Another California Court Has Now Broken Media Advertising, So The Copia Institute Asked Another California Appeals Court To Fix It

from the one-more-time-into-the-fray dept

A few years ago a California appeals court produced the unfortunate Liapes v. Facebook decision. In this decision, it gave the go-ahead to age discrimination claims under California’s Unruh Act resulting from ads not being served to users of certain ages. It’s a nonsensical application of anti-discrimination law, because ads are not themselves the goods and services that the Unruh Act governs but instead expression. Furthermore, for more than a century American media has been supported by an advertising model that allows advertisers to target audiences based on their demographic information, including their age. It would upend the media ecosystem if doing so can suddenly tempt legal liability, so surely the First Amendment has something to say about applying anti-discrimination law to expressive businesses.

And so should Section 230, because the decision didn’t involve suing the actual advertiser who chose to target certain potential customers, but Facebook itself, even though it was merely acting as a platform intermediating third party-generated content—in this case, the ads that advertisers wanted to carefully direct in a way they thought would get them the most bang for their buck. Intermediating third party-generated content—even advertising content—is a core activity protected by Section 230, and it threatens to upend the Internet ecosystem if platforms are no longer legally able to do it.

But that was then, and back then the Copia Institute submitted an amicus letter urging the California Supreme Court to review the appeals court decision that reached this troubling conclusion. Unfortunately, the Supreme Court did not take up the review, and so the Liapes decision remained on the books, tempting other courts to follow it down its troubling path.

Which a California superior court has now done, this time allowing a similar sort of claim to proceed against Google based on certain users not getting served all the ads that they would have liked to see. Google appealed the decision, and the Copia Institute this week filed an updated amicus submission pointing out the same infirmities with it that we had in the Liapes case, namely that the First Amendment protects the choices speakers make in how to direct their expression to audiences, and, even if it did not, Section 230 still protects platforms handling expression provided by others from anything that might be wrong with that expression, including that it might violate state anti-discrimination law. But the decision by the superior court here, letting these Unruh Act claims to go forward, essentially ignored all of that statutory and constitutional protection that all expressive businesses need, be they traditional media entities or Internet platforms.

This time around we also pointed out yet another reason why that editorial discretion exercised in choosing how to direct speech must be constitutionally protected: because state actors don’t always agree. Some can want speech to be directed one way, and some can want it to be directed in another, and the First Amendment exists to keep expressive entities from getting caught in a tug-of-war between them. Especially because, as this case shows, it may not even be different state entities who disagree; here it is the state of California itself, who on the one hand has one law suggesting it might be illegal to refuse to provide certain speech based on age, but at the same time has been passing a slew of new laws demanding platforms do exactly that: refuse to serve certain expression based on age.

As the Copia Institute has been arguing, both laws are unconstitutional, and this conflict illustrates why the First Amendment must protect the expressive choices about whom to provide what expression to from any such governmental meddling.

Filed Under: 1st amendment, aadc, advertising, california, liapes, section 230, targeted advertising, unruh act

Companies: google