Another Strike Against § 230 of the Communications Decency Act: Courts Allowing § 230 to Trump Federal and State Public Accommodations Protections

SAMUEL ESTREICHER, SAMANTHA ZIPPER

NYU law professor Samuel Estreicher and 2L Samantha Zipper describe how several courts have invoked Section 230 of the Communications Decency Act as a basis for limiting rights against discrimination in public accommodations. Estreicher and Zipper argue that as American society moves increasingly online, § 230 must be read more narrowly, with goals of safeguarding individual civil rights in an already prolific internet sector.

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Agudath Israel of America v. Cuomo

Docket: 20-3572

Opinion Date: December 28, 2020

Judge: Park

Areas of Law: Civil Rights, Constitutional Law

On October 06, 2020, Governor Andrew Cuomo issued an executive order directing the New York State Department of Health to identify yellow, orange, and red "zones" based on the severity of COVID-19 outbreaks and imposing correspondingly severe restrictions on activity within each zone. Appellants, Agudath Israel and the Diocese, each challenged the executive order as a violation of the Free Exercise Clause of the First Amendment. Appellants moved for injunctions pending appeal, which a divided motions panel of the Second Circuit denied. Appellants then sought injunctive relief from the Supreme Court, which granted writs of injunction prohibiting the Governor from enforcing the Order's 10- and 25-person capacity limits pending disposition of this appeal. The Supreme Court found that appellants were likely to succeed on the merits, applying strict scrutiny to the Order because it is not neutral on its face and imposes greater restrictions on religious activities than on other activities the Governor considers "essential." In light of the Supreme Court's decision, the Second Circuit held that the Order's regulation of "houses of worship" is subject to strict scrutiny and that its fixed capacity limits are not narrowly tailored to stem the spread of COVID-19. Therefore, appellants have established irreparable harm caused by the fixed capacity limits, and the public interest favors granting injunctive relief. As to the Diocese's appeal, the court reversed and remanded with directions for the district court to issue a preliminary injunction prohibiting the Governor from enforcing the Order's 10- and 25-person capacity limits. As to Agudath Israel's appeal, the court reversed in part and remanded for the issuance of a preliminary injunction as to those fixed capacity limits. The court also vacated the district court's denial of Agudath Israel's motion for a preliminary injunction as to the Order's 25 and 33 percent capacity limits, and remanded or the district court to determine in the first instance whether those limits should be enjoined in light of the Supreme Court's decision and this opinion.

Tangreti v. Bachmann

Docket: 19-3712

Opinion Date: December 28, 2020

Judge: Menashi

Areas of Law: Civil Rights, Constitutional Law

After plaintiff was sexually abused by three correctional officers during her incarceration at a correctional facility, she filed suit against eight prison supervisory officials alleging, inter alia, that they violated the Eighth Amendment through their deliberate indifference to the substantial risk of her sexual abuse by the three correctional officers. The district court applied the supervisory liability test in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), and denied summary judgment and qualified immunity to Defendant Bachmann. The Second Circuit reversed, agreeing with Bachmann that the scope of supervisory liability for deliberate-indifference claims under the Eighth Amendment is not clearly established after Ashcroft v. Iqbal, 556 U.S. 662 (2009), which called the supervisory-liability test into question. The court held that after Iqbal, there is no special test for supervisory liability. Rather, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution. The court also held that for deliberate-indifference claims under the Eighth Amendment against a prison supervisor, the plaintiff must plead and prove that the supervisor had subjective knowledge of a substantial risk of serious harm to an inmate and disregarded it. Finally, the court held that the pretrial record in this case does not support the inference that Bachmann had the required subjective knowledge that plaintiff was at a substantial risk of being sexually abused. The court remanded with instructions to enter summary judgment for Bachmann.

Stagg, P.C. v. U.S. Department of State

Docket: 19-811

Opinion Date: December 28, 2020

Judge: Leval

Areas of Law: Constitutional Law

The Second Circuit vacated the district court's grant of summary judgment for the Department on Stagg's challenge to the constitutionality of a speech licensing requirement imposed by the International Traffic in Arms Regulations (ITAR). The district court concluded that the ITAR's licensing requirement unambiguously did not apply to the categories of speech that Stagg's complaint asserted an intention to undertake, and thus the question whether the provision would be unconstitutional in some applications is moot because none of those provisions applies to what Stagg alleges it intends to do. The court agreed that Stagg's intended conduct is not subject to the ITAR's licensing requirement. Furthermore, the court concluded that this finding rendered Stagg's constitutional challenges moot. In this case, as a result of the district court's and this court's rulings on the ambiguous inapplicability of the ITAR license requirement to Stagg's intended actions, Stagg has no personal stake in its suit and thus fails the test of Article III jurisdiction. Therefore, the court dismissed the district court's judgment and directed that the action be dismissed.