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Online Content Moderation and Government Coercion [May 13, 2022]
From the Document: "In recent years, there has been growing concern about the power of social media companies to control online speech. Some users have tried to assert [hyperlink] that online platforms violated users' constitutional free speech rights by removing users' content or otherwise restricting their ability to post on these platforms. Lower courts have rejected [hyperlink] these claims, citing the well-established principle that private companies are not bound by the First Amendment's Free Speech Clause and therefore holding that the Constitution does not limit their ability to restrict user content. More recent lawsuits [hyperlink], however, have alleged that the government itself has been involved in restricting certain types of content, creating government encouragement or coercion that does implicate constitutional free speech concerns. One high-profile example is a group of lawsuits from former President Trump, initially filed almost a year ago, alleging that Facebook [hyperlink], Twitter [hyperlink], and YouTube [hyperlink] violated his First Amendment rights by banning him from their online platforms. He claimed that the companies were motivated to act based on fear of government regulation, implicating the First Amendment. On May 6, 2022, a trial court disagreed and dismissed his lawsuit against Twitter. (The other two suits remain pending.) While lawsuits bringing similar claims have largely been dismissed, they nonetheless illustrate an ongoing concern about government involvement in private content moderation. This Legal Sidebar explores this issue, explaining the relevant legal background and the significance of recent lawsuits."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Novak, Whitney K.
2022-05-13
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Assessing Commercial Disclosure Requirements Under the First Amendment [April 23, 2019]
From the Introduction: "Disclosure provisions that require commercial actors to convey specified information to consumers occupy an uneasy and shifting space in First Amendment jurisprudence. The First Amendment's Free Speech Clause protects the right to speak as well as the right 'not' to speak, and at least outside the context of commercial speech, courts generally disfavor any government action that compels speech. Indeed, the Supreme Court in 1943 described the First Amendment's protection against compelled speech as a 'fixed star in our constitutional constellation.' Accordingly, government actions mandating speech are generally subject to strict scrutiny by courts, and will be upheld 'only if the government proves that they are narrowly tailored to serve compelling state interests.' However, the Court has also long accepted a variety of laws that require commercial actors to make certain disclosures to consumers, confirming that Congress can compel certain disclosures, even those involving protected speech, without running afoul of the First Amendment. [...] This report begins with a short background on how courts generally view commercial speech under the First Amendment, then reviews in more detail the possible legal frameworks for analyzing the constitutionality of commercial disclosure requirements."
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2019-04-23
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Section 230: An Overview [April 7, 2021]
From the Summary: "Section 230 of the Communications Act of 1934, enacted as part of the Communications Decency Act of 1996, provides limited federal immunity to providers and users of interactive computer services. The law generally precludes providers and users from being held liable--that is, legally responsible--for information provided by a third party, but does not prevent them from being held legally responsible for information that they have developed or for activities unrelated to third-party content. Courts have interpreted Section 230 to foreclose a wide variety of lawsuits and to preempt laws that would make providers and users liable for third-party content. For example, the law has been applied to protect online service providers like social media companies from lawsuits based on their decisions to transmit or take down user-generated content."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Holmes, Eric N.
2021-04-07
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Science and Technology Issues in the 117th Congress [May 5, 2021]
From the Summary: "The federal government supports scientific and technological advancement directly by funding and performing research and development, and indirectly by creating and maintaining policies that encourage private sector efforts. Additionally, the federal government regulates many aspects of S&T [science and technology] activities. This report briefly outlines a key set of science and technology policy issues that may come before the 117th Congress. Many of these issues carry over from previous Congresses, and represent areas of continuing Member interest. [...] S&T-related issues that may come before the 117th Congress are grouped into 10 categories. [1] Overarching S&T Policy Issues, [2] Agriculture, [3] Biotechnology and Biomedical Research and Development, [4] Climate Change and Water, [5] Defense, [6] Energy, [7] Homeland Security, [8] Information Technology, [9] Physical and Material Sciences, and [10] Space. Each of these categories includes concise analysis of multiple policy issues. The material presented in this report should be viewed as illustrative rather than comprehensive. Each section identifies CRS [Congressional Research Service] reports, when available, and the appropriate CRS experts to contact for further information and analysis."
