Tech companies platform the First Amendment

Tech executive Maury Blackman is still trying every possible angle to censor journalist Jack Poulson for publishing a sealed police incident report and accurately reporting that Blackman was arrested in 2021 on suspicion of felony domestic violence. (Blackman was never charged or convicted.)

Not content with suing Poulson and his nonprofit, Blackman also sued Substack, the publisher of Poulson’s newsletter, and Amazon Web Services, which hosts Substack. But recent filings by Substack and AWS in the case explain why the First Amendment dooms not only Blackman’s case against the tech companies but also his case against Poulson.

Substack’s arguments, in particular, show how platforms can defend themselves and press freedom at the same time, and arguments by both companies demonstrate the importance to online journalism of Section 230 of the Communications Decency Act. Substack and AWS are doing exactly what tech companies that make money by publishing journalism — or any third-party content — should do. Journalists and other tech companies should take note.

First Amendment comes first

Earlier this month, Substack and AWS filed separate motions under California’s anti-SLAPP law seeking dismissal of Blackman’s claims. While both briefs explain the First Amendment barriers to Blackman’s case, Substack’s motion does a particularly good job applying the First Amendment not only to the platform but also to the journalists who publish on it.

Substack’s First Amendment argument is simple and correct: The First Amendment bars Blackman’s lawsuit because the information Poulson published was true and newsworthy. The public has a legitimate interest in true information that shows that a “powerful man (had been) arrested for felony domestic violence—without suffering job-related consequences for his role as a CEO with government contracts and a role in national security.”

As Substack points out, the Supreme Court has repeatedly said that the First Amendment bars enjoining news outlets and journalists from publishing true and newsworthy reporting, as well as prohibiting punishing them civilly or criminally. This black-letter law means that Blackman’s case against Substack — as well as against Poulson and the other defendants — should be dismissed.

To make its case, Substack also relies on another important Supreme Court precedent protecting journalists. In Bartnicki v. Vopper, the court held that the First Amendment protected a journalist’s right to publish materials received from a source about a matter of public concern, even if the source had obtained them unlawfully. Any state law that says otherwise is unconstitutional and can’t be used against journalists like Poulson.

Substack correctly argues that Bartnicki protects its publication of Poulson’s article because there’s no evidence that Substack obtained the incident report illegally. But importantly, it doesn’t stop there. Substack also defends Poulson’s publication of the incident report, noting that he obtained the incident report legally from a source. Under Bartnicki, Substack explains, the claims against all of the defendants must be dismissed.

Section 230 protects independent journalists

Only after going through the litany of First Amendment reasons that the case should be dismissed did Substack argue that Section 230 provides yet another reason to reject Blackman’s claims against it. AWS also relied on Section 230 in its brief.

Substack and AWS have an extremely strong argument under Section 230, which immunizes online platforms like them from claims like Blackman’s based on the publication of third-party content. They probably could have relied solely on Section 230 to argue that the case against it should be dismissed. The tech companies deserve credit for also explaining in great detail why, based on First Amendment principles that apply to both them and Poulson, Blackman’s case fails.

Still, their use of Section 230 as another basis for dismissal is a good reminder of why the law matters to reporters who publish online. By giving platforms a quick and relatively certain way out of lawsuits based on third-party content, Section 230 removes the strong incentive that would otherwise exist for platforms to take down newsworthy reporting when wealthy and powerful people threaten to sue them over it.

In fact, we’ve already seen this incentive structure play out in this case. Before Blackman sued, he tried to intimidate Substack and AWS into removing the incident report and Poulson’s reporting. He even got the San Francisco city attorney involved in threatening Substack.

Substack and AWS refused these demands, and Substack cited Section 230 to the city attorney. (According to an editor’s note published by Poulson, Substack did require Poulson to remove the address where Blackman was arrested, but it did not require Poulson to remove the entire incident report or other details from it.)

Section 230 worked exactly as intended here; Substack and AWS didn’t have to cave to the pressure because they knew they could rely on 230 to defend themselves if Blackman sued. The next time Section 230 is under attack, journalists should remember that the law helps stiffen the backbone of online platforms and that without it, platforms would be more likely to remove their reporting in the face of legal threats.

When deciding where to publish online, independent journalists should also consider which platforms truly care about the First Amendment and will have their backs if they get sued. AWS and especially Substack are walking the walk when it comes to defending the free press in the Poulson case. Other platforms must step up for journalists and for free speech too.