Pam Geller Doubles Down On Claims That Facebook Removing Her Posts Is Section 230-Enabled 'Government Censorship'

from the when-in-doubt,-press-repeat dept

Pam Geller has decided there’s nothing like grabbing more shovels when you’re already in a hole. [And that means it’s time for notable “leftist publication” Techdirt to crank out another “little hit piece” filled with “hyperbole and nonsense,” apparently…]

Geller doesn’t like the way she’s been treated by Facebook, YouTube, and Twitter and has decided the problem is Section 230 of the CDA. So, she’s suing the DOJ for “enforcing” the immunity the government has granted to websites to shield them from being held responsible for user-generated content.

The DOJ responded to her lawsuit by pointing out that the DOJ doesn’t ENFORCE anything. It’s a defense service providers can raise when entities come after them for content posted by their users. In Geller’s mind, Section 230 gives service providers the “right” to arbitrarily remove content. She’s wrong, of course. It does no such thing. Instead, Section 230 prevents service providers from being held civilly liable for making “good faith” efforts to remove objectionable content. The rest of what Geller’s complaining about can be traced back to each provider’s terms of service and their individual translations of what that means in terms of Geller’s often-inflammatory content.

Geller continues to insist this is about suing Facebook, even though Facebook isn’t a named party. And her response to the DOJ’s motion to dismiss strongly suggests she feels she can’t directly sue any service provider for taking down her content because of Section 230. This is also incorrect. She may have almost no chance of winning the suit, but nothing in Section 230 prevents service providers from being sued for allegedly discriminatory behavior. From Geller’s opposition motion [PDF] (h/t Adam Steinbaugh):

By way of § 230, the Government is empowering this type of discrimination and censorship. By its own terms, § 230 permits Facebook, Twitter, and YouTube “to restrict access to or availability of material that [they] consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

This is where Geller misreads “permits” as “orders.” Section 230 does not place any content-based restrictions on speech. Instead, it immunizes service providers from civil liability for good faith content removal. Geller calls this immunization “government-sanctioned discrimination and censorship of speech” — somehow finding a defense mechanism to be an avenue of attack. (She repeats her laughable assertion that Section 230 is a “heckler’s veto” multiple times in the filing.)

From there, Geller theorizes that Section 230 would prevent Facebook, et al from being sued for violating California’s anti-discrimination statutes. This theory is incorrect as well.

The pertinent part of Section 230 reads:

Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

This law immunizes Facebook from being held liable for, say, Pam Geller’s controversial content — even if a state law says otherwise. What it doesn’t do is immunize Facebook from liability for violating California discrimination laws, which is where Geller has a somewhat more cognizable claim. Unfortunately for her, she’s chosen to name the wrong defendants and file in the wrong jurisdiction. Continuing to misconstrue a defense as an attack, Geller insists that she has standing to sue the federal government for content removal performed by a private company.

The very reason why Facebook, Twitter, and YouTube are able to engage in their discriminatory practices with impunity is § 230. See Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014) (concluding that § 230 foreclosed tort liability predicated on Facebook’s decision to allow or to remove content). In other words, the Government has sanctioned these discriminatory practices by placing them above the law. Consequently, the traceability element is satisfied.

If there’s anything “traceable” here, it’s the California location of the entities she mentions in her lawsuit (YouTube, Facebook, Twitter) but has not named as defendants. California law is the angle she should be using to attack these companies for their allegedly “discriminatory” removal of her postings, but she has filed in federal court and named the DOJ as the defendant.

Geller notes that California law prohibits the sort of discriminatory behavior she’s alleging:

Section 51 of the California Civil Code provides, in relevant part, All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

If her allegations are true and these service providers are discriminating against her, Section 230 would not immunize them against these claims. But even if she were to raise claims solely under this law, she would likely not succeed.

The law only requires company provide “access.” It does not demand they allow anyone to do whatever they want once they’re granted access. Under this law, Facebook can’t deny Geller an account simply because it doesn’t like her religious views, but it is under no obligation to allow her to post whatever she wants. The DOJ, in its motion to dismiss, addressed this point as well (even though it was under no obligation to make California’s arguments for it).

Nor is it clear how California law can require a private social media company to publish Plaintiffs’ speech, see Compl. ¶¶ 46-61, or how such a state-law requirement would be consistent with the First Amendment, which arguably protects a social media company’s editorial control or judgment from government regulation that would require publication of a certain message.

