Big Tech's defense of its liability shield for content could become a two-front war.

Edge providers already face bipartisan pushback on their Sec. 230 shield from moderation of most third-party content, now a couple more top judges, both Supreme Court Justices, have raised the issue of rethinking the Times vs. Sullivan decision requirement that speech relating to public officials has to show actual malice to be actionably defamatory.

Dissenting from the court's decision not to hear a relevant challenge to Times v. Sullivan, Justice Clarence Thomas said it was definitely time to take a second look at the actual malice standard. "Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires," Clarence wrote.

Also Read: Justice Thomas Says Edge May Need Common Carrier Regs

In his dissent, Justice Neil Gorsuch clearly suggested that means rethinking the blanket liability shield for edge providers as well as traditional publishers.

"What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable....If ensuring an informed democratic debate is the goal, how well do we serve that interest with rules that no longer merely tolerate but encourage falsehoods in quantities no one could have envisioned almost 60 years ago?," he asked.

"Not only has the [actual malice] doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted."

Conservatives argue that edge providers have spread falsehoods about them, while liberals argue that the internet has been allowed to abet "big lies" about election security, immigration, and more.

Back in March, Senior Judge Laurence Silberman said that in the 50 years since the decision, the media landscape has changed sufficiently to make the decision "a threat to American Democracy."

He said that Silicon Valley filtered news "in ways favorable to the Democratic party," echoing criticisms from Republican legislators.

Conservative Supreme Court Justice Clarence Thomas has made it pretty clear he would consider applying common carrier regulations to dominant edge providers like Google and Facebook.

"There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner," wrote Thomas this week. "The analogy to common carriers is even clearer for digital platforms that have dominant market share."

Also Read: Big Media Takes on Big Tech

Historically, it was ISPs being branded the gatekeepers and potential suppressors of online speech, in that case access that was equated with speech. But social media companies, with dominant market shares and revenues rivaling the GDP of many countries, and the ability to control access to their dominant platforms, are now under the magnifying glass as never before.

Thomas has clearly been pondering, as have many in Washington on both sides of the political spectrum, whether edge providers have gotten sufficiently powerful that the dominant ones need to play by a new set of rules, or in this case an old one.

Thomas wrote a lengthy concurrence to the Supreme Court's less-than-a page decision to remand as moot a challenge to President Trump for blocking some responses to his Twitter account. The President was sued by several users he had blocked and the Second Circuit had ruled the President could not do that because the comment threads were a First Amendment-protected public forum. But since Trump is no longer President, the Supreme Court vacated the Second Circuit decision.

Also Read: Klobuchar Introducing Big Tech Antitrust Bill

But Thomas, noting that Twitter had done its own blocking by pulling Trump permanently off its platform, wanted to discuss the oddity of calling something a public forum when a private company can pull the plug on it for any reason or no reason at all.

That control clearly troubles Thomas. "Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties," he writes, then suggests there are antitrust issues that have flown under the radar, which puts him in the same camp as Democratic senator Amy Klobuchar (D-Minn.), chair of the powerful Senate Antitrust Subcommittee.

Also Read: Attorney General Pledges Strong Antitrust Enforcement

"Similar to utilities, today’s dominant digital platforms derive much of their value from network size," writes Thomas. "The Internet, of course, is a network. But these digital platforms are networks within that network. The Facebook suite of apps is valuable largely because 3 billion people use it. Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry."

He says that gives companies with only a few principal players, Facebook's Mark Zuckerberg, for example, and Larry Page and Sergey Brin at Google, for another--both examples Thomas cites--"enormous control over speech."

As to the argument both companies make that they face lots of competition--an argument that does not carry much weight on either side of the aisle on Capitol Hill these days--Thomas isn't buying it: "It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is."

And while the Second Circuit ruled that the then-President had cut off protected speech using Twitter's tools, "if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms."

Thomas said that is a First Amendment issue that the court did not get to wrestle with given that the Second Circuit decision was vacated due to the change in administrations, but he signaled it would likely need to come to grips with it in some other context. He said the extent to which that edge provider power matters in relation to the First Amendment "raise[s] interesting and important questions."

The critics of Section 230, and they have been multiplying in recent weeks, have a friend in high places: the U.S. Supreme Court.

Justice Clarence Thomas has weighed in strongly on the side of those who argue the lower courts have stretched the section beyond its original statutory meaning, something judicial conservatives, which would include Thomas, have issues with in general. He may even have a like mind in the judge likely to become newest member of the court.

