Social Media Firms Not Permitted to Censor User Content

• Pages: 25-26
• Date: 01 July 2024
• Author: Jeffrey M. Marchese
• Subject Matter: Civil Law

To prevail on a legal malpractice

claim, South Dakota requires strict priv-

ity, the federal appellate court noted.

Hence, a plainti must f‌irst prove “the

existence of an attorney-client relation-

ship.” This strict privity rule stems from

“the conf‌idential nature of the relation-

ship” between the attorney and the cli-

ent.

The Eighth Circuit pointed to prec-

edent in other state courts. Courts

in Iowa, Minnesota, Missouri, and

Nebraska also prohibit the assignment

of legal malpractice claims.

“There’s a reason that the over-

whelming majority of states do not

allow assignment of legal malpractice

claims,” notes Nicole M. Reid, Mount

Dora, FL, cochair of the Section’s

Attorneys’ Liability Subcommittee of

the Professional Liability Litigation

Committee. “The sanctity of the attor-

ney-client relationship as a whole would

be at risk if attorneys could be sued by

virtually anyone who might conceivably

be a benef‌iciary (intended or not) of

the attorney’s services to their client,”

Reid explains.

Clients should be the only persons

to decide whether a malpractice claim

is warranted. “To allow open season on

malpractice claims wouldirreparably

erode the attorney-client privilege and

could compromise an attorney’s duties

to zealously advocate for their clients.

It would rob the attorney’s actual cli-

ent of the decision whether to sue their

attorney for malpractice,” Reid cau-

tions.

Thompson is actually “counter to

the trend,” notes Alan R. Jampol, Los

Angeles, CA, cochair of the Section’s

Attorneys’ Liability Subcommittee of

the Professional Liability Litigation

Committee. “The general rule is that

any claim is assignable—it is a piece

of property,” he continues. Courts that

prohibit the assignment of malpractice

claims generally rely on public policy

rationales. But issues of “public policy

are changing,” Jampol adds, permitting

assignment of such claims more often.

Reid envisions scenarios in which a

nonclient should be permitted to sue a

lawyer for malpractice. But “they abso-

lutely need to be the exception, not

the rule,” she emphasizes. For example,

there are situations “where an intended

benef‌iciary of a will gets left out due to

a lawyer’s negligent mistake,” illustrates

Reid. “Although the benef‌iciary does

not have a client-attorney relationship

with the drafting lawyer, they are cer-

tainly an intended benef‌iciary of the

lawyer’s legal services,” she explains.

“If the mistake is not caught until

after the client passes away, that heir’s

only recourse is to sue for malpractice

as an intended third-party benef‌iciary

of the client’s contract for legal ser-

vices,” Reid contends.

Social Media Firms

Not Permitted to

Censor User Content

By Jerey M. M archese, Litigation

News Contributing Editor

A federal court has upheld a state stat-

ute prohibiting social media companies

from censoring user content based on

the opinions of the user. The key issue

was whether user content is published

by the social media platform or by the

user. In NetChoice LLC v. Ken Paxton,

the court held that user content is pub-

lished by the user, and it enforced the

statute preventing content-based cen-

sorship of that user by the platform.

The Texas legislature passed House

Bill 20, which “generally prohibits large

social media platforms from censor-

ing speech based on the viewpoint of

its speaker.”Trade association plaintis

representing companies that operate

social media platforms sued the Texas

attorney general before the law went

into eect, seeking injunctive relief.

The U.S. District Court for the Western

District of Texas initially issued a prelim-

inary injunction enjoining enforcement

of the statute.

In a split decision, the Court of

Appeals for the Fifth Circuit reversed

the grant of the injunction and held that

platforms are not entitled to censor

speech based on the user’s viewpoint,

thereby allowing immediate enforce-

ment of the statute.

The First Amendment generally

prevents government from enact-

ing laws “abridging the freedom of

speech, or of the press.” The court of

appeals in NetChoice noted that “the

First Amendment’s Speech and Press

Clauses ‘also protect[s] the freedom to

make well-intentioned statements of

one’s thoughts, particularly on matters

of public concern.’” It reasoned that the

First Amendment provides “no support

for the Platforms’ claimed right to cen-

sor”; and the statute “does not regulate

the Platforms’ speech at all; it protects

other people’s speech and regulates

the Platforms’ conduct.” The court

found that the statute “does not chill

speech; if anything, it chills censorship.”

The NetChoice court observed that

its decision was reinforced by 47 U.S.C.

§ 230, which ref‌lects Congress’s judg-

ment that platforms are not “speaking”

when they host other people’s speech.

The court opined that its holding was

also supported by the common carriers’

doctrine, which vested the Texas leg-

islature with the power to prevent the

platforms from discriminating against

Texas users. Ultimately, the NetChoice

court held that House Bill 20 was con-

stitutional because it neither compelled

nor obstructed the platforms’ own

speech in any way and because the

platforms were not newspapers that

could censor user content.

The court in NetChoice recognized

a federal circuit split concerning First

Amendment issues regarding social

media platforms, citing a decision from

the Court of Appeals for the Eleventh

Circuit, NetChoice, LLC et al v. Attorney

General of Florida. In May 2021, Florida

enacted SB 7072, which sought to

protect journalistic organizations and

political candidates from censorship

by large social media platforms. The

Eleventh Circuit in that case held that

platforms challenging SB 7072 were

entitled to a preliminary injunction

against most of that statute’s provi-

sions.

ABA Litigation Section leaders

believe this circuit split may cause the

U.S. Supreme Court to weigh in on the

issue, but not all agree on how the rift

will be resolved. “The U.S. Supreme

Court could weigh in on the topic now

that there is a split amongst the cir-

cuits,” predicts Hon. Carlos E. Moore,

Grenada, MS, cochair of the Litigation

Section’s Civil Rights Committee,

and “the Court would follow more in

line with the Fifth Circuit versus the

Eleventh Circuit,” he suggests.

Other Section leaders predict a dif-

ferent outcome. “The U.S. Supreme

Court would likely be more in line

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