230’s Constitutional Catch-22 – Big Tech’s Worst Nightmare!
Guest post by Jason Fyk
How are companies like Meta, Google, and even X to some degree, still able to get away with unfettered Internet censorship? Why is it that they can take down anything they want, even if it is in their own interest or for their own financial benefit?
By now, you have likely heard of Section 230. Title 47, United States Code, Section 230 (the Communications Decency Act, “CDA”) was supposed to protect “Good Samaritan” blocking and screening of offensive materials. In other words, companies that restrict bad content, in good faith, are protected from civil liability. At least that was supposed to be the intent.
That, however, is not at all what has transpired in courts, mainly the California courts. To explain what went wrong, I am going to ultra-simplify the intended purpose of Section 230, and explain how the courts botched it.
(1) Section 230(c) – is the general provision (also known as an “intelligible principle”). It is the general motivation by which these companies must act to receive State protection. Essentially, they must first be a “Good Samaritan” to receive any government protection, at all.
(2) Section 230(c)(1) – explains the treatment of the provider or user. Simplified, 230(c)(1) prevents the provider or user from being treated as someone else for someone else’s publishing conduct. It makes sense, if the provider or user are not involved, at all, in any of the publishing decisions, they cannot be held liable for what someone else does or says.
(3) Section 230(c)(2)(A) – allows the provider or user to take any action to restrict content that the provider or user considers, at least in “good faith,” to be otherwise objectionable. In other words, 230(c)(2)(A) allows the provider or user the ability to act as a secondary publisher and protects them from their own “good faith” conduct.
To simplify this even further, 230(c) is the general motivation by which Big Tech must act. 230(c)(1) prevents Big Tech from being treated as someone else, and 230(c)(2)(A) is direct liability protection for Big Tech’s own publishing conduct if acting in “good faith.” Seems simple, right?
So, why, then, is it that these companies never seem to be acting in “good faith” when they restrict content? Well, that is because courts are not actually applying their conduct to 230(c)(2)(A). You heard me correctly. Out of roughly 500 cases since the day this law was enacted, only 19 of those cases were ever actually applied to 230(c)(2)(A).
You may be wondering why content restriction cases (i.e., publishing conduct) are not applying to 230(c)(2)(A), or “good faith?” Well, the sad truth is that courts seemingly cannot read English. Again, you heard me correctly. Would it blow your mind if I told you the entire Big Techproblem turns on a single mistaken / misread word? Well, it does, and that word is the word: “THE.”
Section 230(c)(1) reads as follows: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The courts read this as “a publisher or speaker,” but it doesn’t say “a,” it specifically uses the word “the” in reference to who “the publisher or speaker” is.
“The publisher or speaker” is literally anyone other than the provider or user, but reading it as “a” (or “any”) publisher would include themselves, when they themselves act as “a [secondary] publisher or speaker.” Courts transformed 230(c)(1) from: not treating the provider or user as someone else (“the” publisher), for someone else’s publishing conduct, to not treating the provider or user as themselves (i.e., as “a” publisher in the general sense) for any of their own publishing conduct. 230(c)(1) became absurd blanket immunity from “all [secondary] publication decisions.”
hink about this for a second. If these companies cannot be treated as themselves for their own conduct, then they can do anything they want to your content and never be held liable for their own actions. The phrase “good faith” no longer applies. And what is worse, because of Section 230(c)(1)’s non-textual – nonsensical application, it rendered 230(c)(2)(A) entirely superfluous. In other words, if “all publication decisions” are protected under 230(c)(1), then 230(c)(2)(A) is just duplicative protection. That cannot be right … because it is not.
Worse yet, some courts also wrongly believe that 230(c)’s general provision / general motivation / “Intelligible Principle” only applies to 230(c)(2) cases, not Section 230(c) as a whole (i.e., it does not apply to 230(c)(1)). Because courts seemingly cannot read the statute properly, they determined 230(c)(1) (by itself) protects “all publication decisions,” regardless of motive. That is absolutely absurd! The courts (not the law) turned 230(c)(1) into what Senator Cruz called “super-immunity” in his Gonzalez v. Google amicus curiae briefing. He is right.
For six years now, we have tried to get the courts to fix the CDA “immunity” problem, which would fix the whole damn Internet problem virtually overnight; but, the courts have utterly stonewalled us thus far. I have been dismissed umpteen times now without so much as a single hearing, and without a single logical decision. Nothing the courts have said has made any sense, but they will not let us through the door to even put forth argument. Thus the real question is: how the hell do we get the courts to do their damn job?