Library of Congress. Congressional Research Service
Gottron, Frank; Humphreys, Brian E.; Bodie, Agata . . .
2021-05-05
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Vacancies Act: A Legal Overview [Updated May 28, 2021]
From the Document: "The Federal Vacancies Reform Act of 1998 (Vacancies Act) generally provides the exclusive means by which a government employee may temporarily perform the functions and duties of a vacant advice-and-consent position in an executive agency. [...] This report first describes how the Vacancies Act operates and outlines its scope, identifying when the Vacancies Act applies to a given office and which offices are exempt from its provisions. The report then explains who may serve as an acting officer and for how long, focusing on the limitations the Vacancies Act places on acting service. Next, the report discusses how the Vacancies Act is enforced. Finally, the report turns to evolving legal issues regarding the application of the Vacancies Act, including a discussion of how other federal laws may limit the Act's reach. Specifically, the report concludes by examining the interaction of the Vacancies Act with agency-specific statutes, the ability to delegate the duties of a vacant office, and constitutional considerations."
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2021-05-28
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Update: Sidewalks, Streets, and Tweets: Is Twitter a Public Forum? [Updated July 9, 2019]
From the Document: "Update: On July 9, 2019, the U.S. Court of Appeals for the Second Circuit issued a decision affirming the trial court's ruling described below. In its opinion, the appellate court concluded that the President had essentially converted the private @realDonaldTrump Twitter account into a government account by using it for official business. The court further held that the President had opened up the 'interactive space' of that platform as a public forum for purposes of the First Amendment by making the account's 'interactive features accessible to the public without limitation.' Consequently, because the First Amendment prohibits viewpoint discrimination in public forums, the court concluded that the President acted unlawfully when he blocked users from these interactive spaces on the basis of the users' viewpoints."
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2019-07-09
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Kennedy v. Bremerton School District: School Prayer and the Establishment Clause [June 30, 2022]
From the Document: "On June 27, 2022, the Supreme Court released a 6-3 decision in 'Kennedy v. Bremerton School District' [hyperlink] that significantly altered Establishment Clause jurisprudence. In ruling in favor of a high school football coach who wanted to pray on the 50-yard line of the football field after games, the Court announced that it had broadly abandoned use of the so-called 'Lemon' test [hyperlink], which had been the basis for church-and-state decisions over several decades but had seemed to fall into disfavor with many Justices on the Court in more recent years. The 'Kennedy' opinion described the 'Lemon' test as 'abstract' and 'ahistorical,' and said [hyperlink] that courts should instead interpret the Establishment Clause by reference to 'original meaning and history.' This Legal Sidebar discusses the 'Kennedy' decision and its implications for the First Amendment's protection of free speech and the free exercise of religion, as well as the First Amendment's prohibition of religious establishment."
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2022-06-30
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Carson v. Makin: Using Government Funds for Religious Activity [July 6, 2022]
From the Document: "When the government decides whether to give public funds to religious entities, that decision can raise constitutional questions [hyperlink] under both of the First Amendment's Religion Clauses. For many years, Supreme Court precedent [hyperlink] focused primarily on whether federal, state, or local governments violated the Establishment Clause by funding religious activity. Accordingly, governments sometimes barred public funds from being given to religious activities or religious groups. In recent years, however, the Supreme Court has made clear [hyperlink] that governments may violate the Free Exercise Clause by barring religious entities from receiving public benefits because of their faith. Under prevailing precedent, then, governments might sometimes be constitutionally or statutorily barred [hyperlink] from giving public funds to religious activities but also cannot [hyperlink] exclude religious entities from eligibility solely because of their religious character. In 'Carson v. Makin' [hyperlink], issued on June 21, 2022, the Supreme Court held that states could not exclude religious schools from an indirect aid program based on the schools' religious use of the funds. This Legal Sidebar explains that decision and discusses possible implications for federal funding, as well as further implications stemming from the Supreme Court's subsequent Establishment Clause ruling in 'Kennedy v. Bremerton School District' [hyperlink]."