Thomas has an issue with Section 230 specifically, and is rooting for an opportunity to take it up in the Supreme Court. His commentary on the Hill and by FCC chairman Ajit Pai as the issue burned hot in the runup to the Nov. 3 election.

Section 230 is the provision of the Communications Decency Act that grants social-media sites like Facebook and Twitter immunity from civil liability for how they choose to moderate third-party content, either taking down content some might argue should stay up, or leaving up content that others think should come down. It’s actually the only provision left after the rest of the act was struck down by the courts.

Wide-Ranging Effects

Changes to the provision could affect not only social-media giants, but the comment sections on TV station websites and internet service providers that arguably are covered under the “computer services” definition of those subject to the section.

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The FCC has signaled it plans to follow President Donald Trump’s lead and “clarify” the section, apparently in a way that will regulate third-party content within Section 230. That will almost certainly be taken to court by tech giants who have plenty of money to wage a legal war and who have argued that if they become liable for social media content on their sites, it could chill speech or blow up their business models entirely.

That means the issue could well wind up in the Supreme Court.

The issue has become a flashpoint because it has driven political opposites together in questioning whether tech giants need or should get that blanket immunity, and whether that shield has been used to protect sex trafficking, meddling in elections, censorship and more. But it has also divided them over whether the section is being used to censor conservative speech by the liberal-leaning Silicon Valley set.

The president, in part driven by his ire at Twitter for flagging and burying some of his tweets as violations of its policies against misleading speech, wants Section 230 reined in or eliminated. But Hill Democrats have issues with the section as well.

And so, apparently, does Justice Thomas.

Thomas outlined his issues in a lengthy commentary on the Supreme Court’s decision not to hear an appeal of a case involving Section 230. Thomas actually agreed the court should not hear that case, which dealt with whether the section provided immunity for content blocking technology, but apparently felt strongly enough about the immunity for content blocking itself to weigh in at length — usually the court simply releases a list of appeals it is denying, called the “cert” list, with no explanation.

But Thomas, who is reticent in oral argument, is not so in his periodic cert explanations.

Thomas said he was writing to explain “why, in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by internet platforms.” 

He clearly feels it does not. “Adopting the too-common practice of reading
extra immunity into statutes where it does not belong, courts have [granted] sweeping protection to Internet platforms,” Thomas said.

He argued that “paring back the sweeping immunity courts have read into Section 230” would not ipso facto lead to defendant liability. “It simply would give plaintiffs a chance to raise their claims in the first place,” he said.

On the other hand, he said, extending the clause beyond its statutory underpinnings, as he argues has happened, has “serious consequences.”

Critics of Thomas’s view see serious consequences as well.

Holding websites liable for content they edit in any way, as Justice Thomas proposes, could, conversely, discourage websites from attempting to make hard calls, such as by blotting out objectionable words, including racial epithets, while leaving other content up,” said Berin Szóka, senior fellow at tech policy think tank TechFreedom, in reaction to what he called Thomas’ unwarranted judicial commentary.

RELATED: Barrett Would Consider Cameras in High Court

Attorney Floyd Abrams, who has argued over a dozen cases before the Supreme Court, agrees that kneecapping Section 230 would definitely chill speech. “The easiest way that the Twitters of the future can avoid problems like this is not to fact check, no matter how false the information is, no matter how outrageously false the information is,” he said in an interview with Sirius XM radio following release of the executive order back in May.

Thomas may have support from the judge expected to become the court’s newest member. 

Topic at Barrett Hearings

During her Supreme Court confirmation hearing Sen. Josh Hawley (R-Mo.) tried to get Judge Amy Coney Barrett to weigh in on the section, citing Thomas’s comments. 

Citing Thomas, Hawley said that the courts, at the behest of Big Tech, had dramatically rewritten the section, including changing the liability standards and the distinction between publisher and distributor liability, and extending it to product defect claims.

Barrett said she had not ruled on a Section 230 case, but when asked, in general, what she thought the “danger” was of courts departing from statutory text and substituting their own judgment, she weighed in. 

Barrett said that without respect to the specific section, the danger of courts going beyond the language of statute was that it “subverted the will of the people.” She said that since judges are not elected and serve for a lifetime, if they misconstrue or bend statutes to their idea of what would be good public policy, then it deprives the people of the chance to express the policies that they want through the democratic process."

