Trump Notifies Attorney General He's Challenging The Constitutionality Of Section 230 On The Dumbest Grounds Possible

from the congress-made-companies-free-not-to-do-anything-to-encourage-censorship? dept

As you know, last week Donald Trump sued Facebook, Twitter, and YouTube in ridiculously dumb cases (which seemed to only really serve the purpose of continuing his culture grievance war and to be used as a fundraising hook). In each case, they claimed (incorrectly) that the private companies violated the 1st Amendment by kicking Trump and others off the platform and that Section 230 itself was somehow unconstitutional.

Two days later, it appears that someone on the legal team realized that when you file a lawsuit claiming that a federal law is unconstitutional, you have to file a notice of constitutional question, which effectively alerts the DOJ/Attorney General that someone, somewhere is challenging the constitutionality of the law.

Trump has now done so with identical such filings for YouTube, Twitter and Facebook. The notice is as short and sweet as it is ridiculous:

1. Section 230(c)(1) and 230(c)(2) were deliberately enacted by Congress to induce, encourage, and promote social medial companies to accomplish an objective?the censorship of supposedly ?objectionable? but constitutionally protected speech on the Internet?that Congress could not constitutionally accomplish itself.

2. Congress cannot lawfully induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.? Norwood v. Harrison, 413 US 455, 465 (1973).

3. Section 230(c)(2) is therefore unconstitutional on its face, and Section 230(c)(1) is likewise unconstitutional insofar as it has interpreted to immunize social media companies for actions, they take to censor constitutionally protected speech.

This argument has been made a few times, and it’s incredibly dumb. The citation to Norwood is beyond silly for some very, very basic reasons. While it is true that the government “may not induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish,” there is absolutely nothing in Section 230 that induces or encourages any action that is constitutionally forbidden.

Companies have every constitutional right to remove people who violate their terms of service. They have every constitutional right to say “I don’t want to host your speech.” None of that is constitutionally forbidden.

And nothing in Section 230 “induces” or “encourages” any behavior. What it says is that websites are free to moderate how they want, without fear of liability. Indeed, one of the biggest complaints from many (especially most of the early Section 230 lawsuits, and the Prodigy lawsuit that inspired Section 230 in the first place) was that without Section 230, websites would be much faster to remove all sorts of content out of fear of liability. If you’re trying to induce websites to take down content that the government cannot force to be taken down, you don’t do it by saying “you’re not liable if you leave all that content up.” That would be the dumbest inducement possible.

What still astounds me is that no one who is filing these lawsuits seems to recognize that if Section 230 were actually found unconstitutional, it would mean that websites would be much, much quicker to remove the likes of Donald Trump and his propaganda-spewing allies, because the risk of liability from lawsuit would be too great, and the 1st Amendment would still be around to protect their moderation choices.

And I won’t even bother responding to the idea that 230 was put in place to encourage censorship on social media when social media… didn’t exist when Section 230 was put in place.

Either way, it will be interesting to see if this move leads the DOJ to now get involved — and what it will say in this case. After all, we (unfortunately) still have Joe Biden on record insisting that Section 230 should go away.

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Companies: facebook, twitter, youtube

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Comments on “Trump Notifies Attorney General He's Challenging The Constitutionality Of Section 230 On The Dumbest Grounds Possible”

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That One Guy (profile) says:

"If I can't sue you for exercising your right you violated mine!

Ah what a delightfully stupid argument. A law that protects someone’s first amendment right by making clear that exercising it is not something you can be sued over is somehow portrayed as against it because certain groups/people don’t like how it’s used.

And of course adding to the hilarity/gross hypocrisy the people trying to gut 230 as ‘unconstitutional attacks on free speech!’ tend to be the same people supporting actually unconstitutional laws that allow the government to force speech to be kept up on private property, funny how they only seem to care about ‘free speech’ when it comes to their ‘free speech’.

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Chozen says:

Re: "If I can't sue you for exercising your right you violated m

"Ah what a delightfully stupid argument. A law that protects someone’s first amendment right by making clear that exercising it is not something you can be sued over is somehow portrayed as against it because certain groups/people don’t like how it’s used."

Giving a special immunity cut out violates my 14th Amendment right to equal protection.