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2022-07-06
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Justice Anthony Kennedy: His Jurisprudence and the Future of the Court [July 11, 2018]
From the Document: "On June 27, 2018, Justice Anthony M. Kennedy announced that, effective July 31, 2018, he would retire from active service as an Associate Justice on the Supreme Court of the United States. His decisive role on the Court, particularly since the Roberts Court era began in 2005, cannot be overstated. The Roberts Court era has witnessed the Court issue a number of landmark rulings, many of which have involved matters where the sitting Justices were closely divided. Justice Kennedy typically voted with the majority of the Court in such cases. Since the October 2005 term that marked the beginning of the Roberts Court, Justice Kennedy voted for the winning side in a case more often than any of his colleagues in 9 out of 12 terms."
Library of Congress. Congressional Research Service
Nolan, Andrew; Lewis, Kevin M.; Brannon, Valerie C.
2018-07-11
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Congressional Review Act: Determining Which 'Rules' Must Be Submitted to Congress [July 5, 2018]
"The Congressional Review Act (CRA) allows Congress to review certain types of federal agency actions that fall under the statutory category of 'rules.' The CRA requires that agencies report their rules to Congress and provides special procedures under which Congress can consider legislation to overturn those rules. A joint resolution of disapproval will become effective once both houses of Congress pass a joint resolution and it is signed by the President, or if Congress overrides the President's veto. The CRA generally adopts a broad definition of the word 'rule' from the Administrative Procedure Act (APA), defining a rule as 'the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.'"
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Carey, Maeve P.
2018-07-05
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Can a President Amend Regulations by Executive Order? [July 18, 2018]
"An executive order signed by President Trump on July 10, 2018, raises the question of whether a President--with the stroke of a pen--can amend federal rules codified in the Code of Federal Regulations (CFR). In Executive Order 13843, the President changed the hiring process for administrative law judges (ALJs), 'excepting' them from the competitive service. Somewhat unusually, the order directly amends three provisions in the CFR, rather than directing an agency to amend the regulations. Generally, rules may only be amended through special procedures governed by the Administrative Procedure Act (APA). This process, known as notice-and-comment rulemaking, usually requires advance notice and a period for public comment on proposed rule amendments. As a result, Executive Order 13843 raises the question of whether the President, if otherwise vested with the authority to make rules, could bypass this normal process and directly amend the rule by executive order. Supreme Court precedent suggests that presidential actions, such as executive orders, are not reviewable under the APA. But the APA's procedural requirements still apply to agencies when they act to implement any presidential directives, raising the question of when presidential action ends and when agency implementation begins. This Sidebar explores the scope of the presidential exception to the normal rulemaking process."
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2018-07-18
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Questioning Judicial Nominees: Legal Limitations and Practice [August 30, 2018]
"The U.S. Constitution vests the Senate with the role of providing 'advice' and affording or withholding 'consent' when a President nominates a candidate to be an Article III judge--that is, a federal judge entitled to life tenure, such as a Supreme Court Justice. To carry out this 'advice and consent' role, the Senate typically holds a hearing at which Members question the nominee. After conducting this hearing, the Senate generally either 'consents' to the nomination by voting to confirm the nominee or instead rejects the nominee."
Library of Congress. Congressional Research Service
Lewis, Kevin M.; Brannon, Valerie C.
2018-08-30
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Congressional Review Act: Determining Which 'Rules' Must Be Submitted to Congress [September 24, 2018]
"The Congressional Review Act (CRA) allows Congress to review certain types of federal agency actions that fall under the statutory category of'rules.' The CRA requires that agencies report their rules to Congress and provides special procedures under which Congress can consider legislation to overturn those rules. A joint resolution of disapproval will become effective once both houses of Congress pass a joint resolution and it is signed by the President, or if Congress overrides the President's veto. The CRA generally adopts a broad definition of the word 'rule' from the Administrative Procedure Act (APA), defining a rule as' the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.'"