Hawley said he was convinced that was what had happened with the courts and Section 230. 

FX on Tuesday (Feb. 2) will premiere a new, scripted series focused a true-to-life, high-profile criminal trial with racial overtones: specifically, the case of an African-American man accused of murder amid the shadow of alleged police misconduct.

It’s a scenario that might have been ripped from today’s headlines, but FX’s The People v. O.J. Simpson: American Crime Story takes its cue from the trial of the former National Football League star, held more than 20 years ago.

As issues of race continue to influence the country’s discourse on politics, crime and punishment and entertainment — the recent flap over the lack of diversity in nominations in high-profile Oscar categories comes to mind — cable networks look to tap a growing interest in scripted content that reflects real-life African-American stories and people both past and present.

RELATED:Channeling Cochran, 20 Years Later: Courtney B. Vance on How Time Will Bring Perspective to ‘The People v. O.J. Simpson’

UNDER-TOLD TALES

From the highly-anticipated People v. O.J. Simpson, to History’s upcoming remake of Roots to WGN America’s Underground, which depicts slaves escaping along the 19th century’s “Underground Railroad,” networks are offering true stories that most viewers will recognize, but haven’t been fully explored either on the small screen or in highschool history books.

In many cases, they feature common threads that tie into the complex issues of race facing the nation today.

“Black is the new black,” Stephen Hill, BET’s president of programming, said. “There’s a variety of stories being told on a lot of different platforms, so it’s an exciting time for this kind of television, and it makes everyone step their game up.”

Indeed, original series and movies featuring real-life African-American themes have recently garnered both ratings success and industry awards:

• HBO’s Bessie took home four 2015 Emmy Awards last September, including one for best television movie, and garnered Golden Globe, Critics’ Choice, Emmy and Screen Actors Guild award nominations for lead actress Queen Latifah’s portrayal of blues singer Bessie Smith.

• Lifetime’s Jan. 23 original movie Toni Braxton: Unbreak My Heart, a biography of the popular contemporary rhythm and blues singer, drew 3.6 million viewers and was the most-watched original cable movie among adults 25-54 and women 18-49 since Whitney, Lifetime’s Whitney Houston biopic, in January 2015.

• Book of Negroes, BET’s six-part miniseries airing in February 2015, drew more than 13 million viewers across multiple platforms during its run. It was also the most-watched miniseries by African- American audiences across key demos.

Another half-dozen cable original series, miniseries and movies based on true-life African-American stories are slated to debut later this year or are in development.

CRIME, PUNISHMENT, RACE

As entertainment projects featuring mainly African-American casts gain critical and audience success, there’s been more interest in shows with historical themes related to the black experience in America, executives said.

“If you look at the landscape today, TV shows like Empire to theatrical films like Creed and Straight Outta Compton have been huge commercial successes,” FX Networks and FX Productions CEO John Landgraf said. “I think there’s now a greater willingness to embrace more content with African-American themes and perspective.”

Shows such as The People v. O.J. Simpson appeal across audience demographics because they touch on hot-button issues of crime, punishment and race that the U.S. is still wrestling with, Landgraf said.

Viewers are also fascinated by true stories that challenge the perceptions and realities of the criminal justice system, as evidenced by interest in such shows as HBO’s The Jinx and Netflix’s Making of a Murderer.

“I think O.J. is about this moment in time right now, and the debate going on in the United States about how equitable our society is or is not, and includes a specific focus inside the debate about the equity within the criminal justice system,” Landgraf said. “In general, we’re interested in the weakness and the strengths of our own criminal justice system. They speak to the flaws of our system and potential police misconduct, but also, frankly, to the weaknesses of juries as well.”

TV movies like Bessie or HBO’s upcoming Confirmation — which depicts Anita Hill’s sex-discrimination charges levied during the 1991 Senate confirmation hearings of Supreme Court Justice Clarence Thomas — are strong stories of a type that has received little TV fanfare, but with universal storylines that appeal to all viewers, HBO Films president Len Amato said.

UNDERSERVED AUDIENCES

It also helps that these shows appeal to a still-underserved African- American audience that watches more TV than any other ethnic group. African-Americans watched 43 hours of live TV per week during the second quarter of 2015, compared with 24 hours by Hispanics and 16 hours for Asian-Americans.