When Facebook called on the United States to “step in” (i.e., they invoked the State’s Section 230 protection) to protect / immunize them from the wrongdoing that Facebook inflicted on me, it asked the United States to ACT on its behalf. Let me say that again so you do not miss it – Facebook’s invocation of CDA immunity called on the United States to take “STATE ACTION.” In other words, when the US Courts took action to protect Facebook from liability, the State was no longer just an idle party.
Have you ever wondered where the private actions of Big Tech cross the line into state actions? It is time to do a little research (see footnotes). The moment the private entity asks the State to take action to protect them from civil liability, under a Federal Statute, is the moment when the State becomes “vicariously liable”1 for the actions of the private entity as the “Respondeat Superior.”2 Put differently, the actions of the private entity are entirely private until they seek the State’s Section 230 affirmative defense3 protection. Because of the special relationship4 that Section 230 creates between Private and State actors, the moment the State “assumes control” over our individual civil liberties, it is sufficient to trigger the State’s “affirmative duty” to provide protection to that restrained individual (that is you and me, folks). Furthermore, when applying affirmative defense protection, the burden of proof falls on the Defendant to prove that they acted within the general provision of the law. Here, they must prove that they were acting as a “Good Samaritan.” Simply stated, when the State gets involved, they have one job – protect our individual rights, not the Defendant’s. Yeah… well, the United States has utterly shit the proverbial Section 230 bed, so far!
In my case, not only did the State not protect my rights, it essentially acted as an accessory after the fact5 to Facebook’s illegalities (i.e., the State’s concrete, particular injury-in-fact). Now that courts have specifically acted to deny me of my legal right, now question is – how do we hold the State responsible for its own unconstitutional actions? There must be some type of mechanism to challenge the constitutionality of a Federal statute, that has been applied wrong. That mechanism is a procedural Rule 5.1 Constitutional Challenge.
The elegance of our recently field Rule 5.1 Constitutional Challenge (credit to Jeffrey Greyber, Esq. of Greyber Law, PLLC) is that we have the courts in a legal / constitutional Catch-22. In a Rule 5.1 Challenge, the court “must” certify to the US attorney general that the federal statute is being challenged, because the State (not Facebook) specifically denied me of my legal right to sue Facebook. Facebook clearly did not protect itself, did it? My fight is no longer about Facebook’s actions, it is now entirely about the State’s misapplication of the law. In other words, we are no longer just asking the courts to apply 230 properly, we are challenging their application of that law, and telling them they need to reconcile their application with the Constitution.
This is where this gets really interesting. The DOJ recently entered its appearance in my case against Facebook, because the DOJ has the ability to defend the State’s (i.e., the courts’) application of Section 230(c)(1). If the State somehow argues that the law was applied correctly in my case, we can literally use their own words against them. Yup, you heard me right again. Conveniently, the US DOJ submitted an amicus brief in Gonzalez v. Google that supports our position that 230(c)(1) was applied incorrectly in my case. The US DOJ literally said in its brief that it is the position of the United States that “230(c)(1) has been applied beyond its proper bounds.” In other words, wrongly / unconstitutionally! They have already publicly agreed with us. So now what are they going to do? Argue that their own position on the law was wrong? They are in a Catch-22, but so is the court.
In another case, Jarkesy v. Securities and Exchange Commission (SEC), the Fifth Circuit Court of Appeals determined that if there is no “intelligible principle” (i.e., the general provision / motivation of 230 is not applied) overarching the SEC’s actions (here, Big Tech’s actions), then the law that affords them that protection is unconstitutional (i.e., one’s federally authorized immunity from civil action cannot be “unfettered”). “Unfettered” protection is precisely the result of the courts misinterpretation of Section 230(c)(1).
From our recent Rule 5.1 Constitutional Challenge:
Put simply, it is a Catch-22: either the District Court was wrong about the application of Section 230(c)(1) (that is, wrong that Section 230(c)(1) is somehow not subject to the Section 230(c) “Good Samaritan” intelligible principle) or the federal statute is unconstitutional. Either way, the dismissal of Fyk’s case was / is untenable and must be immediately overturned.
In other words, if the court is somehow right about Section 230(c)(1)’s overly broad application, the law is unconstitutional (i.e., it is wrong). And, if they are wrong about it, well, then they are wrong. Either way, the courts are in a Catch-22 that the DOJ cannot possibly defend, and my right to challenge Section 230, according to Rule 5.1(d), is not forfeitable.6
Therefore, “the court must, under 28 U.S.C. §2403, certify to the appropriate attorney general that a statute has been questioned.” Simply put, Big Tech is about to become liable for all its publications decisions that were not done in “good faith” and / or as a “Good Samaritan.” Checkmate!
Are you ready for the Internet to fundamentally change back to what was originally intended by Congress?
Jason Fyk is Founder: Social Media Freedom Foundation
See pdf of the same below: