By Daniel Lyons

In Washington, DC, all eyes are on Judge Ketanji Brown Jackson this week, as the Senate Judiciary Committee considers her nomination to the US Supreme Court. Technology-related issues are increasingly finding their way to the Court’s docket in recent years — and this trend is likely to continue as both parties push for Big Tech regulations. Consistent with my earlier posts on the nominations of Justices Gorsuch and Kavanaugh, this post reads the tea leaves to get a sense of how a future Justice Brown Jackson may approach hot-button tech issues.

Tech exceptionalism

Unfortunately, Judge Brown Jackson’s judicial record provides few clues as to her approach. Most of her prior experience is at the trial court level, where judges have fewer opportunities than their appellate counterparts to tackle novel legal questions.

But a pair of ride-sharing cases suggest she is disinclined toward tech exceptionalism. Last year, Judge Brown Jackson denied Uber’s motion to dismiss a case alleging it violated the Americans with Disabilities Act and the equivalent DC statute by failing to provide adequate service for wheelchair-bound patrons. Judge Brown Jackson found that Uber “provides” public transportation service under the relevant regulations and rejected the company’s argument that it was merely a software developer that connects passengers with drivers. Shortly afterward, she denied a putative class action of drivers against Lyft, holding that the Federal Arbitration Act compelled individual arbitration of the drivers’ claims that the company violated DC wage and hour laws, because the arbitration agreement in the company’s online terms of service was enforceable. Neither decision was surprising, given precedent suggesting that these laws should be construed broadly. Yet both suggest a skepticism that generally applicable laws should apply differently in cyberspace.

Section 230 and platform
speech

The ongoing confirmation hearing promises to yield more clues as to Judge Brown Jackson’s approach to tech policy matters. Indeed, the questioning was barely underway before Sen. Mike Lee (R-UT) raised perhaps the hottest topic in the Big Tech space, Section 230 of the Communications Decency Act. In October 2020, Justice Clarence Thomas launched a rhetorical broadside calling for the Court to rein in the broad interpretation of the statute that has governed tech policy for nearly a quarter-century. His missives since, and Congress’ efforts to revise the statute, suggest that Court review of the topic may be inevitable, making Judge Brown Jackson’s views of interest to those in the tech policy space.

Lee asked Judge Brown Jackson about a popular proposal in right-of-center circles: whether Congress could condition a tech company’s Section 230 protections on a commitment that the company not discriminate on the basis of a user’s viewpoint. Judge Brown Jackson responded (appropriately) with the stock answer often proffered at these hearings: an inability to comment on a matter not before her. But rather than stopping there, she continued, stating that a government proposal to regulate along viewpoint lines is “generally impermissible” under the First Amendment.

This is an insightful comment that corrects a misconception about how the First Amendment operates in this space. Proposals such as Lee’s are pitched as protecting users’ First Amendment rights. But as we’ve noted before, the First Amendment only protects against government infringement of speech. This means that, far from serving constitutional rights, a congressional mandate that platforms publish specific viewpoints could in fact violate the First Amendment — specifically, the First Amendment rights of the platforms themselves. The speed with which Judge Brown Jackson seized on this facet of Senator Lee’s proposal is promising indeed.

That said, Lee’s proposal is a bit more nuanced. (Unlike Judge Brown Jackson, I’m not up for confirmation, so I am free to comment on his question.) Yes, outside the common-carriage context, the Constitution prohibits Congress from forcing platforms to carry user speech. But the Constitution also does not compel Congress to grant tech companies the protections afforded under Section 230. In effect, Lee is asking whether Congress can ask platforms to waive their First Amendment rights in exchange for a benefit that it could otherwise deny. This implicates the unconstitutional conditions doctrine, one of the opaquest corners of First Amendment jurisprudence. It’s fair to say the answer is “probably not,” but it would turn on the details of the proposal — which is one reason why judges do not comment on abstract proposals.

The discussion above just scratches the surface of potential tech issues that Justice Brown Jackson could face on the Supreme Court. (We haven’t even discussed antitrust, where significant reforms are afoot and where Brown Jackson’s predecessor, Justice Stephen Breyer, has been an intellectual powerhouse for decades, leaving huge shoes to fill.) As technology increasingly dominates our daily lives, our justices must think critically about how traditional legal concepts map onto cyberspace. The early tea leaves suggest that Judge Brown Jackson is well qualified to participate in that discussion.

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