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Carey, Maeve P.
2018-09-24
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Supreme Court October Term 2017: A Review of Selected Major Rulings [September 19, 2018]
"On October 2, 2017, the Supreme Court began one of the most notable terms in recent memory. The latest term of the Court was the first full term for Justice Neil Gorsuch,who succeeded Justice Antonin Scalia following his death in February 2016. The October Term 2017 was also the last term for Justice Anthony Kennedy, who retired in July 2018. With nine Justices on the Court for the first time at the beginning of a term since October 2015, this past term witnessed the High Court issuing fewer unanimous opinions and more rulings that were closely divided relative to previous terms."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brannon, Valerie C.; Cole, Jared P. . . .
2018-09-19
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Vacancies Act: A Legal Overview [July 20, 2018]
"The Federal Vacancies Reform Act of 1998 (Vacancies Act) generally provides the exclusive means by which a government employee may temporarily perform the nondelegable functions and duties of a vacant advice and consent position in an executive agency. Unless an acting officer is serving in compliance with the Vacancies Act, any attempt to perform the functions and duties of that office will have no force or effect. The Vacancies Act limits a government employee's ability to serve as an acting officer in two primary ways. First, the Vacancies Act provides that only three classes of people may serve temporarily in an advice and consent position. As a default rule, the first assistant to a position automatically becomes the acting officer. Alternatively, the President may direct either a senior official of that agency or a person serving in any other advice and consent position to serve as the acting officer. Second, the Vacancies Act limits the length of time a person may serve as acting officer: a person may serve either (1) for a limited time period running from the date that the vacancy occurred or (2) during the pendency of a nomination to that office. The Vacancies Act is primarily enforced when a person who has been injured by an agency's action challenges the action based on the theory that it was taken in contravention of the Act."
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2018-07-20
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Deference and its Discontents: Will the Supreme Court Overrule Chevron? [October 11, 2018]
"Less than a week before announcing his retirement, Justice Anthony Kennedy called for the Supreme Court to 'reconsider' the seminal administrative law doctrine known as Chevron deference in a concurring opinion in Pereira v. Sessions. The doctrine, established by the Court's opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., instructs that when reviewing certain agency interpretations of statutes,courts should defer to the agency's construction if the statute is ambiguous and the agency's construction is reasonable. Some members of the Court--namely, Justices Clarence Thomas and Neil Gorsuch--have called for reconsideration of Chevron. In addition, the newest Justice, Brett Kavanaugh, was a leading critic of the doctrine during his tenure on the U.S. Court of Appeals for the D.C. Circuit. The selection of Justice Kavanaugh has led commentators to question whether the Court might reconsider Chevron in the near future. As the Supreme Court's new term began this month, the Court confronted the issue of agency deference in Nielsen v. Preap, although Chevron itself did not come up during oral argument. Recent cases suggest, however, that the Court might continue to reaffirm the case's vitality, and if the Court were to reassess Chevron, it might be to narrow the circumstances under which the doctrine applies in lieu of jettisoning it."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Cole, Jared P.
2018-10-11
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Statutory Interpretation: Theories, Tools, and Trends [April 5, 2018]
"Regardless of their interpretive theory, judges use many of the same tools to gather evidence of statutory meaning. First, judges often begin by looking to the ordinary meaning of the statutory text. Second, courts interpret specific provisions by looking to the broader statutory context. Third, judges may turn to the canons of construction, which are presumptions about how courts ordinarily read statutes. Fourth, courts may look to the legislative history of a provision. Finally, a judge might consider how a statute has been--or will be--implemented. Although both purposivists and textualists may use any of these tools, a judge's theory of statutory interpretation may influence the order in which these tools are applied and how much weight is given to each tool. This report begins by discussing the general goals of statutory interpretation, reviewing a variety of contemporary as well as historical approaches. The report then briefly describes the two primary theories of interpretation employed today, before examining the main types of tools that courts use to determine statutory meaning. The report concludes by exploring developing issues in statutory interpretation."
