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.

In what is being billed as a bicameral effort (that would be both Houses of Congress rather than both parties), a group of Republican Senators and House members, including Sen. Chuck Grassley (R-Iowa), chairman of the powerful Judiciary Committee, have introduced a bill that takes aim at the Chevron deference accorded federal agency expertise.

“For too long, unelected bureaucrats have relied on Chevron to expand their own authority beyond what Congress ever intended.  This has weakened our system of checks and balances and created a recipe for regulatory overreach," said Grassley, of the Separation of Powers Restoration Act. "The Constitution’s separation of powers makes clear that it is the responsibility of Congress, as the People’s representative, to make the law. And it’s the job of the courts – not the bureaucracy – to interpret the law. This bill helps to reassert those clear lines between the branches. By doing so, it makes the government more accountable to the People and takes a strong step toward reining in the regulators,” Grassley said.

The bill would only tweak the language in the U.S. Code on judiciary review of agency actions, but it makes a bid difference.

The language currently reads: "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action."

The bill would change "all relevant questions of law, interpret constitutional and statutory provisions" to "de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules."

"De novo" means deciding from the beginning, or starting over, rather than starting from a point of deference to am agency judgment. The idea of the bill, as Republicans see it, is to take an agency's thumb off the scale of justice.

In addition to Grassley, others introducing/backing the bill included Sens. Orrin Hatch (R-Utah), John Cornyn (R-Tex.), Mike Lee (R-Utah), and Ted Cruz (R-Tex.).

The issue of Chevron has often come up regarding how the FCC exercises its regulatory authority.

Chevron is the deference that has been accorded agencies—per Supreme Court precedent—to interpret vague statutes. New Supreme Court Justice (and Republican appointee) Neil Gorsuch, for one, has argued that while agencies should get deference for technical expertise in their subject areas, it should be up to the courts to do the clarifying of vague statues, and that giving federal agencies that power runs into equal protection and separation of powers issues. The issue was explored during Gorsuch's confirmation hearings, presided over by Grassley.

Democrats fear that weakening Chevron is a way to weaken the power of those agencies to protect air, water, privacy and much more—critics of the FCC's broadband regulation under former Democratic chairman Tom Wheeler, for example, argued that the commission was exceeding its authority in its interpretation of statute.

After millions of dollars in TV ad time, four days of hearings, and the change of long-standing Senate rules, Neil Gorsuch, President Donald Trump's nominee to succeed the late Antonin Scalia as associate justice on the Supreme Court, has been confirmed.

The vote was 54 to 45.

The Senate Judiciary Committee voted along sometimes bitterly divided party lines (11 to 9) April 3 to approve Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit, for the seat, which has been empty since last February.

Related: FCC Asked to Review Neil Gorsuch Ads

Gorsuch was criticized by Democrats, and praised by Republicans, for the problems he has raised about the extent of Chevron deference generally accorded agencies—per Supreme Court precedent—to interpret vague statutes. He has argued that while agencies should get deference for their technical expertise in their subject areas, it should be up to the courts to do the clarifying of vague statues, and that giving federal agencies that power runs into equal protection and separation of powers issues.

Democrats fear that weakening Chevron is a way to weaken the ability of those agencies to protect the air, water and privacy—critics of the FCC's broadband regulation under former Democratic chairman Tom Wheeler argued that it was exceeding its authority in its interpretation of statute.

Republicans see Gorsuch's doubts about Chevron as a commitment to protecting the separation of powers and keeping all those powers within their appropriate limits.

"By faithfully enforcing the boundaries among branches of the government and the power of the federal government in our lives, this Justice will ensure that the law protects our liberties," said Senate Judiciary Committee chairman Charles Grassley (R-Iowa) just before the vote.

Gorsuch said that if the issue of overturning the Chevron deference doctrine came up in his role as a justice, he would "try to come at it with as open a mind as a man could muster."

The judge during his four-day confirmation hearing stood up for the value of anonymous speech when grilled about the Citizens United case and said another thing he would keep an open mind on was cameras in the court.

The Senate Judiciary Committee vote on the nomination of potential Supreme Court associated Justice Neil Gorsuch will have to wait at least another week.