If I call a respected medical doctors presentation Misinformation like YouTube does that is libel. I damn well better be able to defend my argument in court. I just cant hide behind immunity.

Where is my equal protection? Where is my immunity?

Scary Devil Monastery (profile) says:

Re: "If I can't sue you for exercising your right you violated m

"A law that protects someone’s first amendment right by making clear that exercising it is not something you can be sued over is somehow portrayed as against it because certain groups/people don’t like how it’s used. "

It’s nice to see Trump’s legal counsel has maintained it’s traditional quality standard, if nothing else. I was a bit worried he’d be left high and dry without Powell and Giuliani having his back in court.

But as TAC implied, above, Trump really has a knack for attracting the "Top Men" in their chosen field. Said field being Flatulism, mind you, but you can’t deny their expertise in that.

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Bloof (profile) says:

‘Section 230(c)(1) and 230(c)(2) were deliberately enacted by Congress to induce, encourage, and promote social medial companies to accomplish an objective—the censorship of supposedly “objectionable” but constitutionally protected speech on the Internet—that Congress could not constitutionally accomplish itself.’

Section 230 became law in 1996. Facebook was founded 2004, Twitter in 2006, YouTube in 2005, Google in 1998, MySpace in 2003… Cox and Wyden sure thought ahead writing a law to silence conservatives using platforms that wouldn’t be founded for years!

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"Even if the atty is honest, there seems to be a risk of non-payment associated with working for Trump."

…or the bar association taking back or suspending your license to practice law.

Honestly I’d have to say that anyone remotely competent still working for Trump in the legal arena either does so because they can get paid for their services right away without relying on the spontaneously evaporating line of credit usually associated with their client…or they’re in it because they want to abandon law practice in favor of politics and are hoping they can come off as being just the person the average Qanon drone will want to send to Washington to represent them.

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

Re:

Prerequisite for the job I’d say, someone has to be either a raging idiot, equal parts grossly dishonest and opportunistic or both to work for/with Trump after seeing how he treats those around him, especially those in positions where they will be thrown under the bus/screwed over the second they become a liability or it’s advantageous for Trump to do so.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Re:

"Except he doesn’t pay them in the end, as Rudy’s just found out."

Rudy’s naívety does strike me as odd. It’s as if knowing Trump for all of his NY career somehow didn’t prepare him for the fact that Trump would happily stiff him on the pay as well.

I guess we’ll just have to take solace in the fact that the asshole trying to defraud the US as a whole on behalf of Dear Leader isn’t being paid for being the architect of his own destruction.

PaulT (profile) says:

Re: Re: Re:3 Re:

I don’t think it’s naiveté on Rudy’s part, it’s that he’s normally part of the grift. The problems here are that he accepted an impossible task (no, you can’t prove Trump won the election because the failure was too great). Then, he spent months putting on bizarre displays of performance art that made even the cultists wonder what was going on, up to the point where he and his collaborators are being directly sued for huge amounts of money.

He made himself a liability to the grift, so he got left with the bill. Why he didn’t see that coming is anyone’s guess, but I suppose his long-term relationship with Trump fooled him into a false sense of security. Assuming that his strange behaviour was just performance art and not a sign of actual mental illness.

ECA (profile) says:

Dear Mr. Trump

How many people have you fired for saying something you didnt like?
How many have been fired because someone in your hotels, got upset about something?
Are you responsible for the idiocy of those in your family or those running your hotels? Even if they are doing the right thing?
How many low paid white people do you have working for you compared to emigrants?
Will you be responsible to the republican party for ANY comments they say?

Have you tried every loophole you can find to save your But, from paying taxes? Have you hidden funds in your companies?
Are you responsible for those that raised the congress? Will you take the responsibility?

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Chozen says:

Re: Dear Mr. Trump

"How many people have you fired for saying something you didn’t like?"

Only time that came up my employer got introduced to the states " lawful conduct" statute really quick.

Yes states have the right to restrict an private employers ability to fire employees for what they say.

Again Tech Dirt is Mike’s Libertarian fantasy land.

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Stephen T. Stone (profile) says:

Re: Re:

Yes states have the right to restrict an private employers ability to fire employees for what they say.

Those protections aren’t absolute. Or are you arguing that an employer shouldn’t be able to fire a white employee who says the N-word to a Black person?