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2018-04-05
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Who's the Boss at the CFPB? [Updated January 11, 2018]
"'Update: On January 10, 2018, the U.S. District Court for the District of Columbia denied Leandra English's request for a preliminary injunction, ruling that the Federal Vacancies Reform Act (Vacancies Act) authorized the President to appoint Mick Mulvaney to serve as the Acting Director of the CFPB [Customer Financial Protection Bureau]. Since the Sidebar below was originally published, English filed an amended complaint and moved for a preliminary injunction on substantially similar grounds to those described below. In rejecting her motion, the district court held that because the provision of the Dodd-Frank Act that authorizes the Deputy Director to serve as the Acting Director when the Director is absent or unavailable did not expressly displace the Vacancies Act, the Vacancies Act remained available and authorized the President to fill the position. English had also argued that even if the Vacancies Act generally would allow the President to appoint an Acting Director, because Mulvaney is also the head of the Office of Management and Budget, an agency housed directly under the White House, he may not head an independent agency like the CFPB.'"
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Cole, Jared P.
2018-01-11
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Sidewalks, Streets, and Tweets: Is Twitter a Public Forum? [May 30, 2018]
"On May 23, 2018, a federal district court in New York in Knight First Amendment Institute v. Trump held that the Free Speech Clause of the First Amendment prohibited President Trump from blocking Twitter users solely based on those users' expression of their political views. In so doing, the court weighed in on the now-familiar but rapidly evolving debate over when an online forum qualifies as a 'public forum' entitled to special consideration under the First Amendment. Significantly, the district court concluded that 'the interactive space for replies and retweets created by each tweet sent by the @realDonaldTrump account' should be considered a 'designated public forum' where the protections of the First Amendment apply. This ruling is limited to the @realDonaldTrump Twitter account but implicates a number of larger legal issues, including when a social media account is operated by the government rather than by a private citizen, and when the government has opened up that social media account as a forum for private speech. The ability of public officials to restrict private speech on Twitter may be of particular interest to Congress, given that almost all Members now have a Twitter account."
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2018-05-30
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Chevron Deference: A Primer [September 19, 2017]
"Congress has created numerous administrative agencies to implement and enforce delegated regulatory authority. Federal statutes define the scope and reach of agencies' power, granting them discretion to, for example, promulgate regulations, conduct adjudications, issue licenses, and impose sanctions for violations of the law. The Administrative Procedure Act (APA) confers upon the judiciary an important role in policing these statutory boundaries, directing federal courts to 'set aside agency action' that is 'not in accordance with law' or 'in excess of statutory jurisdiction, authority, or limitations.' Courts will thus invalidate an action that exceeds an agency's statutory authorization or otherwise violates the law. Of course, in exercising its statutory authorities, an agency necessarily must determine what the various statutes that govern its actions mean. This includes statutes the agency specifically is charged with administering as well as laws that apply broadly to all or most agencies."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Cole, Jared P.
2017-09-19
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Supreme Court October Term 2017: A Preview of Select Cases [September 19, 2017]
"On October 2, 2017, the Supreme Court is to begin its new term. While the Court issued a number of notable decisions during its last full term, Court watchers have largely agreed that, at least compared to recent terms, the Court's October 2016 term was diminished both with regard to volume and content. With the Court already accepting over 30 cases for its next term, many of which raise deep and difficult questions in various areas of law, the October 2017 Supreme Court term could be considerably different. The next Court term has the potential to be one of the most consequential in years."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brannon, Valerie C.; Garcia, Michael John . . .
