Finishing What Abraham Started: Fixing Pre-Litigation Fees in Public Record Disputes 

Posted on by First Amendment Clinic

By Annie Weiler and Peter Kelley 

In a rare moment of judicial unanimity, the Arizona Supreme Court recently affirmed that the government cannot hide information from its constituents. According to the Court, the state acts counter to basic principles of government transparency and right of access—when it destroys probative files instead of providing them to requestors. 

Now that eight years have passed since Abraham’s initial request, Abraham v. Arizona Board of Regents came to a satisfying conclusion for First Amendment advocates. The Court has sided with the citizenry, and Arizonans now enjoy a more robust, comprehensive right of access. Now, it’s up to the Arizona Legislature to create a more comprehensive avenue for public record litigants to recover attorney fees.  

Where Public Records Law Currently Stands 

Like all states, Arizona maintains a range of “sunshine laws,” which are statutes and regulations that require government entities to—among other things—make their internal records accessible to curious constituents. Arizona codified its public record sunshine laws in A.R.S. §§ 39-121 through 39-161, allowing and encouraging the public to scrutinize and duplicate records maintained by government bodies. Should one be denied that right, A.R.S. § 39-121.02(C) allows them to sue the pertinent public body. The public body cannot evade its obligations by simply destroying the record; A.R.S. § 41-151.15(C) notes that an agency cannot toss any documents unless the state library decides it “has no further administrative, legal, fiscal, research or historical value.”

Still, litigating transparency isn’t cheap. Luckily, the statute also considered that, as § 39-121.02(b) allows a court to award attorney fees and other miscellaneous costs “reasonably incurred in [a public records action] if the person seeking public records has substantially prevailed.”

But the statute doesn’t define “substantially prevailed.” The Arizona Supreme Court provided a high-level definition in 2021 in American Civil Liberties Union of Arizona v. Arizona Department of Child Safety, defining a party who has “substantially prevailed” as one who, based on the totality of the circumstances, was “more successful than not” in obtaining the requested records. In other words, the court needs to determine whether the requester got most of what the agency first refused to provide. Until Abraham, it was unclear whether records that an agency forfeits before a lawsuit—yet after retaining counsel—count as a win for the requester. 

How We Got Here 

When the University of Arizona administrators passed over his application for Associate Vice Provost, Dr. Matthew Abraham—a longtime English professor—wanted to understand why. Between 2018 and 2020, he filed a slew of public records requests against the University, seeking faculty committee meeting minutes, academic hiring information, recordings, and internal survey data. The University complied with some requests and withheld the remainder, citing interests in privacy, confidentiality, and every public body’s safety blanket, being “detrimental to the best interests of the state.” These are the three standard exemptions in the Arizona law as recognized by the state Supreme Court.  

Among others, the University withheld a recording of a committee meeting. It said that Abraham may listen to the recording, but it wouldn’t let him obtain a copy. Abraham promptly declined and, again, requested the copy.  

Abraham soon retained counsel, and the University readily disclosed a few more documents. Still, it kept some others under lock and key, eventually forking over 1,700 record pages and thick redaction log.  It also bemoaned that the committee recording was “no longer available”—in other words, it had been destroyed. Eventually, Abraham filed a special action complaint against the Arizona Board of Regents, the body that governs Arizona’s public universities.  

The trial court concluded that while the University had “substantially abused its discretion and/or acted arbitrarily” before receiving Abraham’s demand letter, it had effectively “cured” its abuse by later providing some of the documents. On appeal, the Arizona Court of Appeals found that Abraham was not entitled to the records. The University’s rationale seemed sufficient, and even if the agency got it wrong, the trial court shouldn’t step in unless the mistake constituted judicial abuse. 

The Decision 

The Arizona Supreme Court decided to review the case, releasing its decision in mid-September 2026. It principally found that “[d]estroying a public record after a member of the public requests it should land government agencies in legal trouble.” Writing for a unanimous court, Justice Clint Bolick noted that “post-request destruction of a document is the ultimate denial,” and “that destruction of the recording seems an obvious violation of the statutes.” Because the recording had been “the subject of a public records request, it surely had further legal value,” so “[a]n agency’s retention policy must yield to the statute.”  

The Court also tied up a few other loose ends, including a public records standard of review and attorney fee determinations. For the former, it easily decided that trial courts must review public records redactions and nondisclosure via a de novo standard of review, meaning they must not simply defer to the agency’s determinations and instead come to their own conclusions.  

