DOJ To Anti-Muslim Troll Pam Geller: You're Suing The Wrong Entity, Genius

from the DOJ-motion-tl;dr:-what-even-is-this dept

There simply aren't enough derogatives in the dictionary to apply to Pam Geller's lawsuit against the DOJ for its "enforcement" of Section 230. Geller doesn't appear to know what she's doing, much less who she's suing. Her blog posts portray her lawsuit against the DOJ as being against Facebook. Facebook has earned the ire of Geller by enforcing its terms of use -- rules Geller clearly disagrees with.

Somehow, Geller has managed to construe the actions of a private platform as government infringement on her First Amendment rights. The connective tissue in her litigious conspiracy theory is Section 230 -- the statute that protects service providers from being sued for the actions of their users.

Considering Geller's fondness for posting inflammatory content, you'd think the last thing she'd want to attack is Section 230. A successful dismantling of this important protection would mean Geller would be even less welcome on any social media platform.

But the burning stupidity propelling Geller's white-hot hazardous waste dump of a lawsuit knows no bounds. Somehow, actual lawyers -- working in concert with Geller -- came up with this breathtakingly wrong interpretation of Section 230.

Section 230 confers broad powers of censorship, in the form of a “heckler’s veto,” upon Facebook, Twitter, and YouTube censors, who can censor constitutionally protected speech and engage in discriminatory business practices with impunity by virtue of this power conferred by the federal government.

These are the sorts of allegations the DOJ somehow must respond to, thanks to Geller suing Facebook by suing the DOJ or whatever the hell it is that's happening here.

The DOJ has responded [PDF]. It also finds the lawsuit to be a monument of mouth-breathing stupidity but is unable to say so in those exact words. Instead, it simply points out that everything about the lawsuit is wrong -- especially the parts where Geller insists the DOJ is somehow on the hook for "forcing" service providers to avail themselves of the Section 230 "heckler's veto." (h/t Adam Steinbaugh for sending over the motion to dismiss)

Plaintiffs’ alleged injury—a private social-media company’s removal of content from a particular user’s account pursuant to that company’s private terms of service—is not an action that is fairly traceable to the United States or the federal statute Plaintiffs identify in their Complaint—Section 230 of the CDA. Instead, Plaintiffs’ allegations make clear that they are aggrieved by the decisions of private third parties, whom the United States does not control and whose actions it cannot predict. Plaintiffs’ alleged injury is also not redressable by their requested relief. Plaintiffs request that the Court declare Section 230 to be unconstitutional and to enjoin the Attorney General from enforcing this provision. But the Attorney General does not enforce Section 230 against private parties. To the contrary, this provision merely provides an immunity that a private party can invoke as a defense in a private civil lawsuit. Because the Attorney General does not enforce Section 230 against anyone, an injunction prohibiting such non-existent enforcement would be meaningless and would not redress Plaintiffs’ alleged injury.

The DOJ goes on to point out that even if Geller and her lawyers could assemble a coherent claim, they're going after the wrong party. The correct target would be Facebook -- which Geller seems to believe is the entity she's actually suing -- rather than the US government, which has nothing to do with the perceived "censorship" Geller's complaining about.

[E]ven if Plaintiffs could establish Article III standing, they fail to state a cognizable constitutional claim because they do not identify any state action that could implicate the First Amendment. It is axiomatic that the First Amendment applies only to the government’s restriction of speech, and not to a private individual or entity’s decision to permit or restrict speech. Yet Plaintiffs challenge a quintessentially private decision in this case—a social media company’s control of its platform pursuant to its terms of service. Under well-established state-action principles, Plaintiffs cannot show that Section 230 caused the constitutional deprivation they allege, or that the entities causing the injury—private social media companies—are state actors. Therefore, Plaintiffs fail to state a claim under the First Amendment and judgment should be entered in favor of the United States.

This judgment is sure to follow presumably with the judicial version of "lolwut" and a dismissal with prejudice. It's not like an amended complaint could fix this brutally-misguided lawsuit. To begin with, it needs an entirely different defendant (Facebook) and the excision of anything involving Section 230, because nothing about that protection has anything to do with the issues Gellar's complaining about. If Geller doesn't like the way Facebook treats her, she's free to complain directly to the company. It likely won't do her any good, but trying to take a company to court for enforcing its terms of use isn't going to go much further than suing the DOJ over service provider immunity.


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  • icon
    OldMugwump (profile), 3 Oct 2016 @ 9:57am

    The lawyers involved should be disbarred

    For incompetence and disservice to their client.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Oct 2016 @ 11:11am

      Re: The lawyers involved should be disbarred

      ha ha ha... we would lose more then 50% of our lawyers... but I am for it!

      reply to this | link to this | view in chronology ]

    • identicon
      Mephox, 3 Oct 2016 @ 12:34pm

      Re: Re: The lawyers involved should be disbarred

      I think the UI control placement is confusing people. The comment above (in threaded view only) is clearly spam, but the comment below (again, only in threaded view) is the one getting flagged.

      reply to this | link to this | view in chronology ]

      • identicon
        Mepho, 3 Oct 2016 @ 12:36pm

        Re: Re: Re: The lawyers involved should be disbarred

        Whoops. It looks like I'm confused! Missed the light gray text... Bad monitor. My apologies.

        reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      HAYWOOD JABLOME, 3 Oct 2016 @ 1:02pm

      Re: The lawyers involved should be disbarred

      THE MOSLEMS INVOLVED SHOULD BE EXTERMINATED.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Oct 2016 @ 10:11am

    Hecklers veto; isn't that the power that she wants to exercise as a political activist?

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Islam is still shit, 3 Oct 2016 @ 10:15am

    Lol, "anti-muslim troll", wonder if we will ever see "muslim troll" in a techdirt headline considering islam is nothing but trolling. Naaaah, we won't.

    reply to this | link to this | view in chronology ]

  • icon
    Isocrates (profile), 3 Oct 2016 @ 10:21am

    Nationalizing Private Companies?

    I'm sorry... did a right wing political activist just call for the nationalization of Facebook, Twitter, and YouTube? What?

    reply to this | link to this | view in chronology ]

  • icon
    Bt Garner (profile), 3 Oct 2016 @ 10:28am

    You know about those right wingers and their socialism. Inseparable.

    reply to this | link to this | view in chronology ]

    • identicon
      Skeeter, 3 Oct 2016 @ 8:11pm

      Re:

      Being as Socrates was the father of Socialism, and his idea was that children be taken from their parents at birth, the state designate their lives and train them appropriately, as the state needed, and that each would have a 'life-vocation' that they could not aspire beyond while the 'ruling oligarchy' stayed entrenched forever; I hardly see what she seeks (or the Right Wing, for that matter) as fitting that description.

      No, Hitler used the term properly with 'National Socialist Labor Party' (shortened to 'Nazi'), and the Left Wing (aka Progressive Socialists) has upheld that inheritance since its founding. Hey, maybe you need to look up Progressive-Eugenics, to see the FULL nature of the party you espouse, before you sound like more 'gestapo drool' first.

      Oops, too late.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 4 Oct 2016 @ 12:03am

        Re: Re:

        "Being as Socrates was the father of Socialism"

        Even if true, do you want right-wing ideals from the same time period to be used against you? Because it would be similarly unflattering. Do you have any discussion from the time-period and culture we live in today?

        "the party you espouse"

        He didn't mention a party. How did he espouse one?

        Just like most people who troll random sites with blathering about the "left wing", you're tilting at windmills.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Oct 2016 @ 10:30am

    Reading through the details, it appears that her claim is that the actions that of Facebook are not just legal, but that the government explicitly said that those specific actions are legal(Through section 230 somehow). In response she is suing the government because of the laws that it passed. If she represented a large company, it might work through an "Investor state dispute settlement", but without a specific crime this argument wont work in a US court.

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 3 Oct 2016 @ 10:32am

    It's way past time

    So let's briefly summarize some of the recurring claims by the Internet Association of the Butthurt...