If Geller were able to prove she was denied access based on her religious beliefs (and a temporary ban doesn’t cut it, legally-speaking), Section 230 would not stand in the way of the civil suit Geller doesn’t appear to actually want to file. All Section 230 immunizes against is holding Facebook civilly liable for content users like Pam Geller have posted. And Geller’s main complaint is that Facebook keeps taking her posts down, not allowing them to stay up.

At best, Geller’s extremely misguided lawsuit may eventually boil down to litigation directly implicating California’s anti-discrimination law and how that is actually applied to service providers located in California, but with users all over the world. It may also result in a somewhat indirect challenge of that law’s Constitutionality. But what it won’t do is make the federal government responsible for Facebook’s actions. And Geller, whose popularity and following largely relies on inflammatory speech, is only shooting herself in the foot by attacking Section 230. If this immunization were not provided to social media platforms, it’s highly unlikely she’d have anything more than a self-hosted personal blog for a soapbox.

The final irony is that Geller is no doubt opposed to anti-discrimination laws like California’s that force private businesses to cater to customers they’d rather not — perhaps even in opposition to their own religious beliefs. (See also: same sex marriage/wedding cakes.) But she wants the government to step in and act as arbiters of private companies’ terms of service and prevent the sort of discrimination she claims is taking place.

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Comments on “Pam Geller Doubles Down On Claims That Facebook Removing Her Posts Is Section 230-Enabled 'Government Censorship'”

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PaulT (profile) says:

Just before this turns into the same silly argument as last time – freedom of speech means the government can’t restrict your speech, it in no way means that private organisations have to provide you a platform.

Yes, these services can block you for any reason they want so long as it’s not due to you being part of a specific class (they can’t block Christians for being Christians, but they can block assholes who happen to be Christian for being assholes).

Yes, all these services have competitors, but all of them have standards which bigoted ranting morons will tend to fall afoul of, and find themselves restricted for the good of the overall community. If you don’t want to be banned for being a hateful lying moron, try not being a hateful lying moron for a change.

That One Guy (profile) says:

Re: Re: Re:

I always find it funny when people post in the comments talking about how sites should in fact be liable for the comments and/or submissions of their users, completely oblivious to the fact that were that the case they themselves wouldn’t be able to comment at all, because it would be too risky for sites to allow user submitted content.

It’s kinda like watching someone standing on a bridge, arguing that the bridge supporting them shouldn’t exist. They’re arguing against the very thing that provides them support/speech, either incapable or unwilling to understand that such a move would negatively impact them as well.

Anonymous Coward says:

Re: Re:

It is truly sad that a lawyer brought this case, there should be a beatdown from the bar for robbing a client by proceeding with a merit-less case based on the clients inability to understand reality.

I think it’s actually “based on the clients ability to pay”. All it takes is money.

Anonymous Coward says:

Venue shopping?

I imagine it’s possible that the C230 references are intended to get the case heard outside of CA. Which I can understand. My expectation is that half the bench in the state gets blown at Facebooks expense.

Sufficed to say that any company whose gross revenues exceed that of multiple nation states, deserves some critical analysis in terms of actions that exceed the domain of the UCC, and progress into the domain of the sovereign state.

Facebook however, isn’t really that much of a concern to me. Probably because I don’t hang with people who use Facebook or shoot heroin. There have been a lot of SciFi stories over the years that have contemplated digital narcosis. Personally I think we are already there, just nobody noticed because they were already anesthetized by cable T.V.

I find it distressing that such a matter should be addressed in such a tardly way. There are genuine issues of digital sovereignty that need to be heard before a court. It is important that they are heard, and aggressively argued. Unfortunately this half baked fruit loop is a leader. Sometimes it works that way. A squeak is all you get out of the trial balloon.

PaulT (profile) says:

Re: Venue shopping?

“critical analysis in terms of actions that exceed the domain of the UCC”

Which actions would those be?

“progress into the domain of the sovereign state”

Because they’re a large company? Please explain.

“Probably because I don’t hang with people who use Facebook”

As far as you know. I doubt you genuinely don’t know/socialise with anyone who uses the site, but I’m similarly suspicious of anyone who automatically rejects 1.7 billion people on the planet because they utilise a particular communication tool.

“There are genuine issues of digital sovereignty that need to be heard before a court.”

Such as…?

