “no Russian collusion.”

But Downing said two courts had made this determination. What did the other court say?

“He [Manafort] is not before the court for anything having to do with colluding with the Russian government to influence this election.”

Uh, right. He’s before the court for being a swindler. That doesn’t foreclose the possibility that he committed other crimes; just that he’s not being tried for other crimes right now.

It would be an insult to Downing’s intelligence to think he didn’t know the difference between a comment about the limited scope of the proceeding and a ruling, so let’s just call his statement what it is: a lie.

But is it a sanctionable lie? Should Downing’s license to practice law be in jeopardy for this statement?

Many lawyers think so, and some have already filed Bar complaints against Downing. But I think this case aptly illustrates the appropriate limits of the Bar’s ability to sanction lawyerly lies.

Like all Americans, lawyers have a First Amendment right to lie. 1 There are some conditions on this right – defamation and fraud, for example. And lawyers, as a condition of being licensed, take on a few more. But these conditions are all about ensuring the proper functioning of the judicial system – attorneys are ethically bound to duties of candor to clients, opposing parties, witnesses, and tribunals. They cannot say things – truthful or not – that materially interfere with the administration of justice in their own cases. And they can’t mislead or engage in undue suasion in attempting to acquire clients.

At most, there’s the requirement in Model Rule 8.4(c) that lawyers not:

engage in conduct involving dishonesty, fraud, deceit or misrepresentation

But that rule turns on the word “conduct,” which we know – from a whole line of “conduct-or-speech” cases I’m not getting into here 2 – is not the same as pure speech from a First Amendment perspective.

Which Downing’s statement was. Pure speech. And any application of Rule 8.4(c) to that speech would be surely unconstitutional.

Downing’s comments certainly were not admirable, praiseworthy, or wise. They were venal and pathetic. But we must think twice before summoning the awful power of government sanction against even the most ill-advised of statements. As Justice Kennedy wrote for the majority in Alvarez:

“Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”

Indeed.

Notes:

  1. See, for example, US v. Alvarez).
  2. Fine – Planned Parenthood v. Casey.

“DoNotPay” App Expands; Attorneys Tremble

The “DoNotPay” app, originally launched to script people through the process of fighting traffic tickets, has vastly expanded its scope to include some 15 different areas.  DNP founder Joshua Browder has a thread on twitter running down the changes:

 
The wringing of lawyerly hands began immediately; here’s just one example:

The general themes of the complaints I’ve seen – which are very familiar from my days at Avvo – seem to be that DNP is engaged in the practice of law, consumers have no recourse when something goes wrong, and that legal issues are far too special and complicated to be left to scripting and algorithms. Let’s address.

The Practice of Law

“The practice of law” is a frustratingly ill-defined term. It is malleable enough to be wielded by lawyers in all sorts of ways to extend the legal monopoly to its broadest extent – lawyers routinely use it to exclude others from providing “legal advice.” But the rub has always been that such advice must be in the context of a client relationship of trust and reliance for it to be “the practice of law.” Attempts to take on non-specific forms of legal advice – books, articles, talks, etc. – have flailed, in several cases with settlements and legislative bailouts saving Bars from sure First Amendment losses.

Why? Because the First Amendment requires that any content-based speech restrictions (apart from a few specific categories not relevant here) survive strict scrutiny – and any limitation or sanction for publishing would be such a restriction.

(And as an aside: there’s also a good argument that the First Amendment even prohibits states from monopolizing for lawyers the sale of individualized legal advice, but I’ll stick to my central point for now.)

DNP is, for all legal purposes, a publishing exercise in that it offers generalized guidance. It doesn’t matter that this guidance is user-centric, interactive, and detailed: there is no client relationship of trust and reliance, no human intervention, no exercise of legal judgment.  There’s simply no way it meets any constitutional definition of “the practice of law.” 1

Legal Recourse

Many lawyers have made much of “what happens to the poor consumers when something goes wrong? Who can they sue?”

How about nobody?