The vote on his and two other nominations had been planned for Monday (March 27), but any minority member can delay the vote of any nomination the first time it is on the agenda and Chairman Charles Grassley (R-Iowa) indicated the minority had made that request.

Ranking member Dianne Feinstein (D-Calif.) pointed to the failure of Republicans to vote on the nomination of Merrick Garland to the seat opened by the death of Antonin Scalia, the seat Gorsuch was nominated to, as one sore point. During the hearing, she read out the names of some of nominees who got hearings and votes in the final year of a presidency, the reason Republicans gave for not holding a hearing on Garland after Scalia died in February of last year.

She said there was lots of time to vet and vote a nominee.

Another sore spot was the spending of millions of dollars in dark money on advertising either to promote Gorsuch or oppose Garland. "That sends a loud signal to me," she said, a signal that the Republicans ought to take note of as well in understanding the "depth of feeling" on her side about the nominee and the process.

"This [dark money] puts this side, in my view, in just a terrible position," she said, suggesting it creates a situation where the people who spend those tens of millions of dollars in dark money should think twice about it because it might just be "counterproductive."

The committee will hold another business session next Monday (April 3)  at 10 a.m. to vote on the nominations, where Gorsuch's nomination is expected to be approved.

Gorsuch has been a judge on the Tenth Circuit Court of Appeals, where he has written about his issues with Chevron Deference, the Supreme Court precedent for allowing agencies to interpret ambiguous statutes, something Gorsuch has suggested should be left to the courts given separation of powers and equal access issues, points he made in his four-day nomination hearing.

 He also signaled during those hearings that he would have at least an open mind toward cameras in the High Court, though the said it was something he had not thought a lot about.

 Gorsuch refused to be drawn into a debate about dark money and disclosure of political ads during questioning by Sen. Sheldon Whitehouse (D-Rhode Island) during his confirmation hearings.

 Whitehouse pointed to the $10 million ad campaign being mounted by supporters of his nomination, but whose actual backers had not been disclosed. The senator asked Gorsuch if there is a public interest in knowing who was contributing to that campaign. The veteran U.S. appeals court judge responded that if Congress wanted there to more ad disclosure, it had "robust authority" to do so, but that he was not going to be drawn into politics and that it was not his fault if Congress had not passed such a law requiring the disclosure of so-called dark money.

 Various Democratic legislative attempts to boost disclosure since the Citizens United decision have failed to gain traction, including with enough Democrats.

 Gorsuch did say that that there was a value in anonymous speech, which the Supreme Court had found in a case where it concluded that disclosure could be a weapon to help silence opposition.

WASHINGTON — Supreme Court nominee Neil Gorsuch refused to be drawn into a debate about dark money and disclosure of political ads during questioning by Sen. Sheldon Whitehouse (D-Rhode Island).

Whitehouse pointed to a $10 million ad campaign being mounted by supporters of his nomination, but whose actual backers had not been disclosed. The senator asked Gorsuch if there is a public interest in knowing who was contributing to that campaign.

The veteran U.S. appeals court judge responded that if Congress wanted there to more ad disclosure, it had "robust authority" to do so, but that he was not going to be drawn into politics and that it was not his fault if Congress had not passed such a law requiring the disclosure of so-called dark money.

Various Democratic legislative attempts to boost disclosure since the Citizens United decision have failed to gain traction, including with enough Democrats.

Gorsuch did say that that there was a value in anonymous speech, which the Supreme Court had found in a case where it concluded that disclosure could be a weapon to help silence people.

Whitehouse said that the Supreme Court had gotten into politics through the Citizens United decision — which allowed corporate funding of political ads — but Gorsuch said he saw it as judges presented with a case doing their best to decide it on the facts and the law.

He said judges make half the people unhappy 100% of the time and he did not question their motives. Whitehouse said in the case of Citizens United, it was more like making 90% of the people unhappy.

Whitehouse pressed the judge on whether the $10 million campaign pushing his nomination was of concern.

A slightly testy Gorsuch said there were a number of things he regretted about the nomination process, including the fact that Byron White's confirmation hearing took 90 minutes and he was allowed to smoke during it, as well as the fact that Gorsuch was putting his family through it. But he said that Congress made the laws, and if they wanted to pass a disclosure law, they could.