Well known anti-Muslim troll Pamela Geller
has teamed up with a group called the American Freedom Law Center to file one of the dumbest lawsuits we've ever seen. There's so much wrong here it's difficult to know where to start. Here's the lawsuit itself
, which is filed against US Attorney General Loretta Lynch, even though Geller's own story about the lawsuit falsely claims she's suing Facebook
. She's not. She's suing the US government because Facebook relies on Section 230 of the CDA in taking down some of her pages, and she claims, ridiculously, that Section 230 of the Communications Decency Act violates the First Amendment. The lawsuit is wrong on so many levels it's not even funny. Let's start with this, though -- Geller has long positioned herself as an extreme supporter of the First Amendment. And yet, she's now suing the government over CDA 230, a law which has probably done more than any other to guarantee that the First Amendment works on the internet.
The lawsuit talks up the vast open and public forums of the internet, which is accurate, but then argues that because there's so much content online, Section 230 no longer applies.
Unlike the conditions that prevailed when Congress first authorized regulation of
the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity.
It provides relatively unlimited, low-cost capacity for communication of all kinds.
And then it gets to the crux of her argument: that popular internet forums are so important, no one should ever be barred from using them:
Denying a person or organization access to these important social media forums
based on the content and viewpoint of the person’s or organization’s speech on matters of public
concern is an effective way of silencing or censoring speech and depriving the person or
organization of political influence and business opportunities.
Due to the importance of social media to political, social, and commercial
exchanges, the censorship at issue in this Complaint is an unmatched form of censorship.
Consequently, there is no basis for qualifying the level of First Amendment
scrutiny that should be applied in this case.
Except, this is really, really confused. Section 230 does not enable censorship. A private
company is free to deny service or moderate its own services as much as it wants. That's their right as a private company. This is not a Section 230 issue at all. Geller and her lawyers are hellishly confused. Yes, Section 230's (c)(2) includes a so-called good-samaritan clause that basically says that a site does not take on new liability for taking down content, but that's separate from the issue of deciding to moderate content at all. Facebook can take down your page whenever it wants and it's not a First Amendment issue
because Facebook isn't the government. And Section 230 has nothing to do with this at all, other than actually encouraging Facebook to leave up more speech since it's not considered liable for its users' speech.
But Geller's lawyers don't seem to understand the law they're whining about.
Section 230 permits content- and viewpoint-based censorship of speech. 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.”
Except that's not what Section 230 does at all. Companies are already permitted to do that because they're private companies. All Section 230 says is that in removing content, that doesn't mean those companies suddenly have liability for other content
that they left up. Geller and her lawyers simply don't understand what Section 230 does and says. And yet they're suing over it.
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.
Except it does no such thing. Actually, Section 230 frequently protects against
the heckler's veto because it makes it clear that platforms don't have to do anything
and they're still protected from liability. This is actually a stronger protection against a heckler's veto than basically every other country in the world, most of which have a DMCA-like "notice and takedown" system, which does lead to protected speech being deleted. Section 230 protects against that, and a very confused Geller and her lawyers get this backwards.
Section 230 is not tied to a specific category of speech that is generally
proscribable (i.e., obscenity), nor does it provide any type of objective standard whatsoever. The
statute does permit the restriction of obscenity, but it also permits censorship of speech that is
“otherwise objectionable, whether or not such material is constitutionally protected.” 47 U.S.C.
§ 230(c)(2)(A). Further, the subjective “good faith” of the censor does not remedy the vagueness
issue, it worsens it.
This is just further confusion. The lawsuit is arguing over an issue as if this is about the government
censoring speech, rather than private companies moderating speech -- something they've always been able to do, and which itself is protected by the First Amendment.
This lawsuit is the legal equivalent of that idiot who claims that any company moderating content is violating the First Amendment. And to that, I've got an obligatory xkcd
From there, she goes on to complain about Facebook, Twitter and YouTube all taking down some of her content for terms of service violations, and insisting that Section 230 is to blame (it's not) and that her free speech rights have been denied (they have not).
Section 230 of the CDA, facially and as applied, is a content- and viewpoint based
restriction on speech in violation of the First Amendment.
Section 230 of the CDA, facially and as applied, is vague and overbroad and lacks
any objective criteria for suppressing speech in violation of the First Amendment.
Section 230 of the CDA, facially and as applied, permits Facebook, Twitter, and
YouTube to engage in government-sanctioned discrimination and censorship of free speech in
violation of the First Amendment.
None of that is a remotely accurate description of Section 230. Not even close. Geller's blog post, which falsely claims she's suing Facebook, rather than the US government, then just is a long extended whine about the fact that Facebook takes down her content when she violates its terms. Now, we've been vocal critics of Facebook's willingness to silence content and it's almost arbitrary decision-making in determining what content is appropriate for Facebook and what is not, but we'd never suggest that Facebook doesn't have a legal right to make those decisions. To make a bizarre First Amendment argument here, trying to link Facebook to the government via the free speech protections
of Section 230, is nonsensical. It's almost as if her lawyers didn't even realize the argument they're really trying to make (which would also be a non-starter), that Facebook, Twitter and YouTube are de facto public spaces, and thus went with the even more bat-shit crazy misinterpretation of Section 230.
As for her lawyers at the American Freedom Law Center (AFLC) they're just as confused
in a blog post about the lawsuit:
Section 230 provides immunity from lawsuits to Facebook, Twitter, and YouTube, thereby permitting these social media giants to engage in government-sanctioned censorship and discriminatory business practices free from legal challenge.
It's not government sanctioned censorship. And the immunity it provides is just that these platforms don't lose their own protections against liability on the content they leave up just because they choose to take down some other content. Section 230 infers no special benefits to platforms to take down content. It just says that taking down content won't lose them other protections -- protections, I should remind you -- that help promote and protect free expression online.
While there have been some questionable CDA 230 rulings lately, this one is an easy one. It should be laughed out of court pretty quickly on the basis of "did you even read the law you're suing over?"