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Rep. Gohmert Section 230 Legal Challenge

Info Doc

Justice Clarence Thomas noted in Malwarebytes, Inc. v. Enigma Software Group USA, LLC, 141 S.Ct. 13 (2020) that:

“Courts have extended the immunity in §230 far beyond anything that plausibly could have been intended by Congress… Courts have also departed from the most natural reading of the text by giving Internet companies immunity for their own content [i.e., development in part by proxy]… . Courts have long emphasized nontextual arguments when interpreting §230 [i.e., proof-texting], leaving questionable precedent in their wake.”


In 1996, Congress sought to protect an interactive computer service ("ICS") provider from liability arising out of the ICS’s engaging (as a "Good Samaritan") in voluntary restriction of offensive materials online in an effort to help protect our children from harmful web content and/or otherwise rid the Internet of filth; hence, the enactment of the Communications Decency Act ("CDA"), Title 47, United States Code, Section 230.

In their infinite wisdom, Congress sought to address the problem of offensive materials online by delegating regulatory "agency" authority (Section 230’s civil liability protection) directly to private entities. This was approximately twenty-five years ago, before many ICSs like Facebook, Twitter, Instagram, et cetera even existed. Today, we find the result is an atmosphere of stagnation and abuse in both the enforcement of Section 230 and within the legislative body to correct the loophole that has shielded social media companies from liability.

Problems with Section 230

1. Regulatory Framework: 

Title 47, United States Code, Section 230 is an administrative law that provides civil liability protection when a private entity (ICS) takes any action voluntarily in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

Unfortunately, the broad, subjective nature of the material as "defined" by Section 230 has provided a convenient, able mechanism for the removal and suppression of free speech. The unconstitutional, subjective way the law is effectively applied to certain groups while overlooking others has created a point of contention that requires significant revisions to Section 230 or striking the law altogether. It’s that irredeemably flawed.

2. Vague Text and Strict Interpretation:

Due to the strict interpretation of Section 230 by the courts and skillful arguments by the tech firms’ legal teams, Section 230(c)(1) effectively grants immunity not only from “publisher” or “speaker” liability, but it also eliminates distributor liability too; that is, Section 230 confers immunity even when a company distributes content that it knows is illegal.

Big Tech companies claim to act in good faith when they remove content that is clearly not objectionable, and subsequently claim they have a legal obligation to act. Despite the fact that it is clear that they are not removing content for purposes of protection or obedience to the law, but to further their own agenda and remove their competition (as they did to Fyk).

3. Section 230 Conflicts with Due Process:

The Fifth Amendment tells the federal government that no one shall be "deprived of life, liberty, or property without due process of law," the Internet being no exception.

In the case of Fyk vs. Facebook, due process was denied by the California courts and the SCOTUS, when the government authorized and purportedly fully immunized Facebook, acted under the aegis of the government (Section 230), and deprived Fyk of his liberty and property without so much as a single hearing on the matter.

In other words, a state should enjoy immunity from suits arising out of the exercise of its governmental functions (i.e., to block and screen offensive material), but this should not protect them from suits arising out of the types of activities in which private parties engage (i.e., "voluntary" acts). In essence and actuality, Section 230 allows both private and governmental functions simultaneously. This creates an iron clad defense for any tech company to trample the Constitution while claiming absolute immunity.

The initial hopeful and well-meaning intentions of the 1996 law have been contorted and distorted to deny due process and immunize an entire industry against liability for libel, slander, gross negligence, and proxy editorial work. 

The initial well-meaning intentions of the 1996 law have been contorted and distorted to deny due process, and immunize an entire industry against liability for libel, slander, gross negligence, and grotesque forms of political censorship that a government formed under our Constitution should never get away with. Thus, a private company bestowed with immunity the government possesses should not ultimately have more right to censor than that government providing the immunity has. 

This is why I am supportive of this action led by Jason Fyk, now the founder of the Social Media Freedom Foundation, because it is targeted precisely at the most significant flaws in the alleged protections of Section 230. 

Take Away:

Congress must act to correct the loopholes within Section 230 or otherwise repeal this de facto liability shield that has trampled the Constitutional protection of free speech and impeded due process under the guise of protecting public interest.

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