But the Court found the latter to be “[t]he most difficult and contentious issue.” The University had produced at least some records before Abraham decided to retain counsel. It seemed unclear whether that pre-suit production should count toward whether Abraham “substantially prevailed.” To resolve the issue, the Court split the issue into two: first, whether the requester substantially prevailed, and second, whether that production could contribute toward the requester’s fee award. 

For the former, the Court found that any contested or delayed documents produced before Abraham filed the suit would “count toward whether [he] has substantially prevailed.” Refusing to consider pre-suit successes would allow an agency to “stonewall a request until just before a lawsuit is filed without financial penalty.” In doing so, the Court patched this loophole.  

For the latter, the Court interpreted the fees statute narrowly. Section 39-121.02(B) permits fees “reasonably incurred in any action.” Under nearby statutes, “action” refers to “any matter or proceeding in a court.” Accordingly, “attorney fees cannot be recovered unless litigation is commenced.” The hours that Abraham’s attorney spent writing the demand letter—and every dollar Abraham had to pay for it—fell outside of the attorney fees award. A public records victory feels less impactful when the plaintiff is stuck holding the pre-litigation bill.   

In short, pre-litigation efforts can help a requester prove that they “substantially prevailed,” which is necessary to qualify for attorney fees. However, courts cannot reimburse the fruit of that labor, as the statute only allows them to award fees incurred in front of a court. This dichotomy creates an odd asymmetry. The same demand letter that contributes to a requester’s success cannot contribute to the fee award. And a requester whose letter works too well, prompting full production, would never file suit and thus never recover any fees. 

Even if the Court wanted a different outcome—and it seemed the Court wanted one, as it lamented that public entities often lacked an incentive to comply with requests until someone threatens litigation—it found that those concerns were better left for the legislature. 

The Remaining Gap 

The Arizona Supreme Court took the first step to stop agencies from destroying records, but the legislature must codify it. Only litigants can enjoy de novo review; a standard of review is a purely judicial function. Similarly, some litigants may enjoy the apparent privilege of obtaining withheld records, as only the ones who can afford a demand letter and resulting litigation may have that access. Abandoning the remedy behind a paywall defies the statute’s purpose—exposing public records to public scrutiny. A constituent without the resources to file a special action and resurrect destroyed documents has just lost their ticket to government transparency and thwarting delinquent agencies. 

The Arizona Legislature now holds this ticket in its hand. The answer lies in A.R.S. § 39-121.02(B)–(C), under which public records litigants may not recover pre-litigation fees—attorney fees may only be recovered after litigation has commenced. Expanding recovery under this section would not just allow more litigants to preserve their financial stability but signal that the days of agency deference—or, in invoking the “best interest of the state”—have started sunsetting.  

The Arizona State Legislature has authorized the recovery of pre-litigation fees in multiple areas. A.R.S. § 12-348(B), which considers fees in lawsuits against the state and municipal governments, allows fees for pre-litigation administrative proceedings; A.R.S. § 41-1007 allows fees in agency proceedings on an itemized application with no court action; A.R.S. § 12-2030 discusses mandamus fees and allows the court to grant costs needed for pre-litigation expenses. Expanding fee recovery for public records, therefore, is a natural expansion of existing Arizona law; it would hardly be aberrant or unusual. 

Accordingly, the Legislature should amend A.R.S. § 39-121.02(B) to include a provision that reads, with the relevant additions italicized below: 

“The court may award attorney fees and other legal costs that are reasonably incurred in any action under this article if the person seeking public records has substantially prevailed. An award under this subsection may include attorney fees and other legal costs incurred after access was denied or deemed denied and before the action was filed, in attempting to obtain the denied records. This subsection does not limit the rights of any party to recover attorney fees, expenses and double damages pursuant to section 12-349.” 

Adding this short provision would be yet another major public records victory for Arizonans. Under current law, an agency can deny or ignore a request, wait to see whether the requester obtains counsel, and produce the records only once a demand letter arrives—in other words, it may encourage an agency to withhold the record until the requestor finds a lawyer. The amendment removes that perverse incentive by making agencies bear the cost of waiting, which encourages them to turn over records promptly.  

Conclusion 

In what is best considered a major win for government access advocates, the Arizona Supreme Court in Abraham v. Arizona Board of Regents took a major step toward strengthening Arizona’s presumption of disclosure. However, without a legislative amendment, only those with the funds to pursue litigation may recover attorney fees. A simple one-sentence addition to A.R.S. § 39-121.02(B) could close the gap, allowing fee recovery before litigation commences and encouraging agencies to hand over documents instead of seeing whether a person files a claim. Until the start of the fifty-eighth regular session in January 2027, access advocates will have to wait and see whether the Arizona State Legislature will complete what Abraham started.  