    Facebook = US Government
    Google = the Internet

    Yep, we're way overdue for some chlorine to be added to the human gene pool

    reply to this | link to this | view in chronology ]

  • identicon
    Michael, 3 Oct 2016 @ 10:41am

    Instead, Plaintiffs’ allegations make clear that they are aggrieved by the decisions of private third parties, whom the United States does not control and whose actions it cannot predict

    Excellent, we can now copy and paste this into every response to a lawsuit for infringement brought against a website full of user-generated content.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 3 Oct 2016 @ 11:37am

    If only the bar actually gave a shit about punishing lawyers who file bogus lawsuits to line their pockets.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Oct 2016 @ 12:04pm

    Yes BUT- There is a problem here

    Hmm

    Its all very well to crow over the stupidity of this-but it shouldn't blind you to the fact that there is a problem here.

    The problem is simply this: When private corporations in the media business (traditionally newspapers later TV channels) become big their ability to control the agenda and, frankly, to propagate lies and silence the voices that might expose them becomes so great that it is comparable to that of a government. Now goverments in most western countries are constrained to display some fairness by laws around freedom of speech etc. However these laws do not constrain the corporations.

    Those of us on the left complained bitterly about this (and still do) when the perpetrator is one Rupert Murdoch and the corporate brand is The Sun or Fox News. However when the entity is Facebook, the perpetrator is Mark Zuckerberg and the complainant is on the right or holds a particular opionion that we (in my opinion stupidly) disagree with then we suddenly don't see a problem.

    (and incidently it is pretty well documented that Facebook does have an unreasonable bias in this area.

    see http://www.jpost.com/Arab-Israeli-Conflict/When-it-comes-to-incitement-is-Facebook-biased-against-Is rael-439436 )

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Islam is still shit, 3 Oct 2016 @ 12:15pm

    Impotent rageflagging, causing everyone to click my comment to see what some safe space crybabies didn't like? Oooh, all these microaggressions on the evil interwebs! I am humbled by the knowledge I made you rageflag and will f5 the fuck out of it to see if I once again affected your existence negatively, my rageflagging friends :)

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    dm, 3 Oct 2016 @ 12:46pm

    Why all the hate for Pam Geller?

    All the white knighting for a religion that requires death for homosexuals, death for apostates, severe oppression for women and much, much more? Bizarre. All religions are stupid and Islam is the worst of the bunch.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Oct 2016 @ 1:19pm

      Re: Why all the hate for Pam Geller?

      The bible advocates death for homosexuals, death for apostates, severe oppression for women and much, much more

      reply to this | link to this | view in chronology ]

    • identicon
      Islam is still shit, 3 Oct 2016 @ 1:38pm

      Re: Why all the hate for Pam Geller?

      Soft racism. They associate Islam with non-whites, so instead of recognizing it as a brutal and powerful tool of oppression it becomes something to defend, because they view non-whites as poor and helpless victims pretty much automatically. Criticizing Islam becomes racist by default because to them whites are smarter and better and should not pick on the less fortunate. Soft racism is the most common racism these days, it's bizarrely condescending and comes with lowered expectations poorly disguised as sympathy.

      In short, instead of treating Islam as the global power that it is, they treat criticism of it much like they might mockery of a starving Ethiopian child, because to the soft racists, it is all the same - non-whites are always the victims because they are too pitiful to be anything else. The reality that Islam is a religion not associated with race eludes them completely, they have made the link and it's staying! So opposing a religion becomes "racism", like that makes any sense at all, and racism must be fought and the victims of it must be defended! Very confused people.

      reply to this | link to this | view in chronology ]

    • identicon
      Thad, 3 Oct 2016 @ 4:30pm

      Re: Why all the hate for Pam Geller?

      Because Pam Geller is a ridiculous person.

      Whether or not you agree with her views on Islam isn't really relevant to whether this lawsuit is absurd and incoherent. Which it is.

      reply to this | link to this | view in chronology ]

    • identicon
      Harald K, 3 Oct 2016 @ 11:34pm

      Re: Why all the hate for Pam Geller?

      Why the hate for Pam Geller? Well, she boasted of getting a mail from a young Norwegian man who planned "armed resistance" in Norway, and that she wouldn't out this guy because she thought it was justified. She deleted that post when ABB went on his massacre.

      Pamela Geller goes way beyond "criticizing Islam". In her worldview, a war of eradication is the only option - genocide first, then maybe just cultural eradication once sufficiently many have been killed. You're entitled to your own opinions, and you're entitled to self defense, but when your opinions are this extreme, you have to settle for one or the other. Else you can't complain about being locked up for the rest of your life for safety reasons.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 4 Oct 2016 @ 12:09am

      Re: Why all the hate for Pam Geller?