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"Or are you arguing that an employer shouldn’t be able to fire a white employee who says the N-word to a Black person?"

He might have a point if it weren’t for those pesky "codes of conduct" the employee usually signs to upon being employed.

I’m not too surprised to see Baghdad Bob, under his latest nick, try to claim expertise in yet another subject he obviously doesn’t know jack shit about.

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Chozen says:

Re: Re: Re:2 Re:

"He might have a point if it weren’t for those pesky "codes of conduct" the employee usually signs to upon being employed."

It all depends on the state. In California the most well known example of ‘otherwise lawful conduct’ policies the law only allows for such clauses in any contract of bargaining agreement if the

"agreement is necessary to protect the essential enterprise-related operations of the employer and breach of the agreement will result in a material disruption of the essential enterprise related operations of the employer"

Most ‘otherwise lawful conduct’ states have such provisions. If they didn’t the ‘otherwise lawful conduct’ statute would be moot.

This is very limited. You "L"ibertarians have a warped view of the real world. States have every right and power under law to limit what can and cannot be included in any contract.

Scary Devil Monastery (profile) says:

Re: Re: Dear Mr. Trump

"Yes states have the right to restrict an private employers ability to fire employees for what they say. "

Except if the employee has signed an employment contract where they agree to abide by the companys Code Of Conduct in which case the employer can fire the employee upon breach of those conditions without possibility of recourse or redress. Much the same as a visitor to a site or customer to a store can be denied business on violations of ToS.

I’d say you aren’t very good at this, Baghdad Bob, but we knew that already.

I swear, it’s beyond ridiculous that years after you started whining around here your most visible tell is where you try to drop an argument into the debate which…isn’t exactly the coup de grace you envisioned…

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Chozen says:

Re: Re: Re: Dear Mr. Trump

To this point. You may have noticed that the NFL in 2020 had to change their collective bargaining agreement over off-season marijuana use because the CBA was illegal in many states that have legalized marijuana.

Basically they couldn’t argue that prohibiting off-season pot use had an "essential enterprise-related operations of the employer and breach of the agreement will result in a material disruption of the essential enterprise related operations of the employer."

As such they had to strike the illegal provision from the CBA.

Again for the 100th time on this ignorant site.

A CONTRACT CANNOT BE IN VIOLATOIIN OF PULBIC POLICY!

Get that through your thick "L"ibertarian skulls.

Khym Chanur (profile) says:

And I won’t even bother responding to the idea that 230 was put in place to encourage censorship on social media when social media… didn’t exist when Section 230 was put in place.

I think what they’re trying to say is "the tech industry leans liberal, so any law which gives the tech industry more free reign to do as they want will negatively affect conservatives". (Not agreeing with them, just trying to untangle their words)

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That One Guy (profile) says:

Re: From the party that brought you 'small government'...

‘The free market is sacred and beyond reproach, regulations are government tyranny!’

‘The free market says most of the public doesn’t want to be around or associated with people like you.’

‘Screw the free market, bring on the regulations only for companies I don’t like!’

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Scary Devil Monastery (profile) says:

Re: Re: Re: From the party that brought you 'small government'...

"Those 1980s Corporate Libertarians are all democrats now."

The Fscking Federalist Society is democrat?

Wow.

You know, Baghdad Bob…it’s not that we demand you’re always factually correct in your assertions. But you have Trump beaten in this; You haven’t to my knowledge managed to produce a single line which wasn’t factually untrue.

I guess that’s a sort of genius.

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ECA (profile) says:

Re: Re: Re: Re:

Prob we had back then was someone had this great idea about Trickle down.
It was a trick alright. The idea that once a Rioch person gets enough, he will give the rest away or at least pay his employees more.
But under any format of this idea, the Gov was giving money to the rich. So it was Still our money. They could have lowered taxes on the poor and at least had a chance.