City of Glendale rescinds panhandling statute in response to clinic lawsuit

Posted on by Gregg Leslie

The Glendale City Council voted on Sept. 9 to repeal three panhandling bans, in direct response to a lawsuit brought by ASU Law’s First Amendment Clinic.

The case, filed July 30 on behalf of three Glendale residents, argued that the city’s ordinances violated the First Amendment right to engage in protected speech. Plaintiffs also sought a preliminary injunction to stop Glendale from enforcing laws that prohibited requests for money, donations or other items of value.

ASU Law students played a critical role in the case, contributing to every stage of the litigation. See ASU Law News for more details.

Journalist arrested while filming police sues Yuma and Officer

Posted on by Gregg Leslie

The First Amendment Clinic at Arizona State University’s Sandra Day O’Connor College of law sued the city of Yuma and Officer James Baisch of the Yuma Police Department last month on behalf of independent journalist Lucas Mullikin, who was arrested in May 2023 while peacefully filming Yuma officers.

In May of 2023, Mullikin was driving through Yuma when he stopped to record a Yuma Police Department officer struggling to arrest a homeless man on a sidewalk. Mullikin was ordered to “get back” from the scene of the arrest and then was forced back and pushed to the ground. After Mullikin stood up and asked Officer Baisch for his badge number, Officer Baisch arrested Mullikin for failing to obey a lawful order and resisting arrest.

Mullikin’s lawsuit, filed February 25, 2025, accuses Yuma and Officer Baisch of retaliating against Mullikin for filming officers, using excessive force, and arresting him unlawfully. Mullikin is seeking unspecified damages and an injunction restraining the Yuma Police Department from maintaining its currently inadequate policies, training and supervision.

Complaint

First Amendment Clinic wins Supreme Court case, allowing journalists to qualify as researchers eligible to obtain ADES protection records.

Posted on by Gregg Leslie

The Arizona Supreme Court decided today that journalists can be engaged in the type of “bona fide research” that would allow them to see if a state health agency is protecting vulnerable adults under its care.

Students from the First Amendment Clinic represented journalist Amy Silverman, who has been researching whether the protective services division of the Arizona Department of Economic Security is adequately responding to abuse allegations. The records are confidential, but state law provides an exception for those engaged in “bona fide research” to obtain the records as long as all personally identifying information is redacted.

“This is an important win for our client and for all journalists,” said First Amendment Clinic Director Gregg Leslie. “Agencies are too quick to undervalue the work that investigative journalists do, and the Court has recognized that a statute that allows public access to information so agencies can be held accountable for their work also allows journalists to examine those agency actions.”

ADES said that journalists did not qualify for that exception, which should only apply to researchers who are assisting the agency. But the high court disagreed, pointing out that “interpreting the statute as categorically excluding journalists would raise serious freedom of speech and equal protection concerns.”

The case must now go back to the trial court to apply the new test and to consider other ADES objections to the scope of the request.

Agencies cannot deny access to databases just because keys are personal identifiers

Posted on by Gregg Leslie

State agencies cannot refuse to release database records because the IDs that connect the records are themselves health care “identifiers,” after the Arizona Supreme Court denied review of a lower court’s decision last week. Agencies must now create an encrypted version of the identifiers so the data is still useful.

In June of 2023, the Arizona Court of Appeals ruled in Silverman v. AHCCCS that state agencies must release database information in a usable format to those requesting public records. Specifically, agencies cannot obscure the connecting keys between data tables (as protected health-care information) without making an encrypted substitute for the key.

That appeal arose from a special action filed by the First Amendment Clinic as counsel for journalist Amy Silverman and the Arizona Daily Star against the Arizona Heath Care Cost Containment System (AHCCCS). The agency had refused to provide such encryped keys in response to Silverman’s public records request to review public database records to see how the agency determines benefits eligibility.

“This is a huge victory for journalists across the state and for the public,” said David McCumber, Executive Editor of The Arizona Daily Star. “It would not have happened but for Amy Silverman’s dogged reporting and the great work of the First Amendment Clinic. All of us at Arizona Daily Star are thrilled with the result.”

“This is an important win for the public and for journalists, since most records are kept in databases,” said Gregg Leslie, a Professor of Practice and the Director of the First Amendment Clinic at ASU’s Sandra Day O’Connor College of Law. “Removing the keys that connect all the information in a database renders the data useless.”