      Because the majority of her trolling is half-truth or lies, sprinkled with subtle racism and rampant xenophobia that encourages attacks against non-whites - including people who aren't Muslim (her fans aren't educated enough to know the difference between Muslims and Sikhs, for example) and Muslims trying to escape the violence and oppression you describe.

      Disliking a single hateful person for her own actions makes a lot more sense than hating every one of 1.1 billion people from a wide range of ethnic backgrounds, cultures and sects (whose violence when enacted is usually against other Muslims), that's for sure.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Oct 2016 @ 7:06am

      Re: Why all the hate for Pam Geller?

      Article critical Geller's filing of a completely ludicrous lawsuit != Hating Geller or what she stands for

      Not that I agree with what she stands for.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Oct 2016 @ 1:17pm

    She would be funny if it wasn't for the fact that her hate, bile and lies weren't taken seriously by far too many people.

    Hate breeds hate

    reply to this | link to this | view in chronology ]

  • identicon
    Harald K, 3 Oct 2016 @ 11:26pm

    Not out of any sympathy for Pam Geller (a woman who in all likelihood could have prevented the Utøya massacre, but didn't), but there's a certain argument that if Facebook & co. are not responsible for what their users do - if they're a common carrier so to speak - then they should also have restrictions on what censorship they can do.

    Because as you very well know, "they're a private company, they can do as they wish, first amendment doesn't apply to them" isn't without problems when it comes to a company at Facebook's size. Phone companies are private too, they still shouldn't be allowed to deny service to nazis.

    If you want no legal liabilities for what your users use your service for, you should also have to give up the private freedom to discriminate.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 4 Oct 2016 @ 12:16am

      Re:

      "Because as you very well know, "they're a private company, they can do as they wish, first amendment doesn't apply to them" isn't without problems when it comes to a company at Facebook's size"

      Why? They have competition, they are not run or controlled by the government and they have a responsibility to the majority of their customers (most importantly, advertisers, not just normal users).

      If a hateful piece of crap is losing them money or making them look bad, they have more responsibility to protect those being attacked and/or offended than they do to keep the troll's abuse. If you don't like that, go elsewhere that accepts such behaviour.

      There is no problem with a private business saying "we don't like your behaviour and would like you to leave", whether it's a drunk looking for bar fights, a man trying to proselytise in a restaurant or an annoying dick on Facebook.

      "Phone companies are private too, they still shouldn't be allowed to deny service to nazis."

      If they use their phones to harass Jews, sure they should. Especially since there are other people they can go to for phone service if they want it.

      reply to this | link to this | view in chronology ]

  • icon
    The Wanderer (profile), 5 Oct 2016 @ 7:41am

    Why? They have competition, they are not run or controlled by the government and they have a responsibility to the majority of their customers (most importantly, advertisers, not just normal users).
    Because they don't have meaningful competition in their own space (or at least not enough of it), because of the network effects which kick in when a platform gets to anywhere near Facebook's current share of its market.

    Part of the reason why the government may not censor speech in the public square is that saying "you can speak, but only where the public can't hear you" is not terribly meaningfully different from saying "you can't speak at all".

    Saying "you can say this, but you can't say it on Facebook" is saying "you can say this, but you can't say it where (large parts of) the public can hear you". Just because it's Facebook, a private company, engaging in the censorship does not make it less censorship, nor less of a problem; it just means that it's not a type of censorship which is prohibited by the First Amendment.

    When there is an established platform for speech - such that to move speech away from that platform is to remove that speech from view so that it will not be heard - which is controlled by a private company, it is just as bad for that company to be permitted to censor that speech as it is for the government to be permitted to censor speech in the public square.

    The only solution I can see would be to require that such public-square speech platforms be implemented not as "platforms" in the usual sense, but as protocols, more analogous to the old news:// protocol underlying Usenet than to existing central-provider social-media platforms we see today. (See also things like RSS and BitTorrent; the concept of peering, where each peer decides which other peers' content they should redistribute, is also relevant.) That way, anyone who wants to get in on the business can provide all the same content (meaning: existing posts which people have shared publicly, et cetera), without having to struggle against network effects to gain enough users - and, thus, existing content - for it to seem like a reasonable place to speak.