2017-09-19
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Vacancies Act: A Legal Overview [October 30, 2017]
"The Federal Vacancies Reform Act of 1998 (Vacancies Act) generally provides the exclusive means by which a government employee may temporarily perform the nondelegable functions and duties of a vacant advice and consent position in an executive agency. Unless an acting officer is serving in compliance with the requirements of the Vacancies Act, any attempt to perform the functions and duties of that office will have no force or effect. The Vacancies Act limits a government employee's ability to serve as an acting officer in two primary ways. First, the Vacancies Act provides that only three classes of people may serve temporarily in an advice and consent position. As a default rule, the first assistant to a position automatically becomes the acting officer. Alternatively, the President may direct either a senior official of that agency or a person serving in any other advice and consent position to serve as the acting officer. Second, the Vacancies Act limits the length of time a person may serve as acting officer: a person may serve either (1) for a limited time period running from the date that the vacancy occurred or (2) during the pendency of a nomination to that office. The Vacancies Act is primarily enforced when a person who has been injured by an agency's action challenges the action based on the theory that it was taken in contravention of the Act."
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2017-10-30
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Who's the Boss at the CFPB? [November 28, 2017]
"As consumers flocked to shopping outlets nationwide on Black Friday, a leadership shakeup ensued at the Consumer Financial Protection Bureau (CFPB). The CFPB's Director, Richard Cordray, announced that he had appointed Leandra English, the agency's chief of staff, to the position of Deputy Director. Cordray then resigned and stated that English would become the Acting Director of the agency, meaning that she would serve until the Senate confirms a permanent replacement. However, later that day, President Trump announced that he was designating Mick Mulvaney, the Director of the Office of Management and Budget, to serve as Acting Director of the CFPB. On Sunday, November 26, English brought suit in federal court seeking a declaration that she is the Acting Director of the CFPB, along with a temporary restraining order barring Mulvaney from acting in the position and President Trump from appointing any individual to the position. As of the date of this Sidebar, both English and Mulvaney have reportedly claimed to be Acting Director in communications to CFPB staff. Ruling from the bench on November 28, the federal judge presiding over English's suit denied English's motion for a temporary restraining order that would have prohibited Mulvaney from holding the position."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Cole, Jared P.
2017-11-28
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Out of Office: Vacancies, Acting Officers, and Day 30 [November 01, 2017]
"Across the executive branch, acting officers are currently serving in vacant advice and consent positions, temporarily filling these offices until a permanent officer is nominated by the President and confirmed by the Senate. Some of these offices remain vacant because the Senate is still considering whether to confirm a nominated officer, but others are vacant because President Trump has not yet submitted a nomination to the Senate. According to one tracker, there are currently 277 offices that have no formal nominee. Some of the acting officers filling these vacant advice and consent positions may soon face an important deadline--one that could limit their ability to continue performing the duties of the vacant office"
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2017-11-01
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False Speech and the First Amendment: Constitutional Limits on Regulating Misinformation [August 1, 2022]
From the Document: "Federal and state legislators have expressed interest in regulating online misinformation and disinformation. Such regulatory efforts may implicate the U.S. Constitution's First Amendment. The Supreme Court has said the Free Speech Clause protects false speech when viewed as a broad category, but the government may restrict limited subcategories of false speech without violating the First Amendment. For example, defamation, fraud, political advertisements, and broadcast speech are subject to special considerations. This In Focus highlights some relevant constitutional considerations in crafting new regulations of false speech."
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2022-08-01
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Vacancies Act: A Legal Overview [Updated August 1, 2022]
From the Background: "This report first describes the Vacancies Act's scope and operation, identifying when the Vacancies Act applies to a given office and which offices are exempt from its provisions. The report then explains who may serve as an acting officer and for how long, focusing on the limitations the Vacancies Act places on acting service. Next, the report discusses how the Vacancies Act is enforced. Finally, the report turns to evolving legal issues regarding the application of the Vacancies Act, including a discussion of how other federal laws may limit the Act's reach. Specifically, the report concludes by examining the interaction of the Vacancies Act with agency-specific statutes, the ability to delegate the duties of a vacant office, and constitutional Appointments Clause considerations."
Library of Congress. Congressional Research Service
Brannon, Valerie C.
2022-08-01