Christenson says:

Rule of Holes

Pam Geller has decided there’s nothing like grabbing more >shovels when you’re already in a hole. [And that means it’s >time for notable "leftist publication" Techdirt to crank out >another "little hit piece" filled with "hyperbole and >nonsense," apparently…]

Hmm, howsabout quoting notably right wing federal judges on Prenda: "The first rule of holes is to stop digging!"

bob says:

what is TechDirt really

Never looked at TechDirt as a left-wing news site, I see it as a pragmatic view of the US and World. Sure every now and again an article will display a political or ideological slant. The writers are human.

However, the arguments and articles are consistently written with logic and full, verifiable truths to correctly explain what is going on and how an issue could/will affect people and tech.

And if the articles don’t the comment section will.

PaulT (profile) says:

Re: what is TechDirt really

“Never looked at TechDirt as a left-wing news site”

It’s not. However, there seems to be a number of echo chambers online that love to base their beliefs on myths and half-truths, many of which skew hard right-wing. They don’t like having their ideas challenged, and anyone doing so is immediately labelled “leftist” and whatever other terms they’ve decided are derisive synonyms.

Since they often don’t base their discussion on provable facts to begin with, site like this one, Snopes, etc. that deal mainly with verifiable facts are therefore labelled “left wing”. It a rather sad state of affairs when people are literally rejecting sites as being incompatible with their political views because they discuss reality, but that’s why these people often seem so angry and confused when posting outside of their echo chambers.

Wendy Cockcroft (profile) says:

Re: Re: what is TechDirt really

That’s the thing I love most about this site: it’s not an echo chamber. I won’t call out particular writers but regulars know which ones tend to lean left and Progressive and the ones who lean right, Conservative and Libertarian. There’s a healthy mix of opinions, which is HOW this site avoids a partisan bias.

This neatly explains what’s going on with Pam Geller: it’s got so stifling in the toxic environment of her echo chamber, she’s just got to get out and pollute elsewhere. I have wondered why these people don’t just stay beneath their bridges where they belong. Now I know.

Peter Voveris (profile) says:

In Simpler Terms

Perhaps the DOJ could have said it like this.

You sit down one day and write some nonsensical drivel.
You decide that everyone should see this drivel because it is truly spectacular drivel.
You have created an account on this drivel publisher called Hatepamphlet, and agreed to their terms and conditions about what sort of drivel they allow to be posted on Hatepamphlet.
Hatepamphlet didn’t really like what you said because it was really hateful, and removed it.

Section 230 doesn’t apply.

If on the other hand they left it up and someone really disliked your drivel and sued Hatepamphlet, because no one should bear the thought of reading your drivel.
Section 230 would apply, because they are immune to the suit.

See, in real easy words.

PaulT (profile) says:

Re: In Simpler Terms

Even easier: section 230 prevents a site being held liable for someone else’s actions. If you want to sue them for their own actions, go ahead, but section 230 doesn’t affect that ability.

However, since Facebook’s actions here were simply to enforce its own T&Cs, there would only be legal liability if those T&Cs themselves did not adhere to the law. Since they did, Geller has no standing.

Once again: Geller has the right to be a hateful, abrasive, bigoted moron and tell the world all about it. She does not have the right to force Facebook to transmit her words to their users if they don’t want to.

The Wanderer (profile) says:

Devi'ls advocate

I don’t think Geller is misreading “permits” as “orders”. I think she’s using it in place of something like “empowers”, and while she’s wrong about the law and the consequences of her winning would be dreadful, I think her logic has some foundation to it. She still shouldn’t be suing the DOJ, as such; I think what she should be doing, by the logic of her arguments, is suing to overturn Section 230 as being unconstitutional under the First Amendment.

I think the logic is something like this:

In the absence of Section 230, the platform would not be immune to lawsuit over actions taken in moderating user-posted content – e.g., disabling user accounts.

With Section 230 in place, the platform is immune to such lawsuit.

Thus, government intervention (in the form of enacting Section 230) is enabling the platform to shut down speech (by disabling accounts) with an impunity that would not have existed in the absence of that intervention.

Thus, the platform is functioning as a state actor in shutting down speech.

Thus, the law which provides them with the impunity which renders them a state actor in this context is in violation of the First Amendment.

…or something like that. The weak point of that logic is in the idea that the immunity provided by the law transforms the immunized entity into a state actor, and that idea is what would have to be argued and defended in court. The rest of the logic seems sound enough, however.

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