Not every injury requires a remedy. As I’ve often pointed out, consumers make price/quality trade offs all the time. And they’re making them right now in law: they’re choosing the DIY path instead of engaging with lawyers. One of the things consumers give up, when they choose to rely on books, or court forms, or something their friend’s brother’s girlfriend told them about HER legal issue, is the ability to sue someone for sending them astray with bad advice.

And that’s fine. Consumers should have the right to make this choice.

So: my answer is that while consumer protection and contract law principles could apply to tools like DoNotPay (depending on representations made by those offering such tools, or agreements they make with their users), there’s no reason to require liability as a condition of such tools existing.

[It’s also ironic that lawyers make so much of the availability of malpractice remedies when precisely ONE state (Oregon) requires that its attorneys carry malpractice insurance.]

The Specialness of Legal Issues

The final species of complaint is that legal issues are just far too complex for one-size-fits-all solutions to address. This is so frustratingly wrong it hurts. The bottom line is that most consumer legal issues are simple and straightforward, and thus CAN be met with cookie-cutter solutions, and for many of these consumers such solutions are superior to working with an attorney. 2

For more detail on why this is so, read my piece on why lawyers need to embrace mediocrity, or Bill Henderson’s excellent take on consumer perspective and how expert systems – like LegalZoom – are often the optimal solution for routine legal issues.

I have no idea if DoNotPay is any good, but I applaud any and all good faith efforts to empower consumers to better address their legal needs.

And as for attorneys, I’d like to see a lot more focus on building the value proposition for hiring a lawyer (including adopting attorney-centric expert systems to better and more cost-effectively serve consumers with routine legal issues) than trying to exclude better DIY tools.

Notes:

  1. And consider, too, one of the fundamental reasons why this matters: consumers know the difference between relying on a DIY resource – even a detailed, interactive one – and talking to a trained advisor. Their expectations are a big part of the reason why special duties attach when a client relationship of trust and reliance is created.
  2. Yes, exceptions abound, which is why lawyers stay employed. But letting these exceptions lead you to believe that ALL legal issues require custom advice is to succumb to a massive case of survivorship bias.

ABA Tweaks the Ad Rules

The ABA House of Delegates has now approved a significant number of changes to the attorney advertising rules.

If I sound less than excited about that, it’s because the changes don’t amount to much. As I wrote at the beginning of the year, the amendments fail to address the litany of constitutional, antitrust, and plain bad-for-the-public problems inherent within the Rules.

The rules as adopted DID tweak the definition of “recommendation,” removing an earlier change that would have defined “recommendation” even more broadly than in the current rules. But alas, it keeps the existing definition and adds a caveat that is surely going to cause even more trouble:

A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities. Directory listings and group advertisements that list lawyers by practice area, without more, do not constitute impermissible “recommendations.”

Having been through the meat grinder of multiple Bar ethics committees trying to evaluate the “ethics” of innovative new advertising and legal services delivery models, I can guarantee you this: a whole bunch of overbroad and unconstitutional interpretations of the ad rules are going to turn on the “without more” in the comment above.

I know that many of those who pushed these changes through agree that far more change is needed (including the wholesale elimination of Rule 7.2), but believed that the path forward was through this kind of incremental change. They may well be right that this is the best path to getting the Rules where they ultimately need to be. But forgive me if I lack any enthusiasm about these amendments.

Although if anyone wants suggestions about the NEXT set of changes, I’ve already prepared a helpful list.

Supreme Court Closes in on Regulation of “Professional Speech”

The facts that underlay NIFLA v. Becerra are ugly in a vaguely dystopian way. One one side, you’ve got “Crisis Pregnancy Centers,” outfits that reach out to pregnant women in extremis and offer them counseling and a variety of other resources. Oh, alongside a heaping helping of MY SWEET LORD JESUS and a big vacant hole where one pregnancy-resolving solution, abortion, might lie. On the other side? An overweening state government that has found a “solution” to Crisis Pregnancy Centers, and it is “force them to tell pregnant women that hey, abortion is an option – and the state might pay for it!”

So yeah: religion-fueled deception, or nanny state compulsion? Absent an uber-partisan leaning to one side or the other (a leaning that allows you to look past manipulation of the vulnerable or government-mandated ventriloquism), you’re not going to see any angels here.

