Legal Issues

by Tim Cushing


Filed Under:
cda 230, doj, pam geller, section 230

Companies:
facebook, twitter



Court Dismisses Anti-Muslim Troll Pam Geller's Lawsuit Against The DOJ For Facebook's Moderating Actions

from the sue-better,-dumbass dept

Anti-Muslim troll and self-proclaimed First Amendment warrior Pam Geller's stupid lawsuit against the DOJ for social media companies' removal of her Islamophobic posts has reached an end (if only temporarily). DC District Court Judge James Boasberg's decision pretty much aligns with the DOJ's motion to dismiss: in short, Geller is wrong about Section 230, wrong about the DOJ's "enforcement" of this affirmative defense, and not even close to targeting the right entity(ies) in her lawsuit. (via Eric Goldman)

A very short recap: Geller routinely posted anti-Mulism content to social media platforms. These platforms would take her posts down and occasionally suspend her accounts. Geller felt this was censorship (it isn't) so she sued not Facebook, not Twitter, not any other social media service but the federal government. In her view Section 230 of the CDA is not a defense, but an excuse for social media platforms to remove her dubious contributions. What Geller ignores is that Section 230 is likely the only reason her posts stay live at any platform for any length of time, simply because it shields Facebook et al from being held civilly liable for content created by users.

Boasberg's opinion [PDF] only runs 11 pages but it's more than enough to dispense with Geller's ridiculous legal arguments. He gets right to the crux of the issue in the first paragraph.

Facebook, YouTube, and Twitter may be host to a mélange of cat videos, musings from long-lost cousins, and odes to Beyoncé, but not all content is welcome on these social-media platforms. Pursuant to their private terms of service, the companies have repeatedly taken down some of Plaintiffs’ posts criticizing Islam. Plaintiffs — two non-profit organizations and their leaders — allege that such action constitutes censorship and discrimination on the basis of content, viewpoint, and religion. Yet a quick glance at this case’s caption reveals a surprise: Plaintiffs have not named the companies as Defendants. Instead, they have sued only the United States Attorney General, alleging that a provision in a federal statute — § 230 of the Communications Decency Act — enables the companies’ censorship and discrimination and violates the First Amendment.

And nails this point home again and again.

These and other actions led Plaintiffs to conclude that Facebook, YouTube, and Twitter employ their company policies to suppress the speech and activities of disfavored speakers, including Plaintiffs, and to discriminate against “certain political parties, national origins, and religions,” particularly Israelis, Jews, and conservatives. Yet Plaintiffs have not brought this suit against the social-media companies. Instead, in July 2016, they named the United States Attorney General as the lone Defendant.

The court also addresses Geller's convoluted argument that the DOJ -- via Section 230 of the CDA -- is somehow responsible for content moderation efforts performed by Facebook and others.

[Section 230] does not grant the Attorney General any power to impose criminal or civil liability, nor to direct or forbid interactive computer services to take any particular action vis-à-vis third-party users, including deleting objectionable content. Indeed, § 230 affords Defendant no role — enforcement or otherwise — of any kind, nor does it delegate any enforcement role to any federal agency or federal official.

This brings it back to a question of standing: Geller and her co-plaintiffs have none. The attorney general has no power to enforce Section 230. Even if the court were to grant Geller standing and find her arguments actionable, the remedy Geller seeks would have zero effect on the actions she's suing over.

It would not constrain Facebook, Twitter, or YouTube from invoking § 230 as a defense to any state-law discrimination or censorship action brought against them by Plaintiffs, nor would it restore Plaintiffs’ removed content or legally prevent the social-media platforms from deleting or otherwise editing Plaintiffs’ content in the future.

And the court isn't interested in handing down orders based on Geller's theoretic extrapolations.

Plaintiffs’ argument rests on the entirely speculative implication that Facebook, Twitter, and YouTube would voluntarily change course and permit Plaintiffs’ censored content to stand were the Attorney General to declare § 230 unconstitutional. Indeed, even absent the affirmative defense supplied by § 230, the private social-media companies could argue that they cannot be compelled to publish a particular message.

Which brings this all back to the original -- and strongest -- point of this decision: lawsuits are generally more successful when they target the right defendants. [emphasis in the original]

If Plaintiffs remain unhappy with the companies’ content decisions, they can sue them and attempt to defeat any § 230 defense that is raised — e.g., by invoking the same constitutional arguments offered here.

Section 230 has been under attack recently and courts have, unfortunately, been humoring some novel legal theories. Fortunately, Geller's legal theories are far too novel to be entertained by this court. Sure, it's an attack on Section 230 protections, but only in the most abstract definition of the word. Geller's case never had a chance, and she seems -- at least to date -- unwilling to go directly at the social media platforms she feels have wronged her. But she's free to spend her money fighting pointless legal battles, just like an other US citizen.


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  • identicon
    Anonymous Coward, 14 Nov 2016 @ 12:27pm

    Corruption!