AHCCCS had maintained that providing the encrypted keys was not required by the Arizona public records law because it would amount to the creation of a new record.

The Court of Appeals rejected this argument and held that “requiring the agency to use a one-way cryptographic hash function to redact the non-disclosable data – substituting a unique hashed value that masks protected information without destroying its function in the database – is necessary to ensure a requestor receives, to the extent possible, a copy of the real record.”

AHCCCS filed a petition for review of this ruling with the Arizona Supreme Court. On May 7th, the Supreme Court denied that review, leaving the Court of Appeals’ ruling as precedent for similar public records requests in the future. Silverman and the Daily Star filed the underlying special action complaint nearly three years ago in June of 2021, though Silverman’s initial public records request to AHCCCS was made over four years ago in February of 2020.

The Star and Silverman requested these records while reporting a year-long project, State of Denial, co-published with the non-profit investigative newsroom, ProPublica, as part of their Local Reporting Network. Silverman wanted to examine rejection rates for people with intellectual and developmental disabilities applying for long term care through AHCCCS, the state’s Medicaid agency. The database information was an essential element in her reporting.

State of Denial went on to win a President’s Award from Lee Enterprises and was a finalist for several national reporting awards. Silverman was named 2020’s Virg Hill Journalist of the Year by the Arizona Press Club for her work on the project.

Silverman and the Daily Star were represented throughout the legal process by the First Amendment Clinic at Arizona State University’s Sandra Day O’Connor College of Law.

Arizona Government and Social Media

Posted on by Gregg Leslie

Social media has had a profound impact on communications in the United States, transforming the way people connect, share information, and engage with one another. It has become an integral part of daily life for millions of Americans and in particular, various government actors and agencies. For example, social media provides a new platform for governments to engage with citizens, disseminate information, and gather public feedback. Due to the significance of social media in government-to-citizen communication, courts have concluded that social media is the new defining democratic forum. For instance, in Packingham v. North Carolina, the Court stated, “While in the past there may have been some difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general … and social media in particular.” This shift from traditional to modern communication modes has resulted in several challenges to First Amendment rights. Government actors have used social media to block constituents’ access to information.

Arizona Counties and Representatives Increasingly Use Social Media

Throughout the nation, there has been a shift in reliance on social media as a news source; however, Arizona is a particularly striking example of this dramatic shift and the associated risks.

Most of Arizona’s counties have social media pages where constituents can receive information about government activities. For example, Maricopa and Pima, Arizona’s two largest counties, interact with citizens through various platforms such as YouTube, Facebook, and Twitter. (See table 2 below). Smaller counties also use these platforms to communicate with the public; however, rural citizens more heavily rely on access to public officials’ social media accounts for news regarding governance, policy, and public services in the wake of the dwindling presence of traditional media. See generally Penelope Abernathy, Arizona, The Expanding News Desert, (2023), https://www.usnewsdeserts.com/states/arizona/. [J(1] [A(2] [J(3] Arizona’s local government officials have somewhere around two hundred and thirteen social media accounts between both chambers of the Arizona legislature, averaging roughly two accounts per representative or senator. Meanwhile, every member of Arizona’s delegation to Washington has at least three different social media accounts. (See table 1 below). The growing use of social media by government actors and agencies makes the curtailment of freedoms on these platforms more concerning.

