Reps. Gabbard And Gosar Introduce Ridiculous House Companion To Ridiculous Anti-230 Senate Bill From Senator Kennedy

from the push-my-buttons dept

You may recall that, last year, Rep. Tulsi Gabbard decided to file a ridiculously silly lawsuit against Google, claiming that the company had “violated her First Amendment rights” because it temporarily shut down her advertising account, and also because it filtered some of her campaign emails to spam. In a lawsuit that read remarkably similar to the various people arguing that “anti-conservative bias” was the basis for a lawsuit, it made a whole bunch of silly claims that any good lawyer would recognize as frivolous (hold that thought).

The lawsuit was easily tossed out on 1st Amendment grounds. And when I say “1st Amendment grounds,” I mean the court had to explain to Gabbard — a sitting Congressional Representative — that the 1st Amendment only applies to the government and Google is not the government. This is really embarrassing:

Google is not now, nor (to the Court?s knowledge) has it ever been, an arm of the United States government….

[….]

To support its contention that a private actor can regulate elections, Plaintiff directs the Court to Terry v. Adams, 345 U.S. 461, 463 (1953). However, Terry is utterly inapposite to Plaintiff?s contention. In 1954, the Supreme Court held that the Fifteenth Amendment was implicated when a political party effectively prevented black citizens from voting. Terry, 345 U.S. at 463. The Court held: ?The evil here is that the State, through the action and abdication of those whom it has clothed with authority, has permitted white voters to go through a procedure which predetermines the legally devised primary.? Id. at 477. But Terry bears no relation to the current dispute, where Google, an undisputedly private company, temporarily suspended Plaintiff?s Google advertising account for a matter of hours, allegedly based on viewpoint bias.

What Plaintiff fails to establish is how Google?s regulation of its own platform is in any way equivalent to a governmental regulation of an election. Google does not hold primaries, it does not select candidates, and it does not prevent anyone from running for office or voting in elections. To the extent Google ?regulates? anything, it regulates its own private speech and platform. Plaintiff?s ?national security? argument similarly fails. Google protects itself from foreign interference; it does not act as an agent of the United States. Nearly every media or technology company has some form of cybersecurity procedure. Under Plaintiff?s theory, every media organization that took steps to prevent foreign cybercrimes could potentially implicate the First Amendment. Google?s self-regulation, even of topics that may be of public concern, does not implicate the First Amendment.

Pretty embarrassing for a court to need to explain how the 1st Amendment works to someone in Congress, but hey, it’s 2020.

The court jumped straight to the 1st Amendment issue, though it could have easily tossed out the case on Section 230 grounds as well, and it appears that Tulsi has now joined the “destroy Section 230” crowd, teaming up with Rep. Paul Gosar to introduce yet another anti-Section 230 bill in the House. If Gosar’s name rings a bell, he’s the representative from Arizona whose politics are so Trumpian and ridiculous that six of his own siblings took out an ad that told people not to vote for their brother.

So these two have now teamed up to introduce the Don’t Push My Buttons Act. If that sounds familiar, it’s because Senator John Kennedy introduced the same thing in the Senate last week. When that was introduced, we explained just how awful the bill was and that analysis stands. It would take Section 230 immunity away from sites that do some fairly basic data tracking, or if they use an algorithmically generated feed. It makes no sense and seems to serve only one purpose: to frustrate social media companies with annoying nuisance regulation.

The bill seems unlikely to go anywhere, and Gabbard is not running for re-election, so this again seems more for show than anything else, but what a terrible bill to go out on. Gabbard failed in her wacky legal attack on social media, and so as a parting gift she tries to remove their Section 230 protections. Disgusting.

Oh, as a side note: in Gabbard’s original lawsuit she was represented by the lawyers at Pierce Bainbridge. While the specific lawyers working on her case appear to have jumped ship from that firm during the collapse of that firm, the founder of the firm John Pierce, was a “high profile” addition to the defense team of Kyle Rittenhouse, the teenager facing murder charges in Wisconsin. This seemed weird, given that Pierce’s experience is in civil litigation, not criminal, and had to resign from the board of the foundation that he and Lin Wood (another lawyer with quite the recent reputation) had set up to seek funds for Rittenhouse’s defense, after questions were raised about how Pierce presided over the mess that was his disgraced law firm. The full article is worth reading, but just a snippet:

The firm?s financial woes have involved Pierce himself. In March 2020, John Pierce and Pierce Bainbridge were sued by a payday-lender-style financial business called Karish Kapital, which offers emergency cash for businesses. Karish Kapital alleged that Pierce had personally taken out a loan worth nearly $4 million from them and signed over the firm?s assets as collateral.

In a statement to The American Lawyer, a Pierce Bainbridge spokesperson said Pierce was on an ?indefinite leave of absence? and had ?accepted money from Karish Kapital LLC for his personal use.? In May, Pierce told Law360 that he had gone to rehab for unspecified issues.

Pierce?s loan from Karish Kapital marked the start of a cascade of bad news for the firm. On April 9, three named partners left the firm. James Bainbridge, the last remaining named partner aside from Pierce, set up his own separate firm in July, although he remains a partner at Pierce Bainbridge. As of May, Law360 reported, more than 60 lawyers had left the firm in the last six months.