    "Section 230 has been under attack recently and courts have, unfortunately, been humoring some novel legal theories."

    What do you expect? You can get anyone to 'reason' a lot of unreasonable things. This is why I hate that word being used in any form of legal documentation.

    When it comes to law, not a single thing will ever be reasonable, because when it comes to humans anything is reasonable. Slavery, Murder, Rape, Theft, and all other forms of cruelty and each have been considered reasonable by entire civilizations at one point or another!

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

  • icon
    seedeevee (profile), 14 Nov 2016 @ 12:53pm

    "These platforms would take her posts down and occasionally suspend her accounts. Geller felt this was censorship (it isn't)"

    It is almost sad to read another "it's not censorship if a private company does it" excuse-o-fest for obvious censorship.

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

    • identicon
      Anonymous Coward, 14 Nov 2016 @ 12:58pm

      Re:

      It IS censorship. Just not the illegal variety!

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

    • identicon
      Anonymous Coward, 14 Nov 2016 @ 1:00pm

      Re:

      It is not censorship. and free speech rights do not guarantee that a publisher or service will carry your words, or that you can find an audience. It would only be censorship if the government shut down her blog, that is where she publishes her words at her own expense.

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

      • identicon
        Anonymous Coward, 14 Nov 2016 @ 1:23pm

        Re: Re:

        But how can she possibly setup her own blog when Facebook is the Internet?

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

      • identicon
        Anonymous Coward, 14 Nov 2016 @ 1:29pm

        Re: Re:

        Wrong.

        censor (verb): Examine (a book, film, etc.) officially and suppress unacceptable parts of it (From Oxford Dictionary)

        Where in there do you see it has to be a government to make it "censorship". If you point out "officially" then you're wrong (again). In this case, Facebook is the official.

        The material only has to be removed because it's not considered acceptable. That does not mean it's illegal censorship. Facebook, as a private entity, has a right to police its forums and remove what it considers inappropriate content, but that doesn't make it any less censorship because it's Facebook and not a government organ.

        It's intellectually dishonest to say just because someone other than a government organ is removing posts it doesn't like isn't censoring (it most definitely is) material. Again, that's not to say Facebook is illegally doing so (it's not), and it's aside from any ethics of the situation (which I won't comment on).

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

        • identicon
          Anonymous Coward, 14 Nov 2016 @ 1:49pm

          Re: Re: Re:

          The important bit is suppress, that is try to prevent all publication, which is different from not on my service, try elsewhere.

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

          • icon
            Richard (profile), 14 Nov 2016 @ 3:42pm

            Re: Re: Re: Re:

            The important bit is suppress, that is try to prevent all publication, which is different from not on my service, try elsewhere.

            Not really - at least not when you are as big as Facebook.

            Also, there is evidence that Zuckerberg is minded to co-operate with governments to suppress things they don't like - so where doe sthat leave the "Facebook isn't government" arguemnt?

            See http://www.cnbc.com/2015/09/27/angela-merkel-caught-on-hot-mic-pressing-facebook-ceo-over-anti-immig rant-posts.html

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

          • icon
            Richard (profile), 14 Nov 2016 @ 4:12pm

            Re: Re: Re: Re:

            The important bit is suppress, that is try to prevent all publication, which is different from not on my service, try elsewhere.

            What if the government goes around to all the big service providers and has a quiet word in their ear about things they don't like?

            If a private company is doing the business at the behest of government then really that is just as bad as the government doing it. We see governments putting this kind of pressure on in public in relation to porn and copyright.

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

        • icon
          orbitalinsertion (profile), 15 Nov 2016 @ 7:38am

          Re: Re: Re:

          Context:

          Geller sues the government over First Amendment claims involving section 230. This is the censorship claim. It is wrong. Therefore it is not censorship with respect to the claim, which is exactly what was being discussed.

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

          • icon
            Richard (profile), 15 Nov 2016 @ 9:47am

            Re: Re: Re: Re:

            You are correct in respect of the lawsuit- and I haven't seen anyone in the comments ay otherwise.

            However there is a problem in that the constitution framers didn't predict the existence of large and powerful media corporations whose actions could be as damaging as government censorship - nor did they forsee that government could use pressure on these corporations as an end run around the 1st amendment. (Just like they have tried to starve anyone they don't like of funds by pressurising paypal, banks and credit card providers.)

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

    • identicon
      ryuugami, 14 Nov 2016 @ 1:16pm

      Re:

      It is almost sad to read another "it's not censorship if a private company does it" excuse-o-fest for obvious censorship.

      xkcd 1357.

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

    • icon
      That One Guy (profile), 14 Nov 2016 @ 2:33pm

      Xkcd on Free Speech.