“First and foremost, people are looking for a good story, because those are color-blind,” Amato said. “Then, you’re reaching audiences that are underserved. Even if you don’t have a progressive bone in your body that cares about diversity, just on that level alone, where the rubber meets the road, it’s good business.”

Plus, younger viewers who might not know the gritty details of the O.J. Simpson saga or about the Underground Railroad can identify with the storylines and plots.

“So many people don’t know the Anita Hill story — it’s not exactly something that’s pushed in the history books — so if it brings the story to a new generation and they gain some insight, or they take pride in the fact that a situation like this could lead to empowerment, [that] is good,” Amato said.

The trial of O.J Simpson, as portrayed in the FX series (see related Q&A), set the stage for much of what we see on TV today, Landgraf said.

“It’s the mother of all true reality stories; it is the beginning of the 24-hour news cycle and of crime as infotainment,” he said. “Most young people believe that the most fascinating, crazy stuff that’s ever happened in the world of reality television has happened in their lifetime and, when they see this, they’re going to realize that many of the things that happened during this trial [are] still the craziest thing that’s ever happened to reality TV.

“It gave rise to the media environment in which young people have lived their entire lives,” Landgraf said.

Underground (premiering Wednesday, March 9) was more about telling a good story than teaching a history lesson, WGN America president and general manager Matt Cherniss said.

Though the characters in Underground are fictional, the series stays true to the documented history surrounding the Underground Railroad, the 19th-century network of secret escape routes and safe houses used by runaway slaves.

“Obviously, it’s a controversial time period and it’s a subject matter that’s sensitive and takes a high level of execution and care when you approach it,” Cherniss said. “But when I read the script, I just read a great adventure and not a period piece.

“Too often to this point, people have looked at that particular time period and felt that it needed to be honored in such a way that there wasn’t an opportunity to insert a bit of genre into the storytelling,” he added.

The fact that the pilot includes a Kanye West song — procured under the watchful eye of executive producer John Legend — also can’t hurt in reaching millennials, even if the series is set some 150 years before the hip hop superstar was born.

MORE IN THE PIPELINE

As demand across numerous platforms for diverse, scripted content continues to grow, networks see room to make more stories based on what they call the treasure trove of good, true-life African-American themed stories that have yet to be told.

Along with History’s retelling of the classic miniseries Roots, based on the novel by Alex Haley, HBO in May will debut the original movie All the Way, which chronicles the relationship between President Lyndon B. Johnson and Dr. Martin Luther King in the midst of the Civil Rights Movement.

BET is developing biographical movies on the R&B music group New Edition and on former South African president Nelson Mandela.

“People like to know that what they’re seeing has some basis in the truth,” BET’s Hill said. “Also, with these projects you get to see what’s behind the curtain of stories that you already know the beginning, middle and end of.”

Added WGN America’s Cherniss, “Having many more outlets out there creating original content and looking at things that are distinctive as far as the subject matter is concerned does provide a broader landscape for different stories to be told.”

Black History Month: What to Watch

A sampling of shows set to air in February

Feb. 1

Change Agents: History in the Making(short films)

TV One

Feb. 2

The People v. O.J. Simpson: American Crime Story(limited series)

FX

Feb. 3

Preachers of Atlanta(reality series)

Oxygen

Feb. 5

47th Annual NAACP Image Awards

TV One

Michael Jackson’s Journey From Motown to ‘Off The Wall’(documentary)

Showtime

Feb. 9

Here We Go Again (series)

TV One

Feb. 10

The Next 15(reality series)

TV One

Feb. 13

SportsCenter on the Road From Hampton University(special)

ESPN

Feb. 14

Rise Up: SportsCenter Black History Month Special(special)

ESPN

Feb. 24

About the Business(reality series)

BET

Feb. 29

Major League Legends: Hank Aaron(special episode of docuseries)

Smithsonian Channel

Hate in America(documentary)

Investigation Discovery

Also This Month:

• Disney XD and Disney Channel will run a documentary-style interstitial that illustrates the bravery of young African-Americans through the lens of Cameron Boyce (Descendants) and his timeless hero, Jo-Ann Boyce — his grandmother, who was one of the Clinton 12, a group of 12 black Tennessee teens who were the first to integrate into an all-white high school in the South in 1956, following the Supreme Court’s ruling in Brown v. Board of Education.

• Music Choice will offer a package of music videos dubbed “The New Classics,” including videos from Drake, Fetty Wap and Rihanna, as well as videos from the soundtracks of popular black movies such as Straight Outta Compton.