    The only way I can see to "get there from here", however, would be for the major established platforms - such as Facebook - to reimplement themselves on top of such a protocol, such that other entities using the same protocol could have (theoretically-)equal access to the existing content and therefore the user base would have less reason not to switch providers. Given that this would open them up to more direct and active competition, however, the established platforms have no incentive to undertake any such effort.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 5 Oct 2016 @ 8:00am

      Re:

      "Because they don't have meaningful competition"

      Define "meaningful". There's plenty of other social platforms, and it seems we get stories every few weeks about how they're failing to capture some demographics that their competitors are successful with. Not so long ago you'd probably have been saying the same thing about MySpace. Things change, rapidly, and there's plenty of competition. In fact, most people use one or more competitor *as well as* Facebook already.

      "Saying "you can say this, but you can't say it on Facebook" is saying "you can say this, but you can't say it where (large parts of) the public can hear you"."

      ...and if I was told to stop shouting at passing crowds through a megaphone in a large mall and got told to go elsewhere, that would also be acceptable. Especially if customers of the mall were shopping less because some loudmouth asshole is offending half their customers.

      You have a right to speak your message, you don't have the right to force a private organisation to provide a platform for it, nor to force people to listen to it.

      "nor less of a problem"

      It's definitely less of a problem.

      "it is just as bad for that company to be permitted to censor that speech as it is for the government"

      For what reason? You're really not convincing me here. If they were a monopoly and these was nowhere else to go, sure, just as the problem with government censorship is that you can't easily escape it. Having to use Twitter or Tumblr or a blog instead of Facebook comments is not the same thing by any stretch of the imagination.

      The comparison of a moderated social network to a computer networking protocol is so ridiculous I can't decide where to begin.

      "other entities using the same protocol could have (theoretically-)equal access to the existing content"

      So, give away all the data that they use to run their business model to all of their competitors? Yeah, good luck with that.

      reply to this | link to this | view in chronology ]

  • identicon
    bronzedragon18, 17 Oct 2016 @ 3:45pm

    section 230

    II think Geller has a point. Yes she wants to sue Facebook but she can't because the Federal government has Facebook immune to such suits. So section 230 needs to be knocked out. Frankly I agree , no one should be immune from having to face the consequences of their actions.
    As for competition, what competition? WhatsApp? BBM ? None of Facebook's rivals are anywhere near its size nor do they have Facebook's global reach . That makes FB a de facto monopoly.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Oct 2016 @ 10:06am

      Re: section 230

      If there was discrimination 230 doesn't protect anyone. In her case she was posting things that violate the terms of service so facebook dumped the comment(s). Yes facebook is big but they can still remove stuff they don't like and are fine doing it.

      Xkcd has a great comic for her: https://xkcd.com/1357/
      She can just post somewhere else. She has her own website.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 20 Oct 2016 @ 1:26am

      Re: section 230

      "Yes she wants to sue Facebook but she can't because the Federal government has Facebook immune to such suits. So section 230 needs to be knocked out"

      Why? It exists for a very good reason - primarily so that trolling idiots like Geller can't hold an innocent 3rd party liable for the actions of others. Why should that protection be removed?

      "Frankly I agree , no one should be immune from having to face the consequences of their actions."

      Nobody's being made immune from the consequences of their own actions (including Geller, by the way - Facebook blocking her is a direct result of her own actions).

      However, Facebook's actions consisted solely of blocking someone who is offending their community. They are allowed to do this. Section 230 is irrelevant in this case, but even if it was, it is only something that makes them immune from the consequences of *somebody else's* actions, not their own. It stops them from being held liable for the actions of their users.

      "As for competition, what competition?"

      Twitter, Instagram, Pinterest, Google+, LinkedIn, VK, Bebo, Tuenti, Weibo, Badoo etc. etc.

      There's a huge number of social networks out there, and huge numbers of other sites that fill niches covered on Facebook individually.

      "None of Facebook's rivals are anywhere near its size nor do they have Facebook's global reach"

      So? All the more reason not to violate their terms of use if you wish to use them as a platform.

      reply to this | link to this | view in chronology ]


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