Guest post by J. Burns
THE PATHWAY TO SOLVING THE SOCIAL MEDIA CENSORSHIP PLAGUE
Remove Protections from Suit for Speech Tyrants
In Tweets over the weekend, President Trump promised he would end ideological censorship on Social Media. As an attorney involved in these questions for years, I have some suggestions on how to do this. Mr. President please instruct Congress to:
- Eliminate 47 U.S.C. § 230(c)(2);
- Pass new legislation guaranteeing speech freedoms to all users of Social Media, regardless of their political persuasion;
- Pass new legislation requiring all publicly traded companies with a market capitalization of $10 Billion or more to provide First Amendment speech protections to all employees and product consumers; and
- Pass new legislation requiring any foreign owned media and/or social media company doing business as such in the US to provide First Amendment speech protections in their US market, as well as their top 5 global markets.
President Trump has a golden opportunity to save and secure free speech on the Internet for the next 50 years.
It Started Long Before the Jihad Against Alex Jones.
As a lawyer, I represented one of the first individuals to be permanently banned by Twitter. In May of 2015, journalist Charles Johnson was banned from Twitter for supposedly threatening bodily harm to Jack Dorsey’s friend, Deray McKesson. McKesson was internet famous in 2015 for leveraging the Ferguson Riots to his own benefit. In reality, Johnson had attempted to doxx Deray. Twitter’s rationale was an absurd pretext that no one actually believed. But Twitter alleged Johnson made their service less safe, and that was that. Twitter/Facebook censors in the name of safety, no matter how ridiculous or attenuated the claim. Charles lost 30,000+ Twitter followers overnight, and with it, his journalism platform and business. Twitter/Facebook have just about perfected their methods for silencing those they dislike , ratcheting-up the effort with bigger and bigger targets. Alex Jones is just biggest and latest personality to be culturally cleansed.
The Government Gives Social Media A License to Censor
The common response to conservatives and others who complain about Twitter/Facebookl s censorship is that the Socials are private businesses which can censor anyone they want. Under this theory, they are private companies that can refuse service to whomever they want.
This is somewhat true, but not because the Socials are private , but because these companies have uniquely been deputized by the federal government to censor speech. In return, the Socials are granted full immunity from lawsuits by Charles Johnson, Alex Jones, and anyone else upset at the arbitrary destruction of their speaking platforms.
The Communications Decency Act (“CDA”) Section 230 (47 U.S.C. § 230), keeps Charles Johnson, Alex Jones, and countless others who could successfully sue Twitter, Facebook and other Socials out of court.
CDA 230 immunizes internet service providers such as Twitter from any legal liability in two contexts. First, Twitter cannot be held liable for the defamatory speech of third party commenters (see 47 U.S.C. § 230(c)(1)). This is a good thing. Without it, comment boards and social media could not exist, because the website publishers would be sued for every awful thing said on their comment boards.
Second, Twitter cannot be held liable for “Good Samaritan” blocking and screening of offensive material, and may censor speech even if the speech would be constitutionally protected. As long as they try to remove the worst material, they can’t be sued if some slips through.
(2) Civil Liability – No provider or user of an interactive computer service shall be held liable on account of –
- any action voluntarily taken 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; or
- any action taken to enable or make available to information content
providers or others the technical means to restrict access to material described in paragraph (1).
The Courts have taken a very absolutist position on CDA 230, in that they consider it an absolute bar on Plaintiffs coming into Court. There are virtually no cases or precedents regarding CDA 230(c)(2), simply because many censorship victims are being told by Courts that they don’t have any right to sue. In so doing, the Courts are granting these billionaire internet corporations greater rights than newspapers, tv stations, and radio networks.
Section 230(c)(2) Is The Evil Twin Of Section (c)(1).
Federal Courts across half a dozen circuits including the 2nd, 6th, 7th, and 9th, , have all held that the immunity in CDA 230 is virtually absolute, and invincible. Only the 7th and 9th Circuits have recognized any limitation on the extent of the immunity. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008); Chicago Lawyers’ Committee for Civil Rights I WOULD EXPLAIN THE BASIC FACT PATTERN FOR BOTH CASES.
Under Law v. Craigslist, 519 F.3d 666 (7th Cir. 2008). However, no court before or since has limited CDA 230, and many plaintiffs have unsuccessfully attempted to use both of these cases. In short, Federal Courts have been unwilling to deprive internet service providers of the blanket immunity from lawsuits conferred by Congress via CDA 230. These are rights greater than any newspaper, magazine, radio, or television program enjoys.
This means that the US Government has given Twitter, Facebook, and every other social media site a license to censor.
The CDA was originally passed in 1996 and at that time it contained criminal provisions that punished the knowing transmission of “offensive” content, including “obscene or indecent” content. The criminal provisions were struck down as unconstitutional and unenforceable violations of the First Amendment in 1997 in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) – back when the ACLU actually gave a damn about protecting speech.
CDA 230(c)(2) is similarly unconstitutional because in it, the Federal Government merely deputizes private actors to engage in the kinds of censorship the government itself was prohibited from conducting in Reno. Congress has immunized censorship,
permitting titans such as Twitter and Facebook to use CDA 230(c)(2) d censoring political and other speech with which it disagrees, while hiding behind its blanket immunity. This outsourcing of censorship is unconstitutional and CDA 230(c)(2) can and should be eliminated.