However, as we’ve got expansive free speech rights here in the US of A, the balance lies heavily on the side of the bible-thumping manipulators. The “more speech” solution we’ve arrived at counts on more information in the marketplace of ideas – not the heavy hand of government intervention. And that goes for compelled speech as well. While the government can compel certain speakers to communicate all sorts of factual information (think warning signs, food labeling, some disclosure requirements), the First Amendment prevents the state from going further and requiring that speakers transmit less-factual, more-controversial messages. So it’s not surprising that California lost on this one.

What interests me about the case – and why I wrote about it when it was at the Circuit level – is the implications it has for lawyer regulation.

Implication 1: Many state bar rules contain extensive disclosure and disclaimer requirements. Some of these – such as requirements that contingent fee advertising disclose that clients may have to pay costs and court fees – are purely factual information that directly goes to the terms under which the advertised service is being offered. In these narrow circumstances, Bars have ample room to regulate. The standard under Zauderer v. Ohio is even more lax than the intermediate scrutiny applied to other forms of commercial speech regulation: such disclosure mandates will be permitted as long as they are not “unjustified or unduly burdensome.”

But as with California, some regulators have viewed this as license to impose all manner of disclaimer requirements. New Jersey requires that any comparative lawyer advertising be disclaimed with “No aspect of this advertisement has been approved by the Supreme Court of New Jersey;” 1 New York requires that that attorneys advertising that they have been certified as a specialist by another state do so only when such statement is accompanied by a disclaimer admonishing that “Certification granted by the [identify state or territory] is not recognized by any governmental authority within the State of New York.” 2; and Pennsylvania seems to have require disclaimers for all manner of advertising. 3

A big part of the problem is that courts often miss the nuance that the lax Zauderer standard doesn’t apply to ALL compelled speech. NIFLA v. Becerra makes this explicit, pointing out unequivocally that the standard only applies to disclosure mandates limited to “purely factual and uncontroversial information about the terms under which . . . services will be available.” What’s more, the court goes on to note that even basic factual disclosures must be supported by some showing that the disclosure is necessary to remedy a “potentially real not purely hypothetical” harm.

Newsflash: many Bar disclaimer requirements go well beyond the “purely factual and uncontroversial” – and they sure as hell aren’t supported by any evidence that justifies the speech compulsion. Will this be the impetus Bars need to clean up their regulations?

Implication 2:  More interesting is the Court’s handling of “professional speech.” This category of expression is one of the few remaining holes in First Amendment jurisprudence. Despite the widespread regulation of professional speech (and consider that UPL restrictions are nothing more than a form of speech regulation), there are NO Supreme Court cases addressing how such speech can be regulated. 4 In NIFLA, the Ninth Circuit found that the notices at issue  were professional speech, and – apparently finding a new category of speech regulation – determined that such regulation must meet intermediate scrutiny.

The Supreme Court, however, wasn’t having it:

“But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.” [citations omitted]. And it has been especially reluctant to “exemp[t] a category of speech from the normal prohibition on content-based restrictions.” United States v. Alvarez, 567 U. S. 709, 722 (2012) (plurality opinion).

. . . In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. We do not foreclose the possibility that some such reason exists. We need not do so because the licensed notice cannot survive even intermediate scrutiny.”

While it’s a little disappointing the Court didn’t go so far as to say “there is no First Amendment exception for professional speech,” this decision should make clear that professional speech regulation is at least subject to intermediate scrutiny. For the Bars, it’s yet another reminder of the pressing need for a more orderly, open, evidence-based, and – dare I say it? – professional regulatory process to ensure this standard can be met.

Notes:

  1. New Jersey Rules of Professional Conduct 7.1(a)(3).
  2. New York Rules of Professional Conduct 7.4(c)(2).
  3. See Pennsylvania Rules of Professional Conduct 7.2.
  4. Yes, there’s Planned Parenthood v. Casey, but that deals with informed consent requirements, which are considered “speech incidental to conduct.”