Conspiracy idea is.
No matter what you do the Corps tend to know how much you have in your pocket. And bring prices out that are to high, and those with extra money Will buy them. Then they lower the prices and that Next level Buys them, on down the line.
Then we can add the Commodities market, and How in hell your food Is marked up Higher then the Clothing markup. 50x by the time it gets to the store.
By the time you are done with all the markets, your pockets are empty.
If the Gov. lowered taxes on the lower levels of our society, the companies would just raise prices and NOT wages.

sumgai (profile) says:

Re: Social media

Well, that would depend on how you define "society". If you mean the populace in general, then you’re off by 8 or 10 years, give or take. If you meant the cognoscenti (computer users who had the patience to learn how to operate their stuff), then I’ll agree with you.

I’ll take bets that no one who has ever been admitted into #45’s presence has ever even heard the words "Usenet" or "IRC", let alone can actually use either of them.

PaulT (profile) says:

Re: Re: Social media

"I’ll take bets that no one who has ever been admitted into #45’s presence has ever even heard the words "Usenet" or "IRC", let alone can actually use either of them"

Chances are that many of them were screaming about the internet being some kind of demon plot to corrupt their kids until they decided it was useful to have it to communicate with those kids later on. Then the indoctrination of the gullible began….

PaulT (profile) says:

Re: Social media

It depends on how you define "social media". If it’s just methods of communicating with people online, sure. But, in the sense that it usually applies to the modern way of describing it, that misses a lot of features people would consider vital to its operation today.

Wikipedia has the following broad definition, which would not make those services "social media", though they certainly have aspects that would be precursors:

  1. Social media are interactive Web 2.0 Internet-based applications.[2][5][6]
  2. User-generated content—such as text posts or comments, digital photos or videos, and data generated through all online interactions—is the lifeblood of social media.[2][5]
  3. Users create service-specific profiles for the website or app that are designed and maintained by the social-media organization.[2][7]
  4. Social media helps the development of online social networks by connecting a user’s profile with those of other individuals or groups.[2][7]

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Chozen says:

Well Then

Well then a red state senator can just pass a law called the "Reprocuctive Decency Act" with its own section 230 that gives immunity to person that blocks access to an abortion clinic. I’m not statutorily encouraging anyone to take the action.

How about we pass the e-mail decency act which immunizes anyone who hacks a CEO’s e-mails and publishes them to a public database.

Chris Cox was admittedly trying to provide incentive for private actors to restrict speech because as he put it the internet was "the wild west" and it needed "incentive to keep the internet civil.” Section 230 was that incentive.

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Stephen T. Stone (profile) says:

Re:

Chris Cox was admittedly trying to provide incentive for private actors to restrict speech

He wanted private actors to moderate speech because the government couldn’t (and shouldn’t). And private actors can, with few exceptions, legally restrict speech on property they own. Anyone who says otherwise is arguing for compelled speech.

Anonymous Coward says:

More than the big lie this is turning into the "Biggest Circus" on this century.

All because Trump is mentally damaged and unable to recognize he lost. That or his tax cheating is really comming back to bite him and he needs presidential power to save himself. Its never easy to tell the motivations of the criminally derranged.

Scary Devil Monastery (profile) says:

Re: Re:

"All because Trump is mentally damaged and unable to recognize he lost."

Albeit true…it’s a bit worse than that; Trump may be damaged but the reason he ever got to where he is is because 30% of the US citizenry are equally damaged.

And that’s fscking horrifying to consider. Hitler had to make do with only 12% of the citizenry actively on his side. We’re all very lucky that Trump, albeit malicious enough, is an inept and vainglorious clown. Let’s just hope the GOP doesn’t by a miracle manage to produce a strongman with a few actual competencies.

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PaulT (profile) says:

Re: Question about the Document

Also from the UK here, but my understanding is that US presidents retain the title as a formality even after they’ve been chased out of office in disgrace by a public majority he pretends doesn’t exist. You might often see "former president" in stead of "president", but I think both are valid.

Also, we’re talking Trump here – he doesn’t have a track record of hiring competent lawyers, since so few of those refuse to work for him (either out of having higher standards, or just liking to get paid at the end). Chances are this is yet another bit of red meat to the dumbest among his base, not something that’s expected to be seen as valid by the court.

That One Guy (profile) says:

Re: Re: Question about the Document

Given a higher than zero number of his cultists are apparently still of the belief that he totally won the last election and is the real president even if the rest of the government disagrees I could absolutely see calling himself ‘president’ in legal documents as just another part of the bullhorn that comprises this stunt/fundraiser.

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