      'You're not allowed to say that at all' is not the same as 'If you want to say that get your own site/soapbox, because you're not using mine to do so.' The first is saying that the person can't speak at all, the second is simply telling them that if what they want to say violates the rules of a given site/forum then while they can still speak, they'll have to go elsewhere to do is because the site/forum isn't going to host it for them.

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

      • icon
        Richard (profile), 14 Nov 2016 @ 3:57pm

        Re:

        I'm sorry to disagree with xkcd but both are censorship.

        How serious it is depends on the amount of power possessed by the institution in question relative to the relevant audience. Even a local newspaper exercising censorship on a local issue can be a problem - if the have an effective local monopoly.

        The medieval Catholic church wasn't the government anywhere (except perhaps Vatican city) but it was still responsible for effective censorship.

        Also I would have thought that the folks here would have been aware of the role of the London Company of stationers (a private institution) as an organ of censorship in the early history of copyright.

        Plus the folks here are quite happy to complain about copyright/censorship when exercised by (eg) youtube's content ID system.

        It seems to me that the determining factor is that you don't like Pamela Geller's views - so the word games and sophistry starts to try to prove that she hasn't got a point. (Of course clearly the legal case was just stupid and doomed from the start but that doesn't mean that morally she doesn't have a point.)

        The word hypocrites springs to mind.

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

        • identicon
          Anonymous Coward, 14 Nov 2016 @ 4:33pm

          Re: Re:

          I'm sorry to disagree with xkcd but both are censorship.

          xkcd didn't claim it wasn't censorship, just that you don't have a specific right to speak on private platforms.

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

        • icon
          Oninoshiko (profile), 14 Nov 2016 @ 5:14pm

          Re: Re:

          Well, you're wrong. Good news though, you're allowed to be wrong. As long as the owners of techdirt don't mind it, you're even allowed to be wrong HERE!

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

          • icon
            Richard (profile), 15 Nov 2016 @ 6:47am

            Re: Re: Re:

            I'm not wrong - all I'm saying is that censorship by a sufficiently large and powerful private organisation is in practice indistinguishable in it effects from censorship by government. In those circumstance the first amendment is of limited value.

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

            • icon
              Oninoshiko (profile), 15 Nov 2016 @ 2:27pm

              Re: Re: Re: Re:

              And, in practice, you are wrong. Facebook is not the only way to post your opinion. You could start your own website. Don't believe me? How do you think this vary site came into being? Mike Masnick decided to setup a web server and start putting his thoughts out there. Facebook isn't stopping you from doing the same thing.

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

            • identicon
              Wendy Cockcroft, 16 Nov 2016 @ 6:10am

              Re: Re: Re: Re:

              So what do you call it when people are persecuted for who they are or what they believe and can't generate sufficient counter-speech to defend themselves effectively? Isn't that censorship, too, when you're too scared to express yourself in case you get hammered for it?

              I had someone come after me on social media, lie about me, and try to get me fired from my job because they didn't like my opinion about something. Luckily my boss is understanding but I still had to discuss the matter with him in his office and the legal team were involved. Don't you think that could have a chilling effect on my expression?

              Bearing that in mind, was it wrong of me to report that account to the platform for harassing me?

              Was it censorship on both sides, my side, or the troll's side?

              I'm of the opinion that nobody owes you a platform, otherwise you end up having to let neo-nazis march into synagogues, etc.

              If you don't like the platform, leave it.

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

  • icon
    Richard (profile), 14 Nov 2016 @ 4:05pm

    anti-mulism

    I don't think she's come down on people with obstinate quirks!

    http://phrontistery.info/disq5.html

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

    • icon
      Oninoshiko (profile), 14 Nov 2016 @ 6:22pm

      Re: anti-mulism

      I'm giving you an insightful for this because I learned a new bit of archaic english.

      You're still wrong above, but I do appreciate archaic english.

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

  • identicon
    Hans, 15 Nov 2016 @ 12:54am

    To bad to see the author describe Ms Geller
    as a troll, which is usually a word or phase
    used by liberals.

    Ms Geller, does enormous work to inform the
    public of the evils of Muslame jihad, something
    apparently Mr Crushing is unaware of.

    These liberal institutions, Fakebook, Witter and
    Itube do indeed practice wide spread discrimination
    against anyone whom is Conservative. It is why I
    do not enjoin them but it is what liberals do best -
    the suppression of the Truth.

    That being said, I do not support her lawsuit since
    she lacks any claim. BTW, she has her own excellent
    website for "folks" to use.

    The left and the MSM or MOP, were exposed for what
    they truly are - thanks to Mr Assange.

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

  • identicon
    Anonymous Coward, 15 Nov 2016 @ 4:45am

    Grammar bugbear

    And the court isn't interested in handing down orders based on Geller's theoretic extrapolations.

    The word you're looking for is "hypothetical", not "theoretic". I'm not one to fuss over grammar too often, but this mistake fuels the "it's only a theory" fire with respect to evolution, because of such conflations of "theory" and "hypothesis"...

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


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