So beyond an embarrassing legal loss, the fact that this was the firm Gabbard chose to file her ridiculous lawsuit against Google seems to raise significant questions about her own judgment in understanding not just the law she’s now seeking to change, but also the people she chose as her lawyers. Perhaps she really should sit out questions regarding internet law.

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Comments on “Reps. Gabbard And Gosar Introduce Ridiculous House Companion To Ridiculous Anti-230 Senate Bill From Senator Kennedy”

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51 Comments
Scary Devil Monastery (profile) says:

Re: Re: Re: Gabbard and Nunes

Forget her, period. If you try to cook soup out of shit the quality of the other ingredients really doesn’t matter. Neither Mein Kampf nor The Communist Manifesto would suddenly be palatable even if you got Morgan Freeman to narrate them.

And a crap politician remains crap even if by blind luck they pitch for a few single issues you can agree with.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

'First amendment? Never heard of it.'

It’s amazing how many politicians are willing to throw the first amendment under the bus the second it gets in their way or doing so would be politically convenient, though given Gabbard had to have it explained to her in court I suppose it’s possible that she literally has no idea what it actually says, and therefore has no idea that she’s attacking it.

As for Gosar, when your own family is actively trying to get you out of public office by supporting your opposition for the election that’s probably a good sign that you’re doing something wrong and need to take a step back to reflect on what you’ve been doing and just how much of your principles you’ve sold for personal gain.

Thad (profile) says:

Re: 'First amendment? Never heard of it.'

It’s amazing how many politicians are willing to throw the first amendment under the bus the second it gets in their way or doing so would be politically convenient, though given Gabbard had to have it explained to her in court I suppose it’s possible that she literally has no idea what it actually says, and therefore has no idea that she’s attacking it.

Nah. It was a publicity stunt to try to draw some attention to her failing campaign. It sort-of worked in that it got her name back in the news, but whatever temporary name recognition it bought her didn’t translate into any delegates.

As for Gosar, when your own family is actively trying to get you out of public office by supporting your opposition for the election that’s probably a good sign that you’re doing something wrong and need to take a step back to reflect on what you’ve been doing and just how much of your principles you’ve sold for personal gain.

I think you’re making a category error in implying he had any principles to sell.

Sharur says:

Re: 'First amendment? Never heard of it.'

I have to disagree with you on the family front (though I agree with everything else), necessarily signifying something is wrong.

They could just not like him and/or oppose his politics. I mean, I have family who I would publicly oppose if they ever tried to run for public office.

In fact, I feel that the expectation that a candidate’s family support them is the normalization of the political tribalism that has brought us to where we are now.

Scary Devil Monastery (profile) says:

Re: Re: 'First amendment? Never heard of it.'

"I have to disagree with you on the family front (though I agree with everything else), necessarily signifying something is wrong."

If most of a family appears in an attack ad against you that indeed indicates something is seriously wrong – either with you or with your family. Potential voters should at least try to figure out which part of that equation was wrong.

One issue with americans seems to be that the political polarization is entrenched, with 80% of the voting citizenry solidly voting for their chosen party no matter if the candidate is John Q Doe, Hitler, or Voldemort. It’s like a throwback to the concept of "My country, right or wrong" which held europe in a grip of recursive wars for centuries.

And that is dangerous. Plato’s old line about those too smart or moral to engage in politics becoming governed by those less gifted right there in action. "Idiocracy" should have been satire, not a plausible future.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 'First amendment? Never heard of it.'

"I’d love to have a president who sought out the smartest man in the world and listened to his advice about now."

Quite a few have. Obama tried to surround himself with experts – and roughly half of the US citizenry was so traumatized by the double whammy of a Black Man President and Book Learnt Politics that to this day they meet every perceived grievance with the plaintive bleating of "But Obama!".

I think I’d love to have a citizenry where active hostility to education and science was held by an insignificant minority only. That might get you a president who holds similar beliefs.

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Anti conservative bias.

Right-wing media conglomerates run a majority of the newspapers, and while they whine about the bias of the left wing media they know that outlets like Fox get big ratings.

They’re only whining here because their preferred form of bias is not being held by social media, the others are OK because they agree with the form of bias there.

Scary Devil Monastery (profile) says:

Re: Well, what law is she conversant in?

"Gabbard avoiding laws, lawyers, and talking are all reasonable suggestions to get her below the Streisand Effect."

No such thing as "bad" publicity for a republican these days;

GOP candidate: "I eat babies for breakfast and bludgeon puppies. Vote ME for congressman! You can trust me, I’m white, unlike my opponent!"

Liberals: "What the actual fuck? <GOP candidate> is a sick, demented, evil person!"

GOP Voters: "Liberals hate <GOP candidate>? He’s our man for sure. All hail <GOP candidate>!!"

I’d argue that today if a republican politician wants to unite every republican in his favor all he needs to do is to make sure it’s known among his electorate that liberals despise him. After that it doesn’t matter at all what his actual politics are.

Scary Devil Monastery (profile) says:

Re: Re: Re: Well, what law is she conversant in?

