Pam Geller has decided there's nothing like grabbing more shovels when you're already in a hole. [And that means it's time for notable "leftist publication" Techdirt to crank out another "little hit piece" filled with "hyperbole and nonsense," apparently...]
Geller doesn't like the way she's been treated by Facebook, YouTube, and Twitter and has decided the problem is Section 230 of the CDA. So, she's suing the DOJ for "enforcing" the immunity the government has granted to websites to shield them from being held responsible for user-generated content.
The DOJ responded to her lawsuit by pointing out that the DOJ doesn't ENFORCE anything. It's a defense service providers can raise when entities come after them for content posted by their users. In Geller's mind, Section 230 gives service providers the "right" to arbitrarily remove content. She's wrong, of course. It does no such thing. Instead, Section 230 prevents service providers from being held civilly liable for making "good faith" efforts to remove objectionable content. The rest of what Geller's complaining about can be traced back to each provider's terms of service and their individual translations of what that means in terms of Geller's often-inflammatory content.
Geller continues to insist this is about suing Facebook, even though Facebook isn't a named party. And her response to the DOJ's motion to dismiss strongly suggests she feels she can't directly sue any service provider for taking down her content because of Section 230. This is also incorrect. She may have almost no chance of winning the suit, but nothing in Section 230 prevents service providers from being sued for allegedly discriminatory behavior. From Geller's opposition motion [PDF] (h/t Adam Steinbaugh):
By way of § 230, the Government is empowering this type of discrimination and censorship. 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.”
This is where Geller misreads "permits" as "orders." Section 230 does not place any content-based restrictions on speech. Instead, it immunizes service providers from civil liability for good faith content removal. Geller calls this immunization "government-sanctioned discrimination and censorship of speech" -- somehow finding a defense mechanism to be an avenue of attack. (She repeats her laughable assertion that Section 230 is a "heckler's veto" multiple times in the filing.)
From there, Geller theorizes that Section 230 would prevent Facebook, et al from being sued for violating California's anti-discrimination statutes. This theory is incorrect as well.
The pertinent part of Section 230 reads:
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
This law immunizes Facebook from being held liable for, say, Pam Geller's controversial content -- even if a state law says otherwise. What it doesn't do is immunize Facebook from liability for violating California discrimination laws, which is where Geller has a somewhat more cognizable claim. Unfortunately for her, she's chosen to name the wrong defendants and file in the wrong jurisdiction. Continuing to misconstrue a defense as an attack, Geller insists that she has standing to sue the federal government for content removal performed by a private company.
The very reason why Facebook, Twitter, and YouTube are able to engage in their discriminatory practices with impunity is § 230. See Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014) (concluding that § 230 foreclosed tort liability predicated on Facebook’s decision to allow or to remove content). In other words, the Government has sanctioned these discriminatory practices by placing them above the law. Consequently, the traceability element is satisfied.
If there's anything "traceable" here, it's the California location of the entities she mentions in her lawsuit (YouTube, Facebook, Twitter) but has not named as defendants. California law is the angle she should be using to attack these companies for their allegedly "discriminatory" removal of her postings, but she has filed in federal court and named the DOJ as the defendant.
Geller notes that California law prohibits the sort of discriminatory behavior she's alleging:
Section 51 of the California Civil Code provides, in relevant part, All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
If her allegations are true and these service providers are discriminating against her, Section 230 would not immunize them against these claims. But even if she were to raise claims solely under this law, she would likely not succeed.
The law only requires company provide "access." It does not demand they allow anyone to do whatever they want once they're granted access. Under this law, Facebook can't deny Geller an account simply because it doesn't like her religious views, but it is under no obligation to allow her to post whatever she wants. The DOJ, in its motion to dismiss, addressed this point as well (even though it was under no obligation to make California's arguments for it).
Nor is it clear how California law can require a private social media company to publish Plaintiffs’ speech, see Compl. ¶¶ 46-61, or how such a state-law requirement would be consistent with the First Amendment, which arguably protects a social media company’s editorial control or judgment from government regulation that would require publication of a certain message.
If Geller were able to prove she was denied access based on her religious beliefs (and a temporary ban doesn't cut it, legally-speaking), Section 230 would not stand in the way of the civil suit Geller doesn't appear to actually want to file. All Section 230 immunizes against is holding Facebook civilly liable for content users like Pam Geller have posted. And Geller's main complaint is that Facebook keeps taking her posts down, not allowing them to stay up.
At best, Geller's extremely misguided lawsuit may eventually boil down to litigation directly implicating California's anti-discrimination law and how that is actually applied to service providers located in California, but with users all over the world. It may also result in a somewhat indirect challenge of that law's Constitutionality. But what it won't do is make the federal government responsible for Facebook's actions. And Geller, whose popularity and following largely relies on inflammatory speech, is only shooting herself in the foot by attacking Section 230. If this immunization were not provided to social media platforms, it's highly unlikely she'd have anything more than a self-hosted personal blog for a soapbox.
The final irony is that Geller is no doubt opposed to anti-discrimination laws like California's that force private businesses to cater to customers they'd rather not -- perhaps even in opposition to their own religious beliefs. (See also: same sex marriage/wedding cakes.) But she wants the government to step in and act as arbiters of private companies' terms of service and prevent the sort of discrimination she claims is taking place.