Table 1: Arizona Politician’s Social Media Usage

House Legislator Party Social Media Accounts Account Average
2.440677966
Cesar Aguilar D 3  
Lorena Austin D 3  
Leo Biasiucci R 3  
Seth Blattman D 2  
Selina Bliss R 2  
Andrés Cano D 3  
Michael Carbone R 1  
Neal Carter R 1  
Joseph Chaplik R 3  
Lupe Contreras D 1  
Patricia Contreras D 2  
David L Cook R 2  
Quantá Crews D 2  
Oscar De Los Santos D 3  
Lupe Diaz R 2  
Timothy M Dunn R 2  
John Gillette R 2  
Travis Grantham R 3  
Matt Gress R 2  
Gail Griffin R 1  
Nancy Gutierrez D 3  
Justin Heap R 2  
Laurin Hendrix R 2  
Alma Hernandez D 3  
Consuelo Hernandez D 2  
Lydia Hernandez D 2  
Melody Hernandez D 3  
Rachel Jones R 2  
Alexander Kolodin R 3  
David Livingston R 2  
Jennifer L Longdon D 2  
David Marshall, Sr. R 4  
Teresa Martinez R 3  
Christopher Mathis D 3  
Cory McGarr R 2  
Steve Montenegro R 3  
Quang H Nguyen R 2  
Analise Ortiz D 3  
Barbara Parker R 0  
Jacqueline Parker R 3  
Jennifer Pawlik D 3  
Kevin Payne R 2  
Michele Peña R 1  
Mae Peshlakai D 1  
Beverly Pingerelli R 3  
Marcelino Quiñonez D 3  
Athena Salman D 3  
Mariana Sandoval D 3  
Judy Schwiebert D 3  
Keith Seaman D 2  
Amish Shah D 3  
Austin Smith R 3  
Stephanie Stahl Hamilton D 2  
Leezah Elsa Sun D 3  
Laura Terech D 3  
Ben Toma R 2  
Stacey Travers D 3  
Myron Tsosie D 3  
Julie Willoughby R 3  
Justin Wilmeth R 3  
Senate Legislator Party Social Media Accounts Account Average
2.444444444
Lela Alston D 2  
Ken Bennett R 3  
Sonny Borrelli R 3  
Flavio Bravo D 2  
Eva Burch D 3  
Frank Carroll R 2  
Eva Diaz D 2  
Denise “Mitzi” Epstein D 3  
David C. Farnsworth R 2  
Brian Fernandez D 1  
Rosanna Gabaldón D 3  
Sally Ann Gonzales D 3  
David Gowan R 2  
Theresa Hatathlie D 0  
Anna Hernandez D 3  
Jake Hoffman R 2  
John Kavanagh R 3  
Anthony Kern R 3  
Sine Kerr R 3  
Christine Marsh D 3  
Juan Mendez D 3  
J.D. Mesnard R 2  
Catherine Miranda D 3  
Warren Petersen R 2  
Wendy Rogers R 2  
Janae Shamp R 1  
Thomas “T.J.” Shope R 3  
Priya Sundareshan D 2  
Justine Wadsack R 3  
U.S. House Rep Party Social media accounts Account Average
3
David Schweikert R 3  
Eli Crane R 3  
Ruben Gallego D 3  
Greg Stanton D 3  
Andy Biggs R 3  
Juan Ciscomani R 3  
Raúl Grijalva D 3  
Debbie Lesko R 3  
Paul Gosar R 3  
U.S. Senator Party Social media accounts Account Average
3
Mark Kelly D 3  
Kyrsten Sinema I 3  

Table 2: Arizona Counties’ Social Media Usage

County Type of Social Media Link/Reference
Apache County Facebook Website Facebook
Cochise County Facebook/Instagram/Next-door Website Facebook  Instagram Nextdoor
Coconino County Facebook/Instagram/YouTube/Twitter Website Facebook Instagram Twitter YouTube
Gila County Facebook/YouTube Website Facebook YouTube
Graham County Facebook Website Facebook
Greenlee County N/A Website
La Paz County Facebook Website Facebook
Maricopa County Facebook/Instagram/YouTube/Twitter Website Facebook Instagram Twitter YouTube
Mohave County Facebook/YouTube/ Twitter Website Facebook Twitter YouTube
Navajo County Facebook/YouTube/ Twitter Website Facebook Twitter YouTube
Pima County Facebook/Instagram/YouTube/Twitter/ Pinterest/Flickr Website Facebook Instagram Twitter YouTube Pinterest Flickr
Pinal County Facebook/Instagram/YouTube/Twitter Website Facebook Instagram Twitter YouTube
Santa Cruz County Facebook/Twitter Website                                      Twitter Facebook
Yavapai County Facebook/Instagram/YouTube/Twitter Website Facebook Instagram Twitter YouTube
Yuma County N/A Website                                                                              

The Day My State Representative Blocked Me!

In Arizona, it is common for public officials to use social media’s blocking function to restrict access to information, suppress dissent, and create a false narrative in support of activities that would otherwise draw criticism. Representative Bob Thorpe of the Arizona House, for instance, blocked users, including news reporters, from his Twitter account in 2013 after receiving censure for a racially insensitive tweet. Jeremy Duda, Thorpe Erases Tweets, Locks Down Twitter Account Following Racism Accusations, AZCapitol Times, August 14, 2013. The tweet followed U.S. Attorney General Eric Holder’s announcement that the Department of Justice would not pursue mandatory minimum prison sentences for a large number of low-level, nonviolent drug offenders. Id.[J(4] [A(5] [J(6] [A(7]  Thorpe tweeted, “Why is Holder [U.S. Attorney General] now Soft on Crime? Perhaps: blacks=12%-13% US population, but make up 40/1% (2.1 million) of male inmates in jail or prison!” Id.