"Gabbard is a Democrat."

That, I missed. A few googles down the road I can only ask why that woman still sees herself as a democrat. Good grief.

So the deranged rider to the anti-230 bill introduced in the OP is a "bipartisan" effort, with Gosar digging up Fox News favorite democrat for the joint effort.

Peter CM (profile) says:

And isn't that a convenient legal fiction.

[T]he 1st Amendment only applies to the government and Google is not the government.

And isn’t that a convenient legal fiction for a corporation that controls such a huge chunk of public discourse and information flow. Alphabet/Google is ranked # 2 on Fortune’s US 500 and # 30 on its Global 500, and its primary shareholders rank high in the Forbes 400. In the US, with its laughably weak conflict-of-interest and corruption rules for politicians and its lack of constitutional protections against "private" abuses of power, that makes Alphabet/Google a powerful member of the de facto government.

In some states, courts or legislatures have found that privately owned shopping malls and the like are de facto public fora and mandate that political speech like petition-gathering be allowed there — even though the shopping-mall owners "aren’t the government."

I’m not arguing that repealing Section 230 is the solution or that Tulsi Gabbard is God’s gift to humanity in all things, but the author needs to rein in the one-sided invective. The road to inverted totalitarianism is paved with specious arguments distinguishing private actors from government ones. When Google suspended Gabbard’s campaign advertising in the wake of a successful debate performance, that was gross interference in the political process by a leading de facto oligarch, and Google should have been kneecapped for it in court.

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Anonymous Coward says:

Re: And isn't that a convenient legal fiction.

And isn’t that a convenient legal fiction for a corporation that controls such a huge chunk of public discourse and information flow

No, because:-

1) There are other outlets for your speech, including the street corner.
2) Google cannot stop you using those other outlets, while the government can.

Also note, that you voice has a magnified reach, even if banned from the popular platforms, compared to what it most likely had pre-internet. That is before the Internet, unless your speech was accepted for publication by a corporation, you had the street corner for you soap box and or leaflets that you printed at your own expense, and usually using your own time.

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PaulT (profile) says:

Re: And isn't that a convenient legal fiction.

"And isn’t that a convenient legal fiction"

No, it’s literally what the law states.

"a powerful member of the de facto government"

Where in the first amendment is it stated what this alternative government looks like and at what point private enterprise needs to be seized and treated as public property?

"The road to inverted totalitarianism is paved with specious arguments distinguishing private actors from government ones"

No, you’re thinking of a situation where the government can arbitrarily seize private property and remove rights because they’ve been termed as public property.

"When Google suspended Gabbard’s campaign advertising in the wake of a successful debate performance, that was gross interference in the political process by a leading de facto oligarch, and Google should have been kneecapped for it in court."

So, you’re saying that Google and their staff should lose their free speech rights because they used those rights in a way in which you disapprove?

Thad (profile) says:

Re: And isn't that a convenient legal fiction.

And isn’t that a convenient legal fiction

…sorry, did you just describe the statement "Google is not the US government" as a "fiction"?

You seem confused. It’s a fact.

When Google suspended Gabbard’s campaign advertising in the wake of a successful debate performance

Stop it, you’re killing me.

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restless94110 (profile) says:

Distsorted

"You may recall that, last year, Rep. Tulsi Gabbard decided to file a ridiculously silly lawsuit against Google, claiming that the company had ‘violated her First Amendment rights’"

You have a real distorted idea of "silly."

Google deliberately hurt Gabbard’s ability to fund raise by censoring her. It’s tortuous interference and it’s un-American.

Your stout defense of this totalitarian evil, while snidely and snarkily putting down anyone who makes an effort to fight it and prevent it, exposes a fundamental defect in your thinking.

They coming for you next, Mike and Tim and Tech Dirt, they coming for you, by and by.

PaulT (profile) says:

Re: Distsorted

"Google deliberately hurt Gabbard’s ability to fund raise by censoring her."

State the law that requires Google to help her fundraise.

"It’s tortuous interference and it’s un-American."

No, un-American would be the government telling a private entity what they can do with their business. Or, at least that’s what you idiots keep telling me whenever the subject of corporate regulation comes into play on a subject that isn’t some Republican crying about consequences for their own actions.

Scary Devil Monastery (profile) says:

Re: Re: Re: Getting Better

"But still high enough standards that she didn’t get a single delegate."

Naturally. The dems had the choice between Bernie and Biden. It’s pretty clear the democrat-in-name-only who kept carrying water for the Trump cult wasn’t exactly a high priority. The DNC needed someone able to not alienate any significant portion of the voters amassed under it’s ridiculously oversized tent.

I think what the US actually needs is someone like Bernie, preferably twenty years younger. What the democrats will offer is instead a nonentity so bland no one has that much to say against him/her. Biden only has two solid points against him; That he’s on the pseudo-rapey side of creepy and that he’s sold himself to campaign donors more often than most working girls in Vegas.
And yet that’s somehow still not a showstopper in US politics. Weird. Even given that they could, by now, pitch a red-arsed babboon against Trump and have good odds of winning the popular election.

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