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US government struggles to protect Section 230 against first-ever lawsuit

By taking on censorship role, tech companies took gift from Congress beneficiaries and abused it until it no longer legally applies to them

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Eliyahu Tulshinski

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Eliyahu Tulshinski

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Focusing on the influence of socialism on public health policy.

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September 29, 2022

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10:06 PM

US government struggles to protect Section 230 against first-ever lawsuit

The U.S. Attorney General’s Office is desperately trying to defend Section 230 of the Communications Decency Act (CDA) against a lawsuit threatening to render it unconstitutional. 

Under Section 230, social media platforms enjoy immunity regarding content published on their platforms because it does not deem the tech giants to be the publishers (i.e., the publishers who provide the content) in their own right since they are passively publishing third party information: 

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider (47 U.S.C. § 230). 

However, calls to repeal Section 230 began during President Trump’s tenure once it became clear that the tech giants were overtly censoring users on their platforms by suspending accounts, removing posts, and actively promoting their own messaging. 

Social media executives have boasted about censoring certain voices – particularly those that are Right-wing – because “people don’t know how to make a rational decision.” 

Many legal scholars have maintained that this active censorship, allowing some political beliefs to be expressed on their platforms but not others, meant that the private tech companies were no longer acting as a mere "provider ... of an interactive computer service." Rather they were acting just as publishing companies do, choosing to publish certain content but not others. 

In other words, they enjoy an incredible protection - a law was passed, by many congressmen who are funded by Big Tech, protecting Big Tech from, say a lawsuit for wrongful death if a terrorist were to post instructions for building a bomb on a certain social media platform, together with the location of the target of the terrorist, and then another person uses that information to build and detonate a bomb at the listed target, killing someone. The tech company would be allowed to say, we have no control over what gets posted on our site, millions of people are posting things all the time - we don't approve or disapprove; we don't endorse or censor - we're no more connected than if someone posted bomb building instructions on the wall of our building - we didn't put it there and we don't check the wall.

But what if they did check the wall (or their platform)? And what if they took down, for example, posts saying that the terrorist with the bomb plans should have his group labeled a "terror organization"? What if anytime someone posted that Congress should defund the mother organization funding that terrorist, the post was instantly censored using censoring algorithms and the poster had their social media profile suspended? Then the tech company could no longer shrug their shoulders as if they were disconnected from it all - in such a case they would be clearly promoting the bombers.

In essence, by taking on a censoring role, the tech companies took the gift from their beneficiaries in Congress and abused it to the point that the gift is no longer legally applicable to them. But calls on Congress to acknowledge this simple fact, and invalidate the protection offered by the existing law, were ignored. But a new act of Congress may actually not be necessary. Instead, the courts, in their role of exercising judicial review of legislative actions, can simply invalidate the original law as unconstitutional on its face.

Toward that end a new lawsuit – the first of its kind – is approaching the issue from a different angle: Who's behind the censoring?

Recent communications between the tech oligarchies and high-ranking officials in the U.S. government reveal that corporations like Twitter and Facebook often censor at the behest of the federal government, despite the Biden administration calling to repeal Section 230.

Last month, a lawsuit brought by journalist Alex Berenson against Twitter revealed that the White House had in fact pressured Twitter to suspend Berenson from its platform for a tweet he wrote about the COVID-19 vaccine – a tweet that was factually true. 

Earlier this month, America’s Frontline News reported that Facebook’s parent company, Meta, disclosed that at least 32 officials, including senior officials at the FDA, the U.S. Election Assistance Commission, and the White House were in communication with the social media giant about “content moderation”. Google-owned YouTube made similar disclosures. 

Social Media Freedom Foundation Founder Jason Fyk, who filed the complaint regarding Section 230 in April, says private corporations cannot be protected from the consequences of what they publish or refuse to publish when they are acting on behalf of the federal government.

“But what if I told you that these private companies have been engaged in state action all along, without their even knowing it, and there is proof in the statute itself?” wrote Fyk in an article this month for The Gateway Pundit. “What if I told you, that we’re already challenging Section 230’s constitutionality in court, and most of the world is completely unaware?” 

For its part, the government appears to be struggling to fend off the suit. The US Attorney General’s Office has filed a Motion to Dismiss on the grounds that the 143-page complaint is too long and wordy, citing Rule 8(a)(2) of the Federal Rules of Civil Procedure. 

“Rather than addressing our 1st and 5th amendment Constitutional Challenge of 230, the Attorney General's office (led by the Biden Administration) seeks to, once again, deny me due process by dismissing my case,” Fyk told America's Frontline News. “It makes you wonder; they claim they want it gone (i.e., Section 230), yet they are fighting to keep it, claiming I have no jurisdiction, standing and its being too long?”

Claiming that the complaint is "too long" does not appear to be a strong defense, especially when the case carries such large implications for the nation, whichever way it is decided, and when the law is relatively complicated and the examples that need to be cited in support of a request to hold the law unconstitutional are extensive.

“Think about this for a moment; literally hundreds of questionable cases, strewn across twenty-six years of bad precedent and the AG thinks 143 (double spaced) pages is too long,” Fyk told America's Frontline News. “Section 230 is far from settled law. Section 230 is a legal moving target, with conflicting decisions and irreconcilable case law. All I’ve done is give the court a concise, comprehensive analysis of a giant Gordian Knot!  ”

Fyk explains that to put the length of his complaint in perspective, a 5th District court recently rendered a decision on a 113-page single-spaced complaint. Fyk's lawsuit, on the other hand, contains thirteen challenges to Section 230 - an average of roughly 10 pages per point. 

“Our challenge is not too long, it’s just a lot of law to unpack and this case could literally determine whether free speech and the free market still exists online.”

As for the government's claim that the complaint has no standing and no jurisdiction, Fyk says the matter is simple.

“It does not take a rocket scientist to understand. . . . The United States enacted and enforced an unconstitutional law that denied me due process (which harmed me). I sued the United States. Here, jurisdiction and standing aren’t really that complicated,” he said.

“It seems as though no one can discern who is who anymore. I sued Facebook for what Facebook did to me, and now I’m suing the government for what the government did to me. It’s that simple. They wrote and enforced a law in Washington DC that denies me (and everyone else, for that matter) of my Constitutional rights. That’s the reason I am suing them and why I’m suing them in DC, not California.” 

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