As part of this program of censorship, Alex Jones, Charles Johnson and others have been deprived of their First Amendment rights. Further, while Jones and Johnson were also the victims of torts, they were denied Due Process and therefore have suffered and continue to suffer further Fifth and Fourteenth Amendment deprivations as their property interests in their lawsuits are foreclosed. See Logan v. Zimmerman Brush Co., 455 U.S. 422 (1981) (). REWORD FROM LEGALESE
Twitter and Facebook are not simply private businesses immune to the First Amendment, because CDA Section 230(c)(2) transforms them into public actors, deputized by Congress to censor speech.
Twitter is almost certainly a public actor in line with a number of key “state actor” / “joint participation” SCOTUS cases. See, e.g., Shelley v. Kraemer, 334 U.S. 1 (1948); Burton v. Wilmington Park Authority, 365 U.S. 715 (1961) (financial relationship between a state agency and private restaurant transforms the restaurant into government actor). Adickes v. S.H. Kress Co., 398 U.S. 144 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); Fuentes v. Shevin, 407 U.S. 67 (1972); Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982); Wyatt v. Cole, 504 U.S. 158 (1992) (judge’s ministerial issuance of an attachment order renders a seizure subject to Due Process); Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001) (public institution’s and officials’ “pervasive entwinement” converted a private athletic regulatory body into a state actor); Marsh v. Alabama, 326 U.S. 501 (1946) (company town is the equivalent of a municipality and is engaged in a public function); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (jury selection is a “traditional function of
government” and that private attorneys are thus prohibited from using race-based peremptory challenges).
Marsh v. Alabama, 326 U.S. 501 (1946) is an excellent comparison point. In that case, a Jehovah’s Witness was handing out religious materials on the streets of a town entirely owned by a shipping company. The shipping company told her she needed a permit to hand out the magazine, and had her removed by a deputy sheriff for trespassing. The US Supreme Court held in favor of the Jehovah’s Witness, reasoning that the more a property owner opens his property up to the public in general, the more his rights are circumscribed by the statutory and constitutional rights of those who are invited in.
The Social Media situation is similar to Marsh v. Alabama. Just as the shipping company controlled the streets and sidewalks of the company town, Social Media giants hold monopolies on the electronic public speech common areas. Over 90% of online Americans are on Facebook. Almost 30% are on Twitter. Because they are monopolies, where is the public supposed to go? The Court can’t say you have free speech only in the town park where no one goes. The common area where people are discussing politics is online, often on these platforms.
The usual remark here is that conservatives and other disfavored internet minorities should simply “make their own competitor” to Facebook/Twitter and the rest. This is absurd. So what, if Apple and Samsung and the others don’t want Alex Jones speaking on a smart phone, is Jones supposed to invent a “Jones” Phone? Should he have to invent his own internet? Is free speech only available to those with a billion dollars at their disposal? Sure seems like Kommissar Zuckerberg thinks so.
President Trump’s Opportunity to Secure Free Speech On the Internet
President Trump has a once in a lifetime opportunity to secure free speech on the internet. Twitter and Facebook have engineered a program of cultural genocide. Their goal is social engineering, and to push their left-wing agenda by covertly silencing their political opponents and amplifying their ideological friends. Their goal is to eliminate entire ways of thinking. By shifting the range of ideas which can be discussed , a man is made a prisoner in his own mind. Thoughts which cannot be expressed are not easily remembered. That which cannot be remembered is forgotten and erased: cultural genocide.
We’re witnessing a watershed moment in the history of American speech. The Social Media threat to speech is an existential threat to freedom in this country because the technology involved is so subtle, so powerful, and without the ability to combat its effects. We’re on the verge of a cultural revolution. What we’ve been seeing in the past couple years is the emergence of a new generation within media companies. The companies’ censorship policies and departments are created and staffed by very recent college grads . As we know, the colleges continue to get bolder and more militant – in this culture war, and they are now scary autocratic and utterly unconcerned about the rights of nonconformists. Twitter used to be staffed with attorneys who were legendary defenders of First Amendment Speech –people who were legitimate free speech champions. But those free speech liberals were purged in 2014.
What remains are people who are not civil libertarians and don’t pretend to be, they aren’t people who would defend nazis marching in Skokie, Illinois. They are not the people who would defend rap music against people like Tipper Gore. They have come to a conclusion, and the process by which they arrive to it is incidental. And now they have the power and legal immunity to do so in total, with the thoroughness of a machine, to completely crush any kind of dissenting views.
President Trump: without decisive action NOW, advocates of authoritarian style thought policing (read: the adolescent management of Twitter, Facebook, and Google) will decisively seize this moment in history to control all thought and expression on the internet. Their Congressional enablers like Senator Mark Warner will applaud and cheer them FORWARD. See https://reason.com/blog/2018/07/31/democrats-tech-policy-plans-leaked
There is no reason to continue coddling major internet billionaires as a baby industry.
They deserve to be subject to the exact same rules as other media entities by repealing CDA 230(c)(2), giving those against whom they have discriminated the chance to fight for free speech in the courts.