In early 2022, Joshua Gray, a politically engaged Arizonan and frequent Twitter user, was blocked from then Representative Anthony Kern’s[J(8] [A(9]  Twitter account. The block followed Mr. Gray’s critique of Senator Kern’s involvement in the January 6th Capitol attack.[J(10] [A(11]  The criticisms leveled against Senator Kern were not well received and, according to Gray, Senator Kern responded to Gray’s criticisms with a “snarky response[J(12] [A(13] [J(14] .” Id. Despite having negligible contact with Kern, Kern blocked Mr. Gray. Id. In 2022, Kern was elected as Mr. Gray’s state representative, much to his dismay. Id.

Senator Kern uses Twitter for various purposes, including discussing his political beliefs, expressing opinions on significant issues, and disseminating information about local, state, and federal affairs. Id. Twitter is not the only social media platform used by Senator Kern, but it is by far his preferred platform. Despite various attempts to contact Senator Kern regarding the block, Gray has not received a response from Kern. Id. Gray said, “I’ve written and called his office a bunch of times to see if he could unblock me, but I haven’t heard back.” Id. This block effectively prevents Gray from accessing Senator Kern’s governance and policy perspectives. Id. Gray indicated that since the block, he “ha[sn’t] had contact with him since.” Id.

Clinic wins two important cases on appeal

Posted on by Gregg Leslie

The First Amendment Clinic, acting on behalf of journalist Amy Silverman, has recently won two important cases at the Arizona Court of Appeals.

In Silverman v. AHCCCS, the court ruled that agencies have to release database information in a usable format, and cannot obscure the connecting keys between data tables as protected health-care information without making an encrypted substitute for the key, so that the data is still usable. The Arizona Health Care Cost Containment System (AHCCCS) has claimed that encrypting the keys would constitute the creation of a new record, which is not required under the public records law. The court held that “requiring the agency to use a one-way cryptographic hash function to redact the non-disclosable data — substituting a unique hashed value that masks protected information without destroying its function in the database — is necessary to ensure a requestor receives, to the extent possible, a copy of the real record.”

In Silverman v. DES, the court ruled last week that a journalist can qualify as a “bona fide researcher” for purposes of being allowed access to certain health-related files — although the files will still have to be heavily redacted to avoid identifying any individuals. The agency had said that journalists don’t qualify for that exemption from secrecy and denied Silverman access to the records completely, thus keeping her from examining how the Department of Economic Security (DES) handles complaints about incidents involving people with developmental disabilities. However, the agency may still be able to show that the request may be too burdensome, and it can still reject her request as long as it does not act “arbitrarily and capriciously” in doing so.

Big day for free speech at the U.S. Supreme Court

Posted on by Gregg Leslie

Two important decisions came down this morning at the U.S. Supreme Court that upheld the important protections for all web sites (including the big social media sites) from liability based on what people post on their sites. The court held in Twitter v. Taamneh that web sites can’t be guilty of “aiding and abetting” criminal activity just because their sites were used by terrorist organizations, and in Gonzalez v. Google that there was no reason to determine if YouTube could be responsible when its algorithm decides to “recommend” videos that terrorist groups might use to recruit members.

Both cases are controversial, but both are important wins. Of course, nobody likes the idea that terrorists can plot attacks on social media and can get their posts distributed based on “likes.” But a decision that would have held the sites liable for these activities would have simply made speech on the Internet unrealistic for anyone who cannot afford to parse through every post on their site and somehow know if the poster has bad intentions. Free speech does come with some costs, and that has long been acknowledged in the history of First Amendment jurisprudence. You don’t have to approve of a neo-Nazi march through Skokie, Ill., to recognize that the right to speak should not be regulated by the government.

It’s tempting to point out that these cases aren’t really about traditionally speech, but facilitating others’ speech, and they involve multi-billion-dollar companies like YouTube and Twitter. But speech cases have often concerned the interests of other speakers, like when people have tried to hold bookstores accountable for what was written in a book they sold. Even the seminal libel case of New York Times v. Sullivan involved not the speech of the newspaper, but of an advertiser who wanted to let the world know what was happening to protesters and reformers in the South during the civil rights struggle. And Section 230’s protections are essential to the “little guy” publishers, who could be devastated and run out of business by lawsuits over something they never really stated themselves. Overall, it was a very good day for speech at the high court.