Private or State Action? – Section 230’s Achilles’ Heel
Guest post by Jason Fyk
In April of 2022, I filed what may potentially be one of the most important lawsuits in modern history… that you’ve never even heard of. Why? Likely because we’ve discovered Section 230’s Achilles’ heel. Section 230 is state action (statutory agent authority) laundered through a private entity’s first amendment rights.
There is intense debate over whether tech companies are acting as private entities or as state actors. Recent revelations include those made by Missouri AG Eric Schmitt about the White House’s influence on Big Tech, Congress’ letter to Gab, and Mark Zuckerberg’s own public admission that the FBI personally asked Mark to suppress the Hunter Biden laptop story (which later proved true) as “Russian disinformation”. These examples all make clear that government authorities are influencing a private entity’s online moderation decisions and actions.
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? What if I told you, that we’re already challenging Section 230’s constitutionality in court, and most of the world is completely unaware? Wouldn’t that be significant to you? It’s probably significant to everyone that uses the internet.
Anyone that tells you that Section 230 is “settled law” is full of you know what. Justice Thomas noted, in Enigma vs Malwarebytes, the United States Supreme Court has never interpreted this law. So, how can it be settled law, if the highest court in the land has never interpreted it? It’s not, but we are hoping they will finally interpret Section 230 and settle the matter. In April, we filed a Constitutional Challenge of Section 230, untwisting the Gordian knot that Congress and the courts have created over the past two decades. We’ve gone through mountains of what Justice Thomas called “questionable precedent” and found Section 230’s “origin” problem, its Achilles’ heel, so to speak.
It all comes down to the separation of powers and delegated authority. Congress could not possibly regulate the Internet industry. Not even the FCC could possibly hope to regulate all content, so they decided to delegate that job to the provider or user of an interactive computer service or access provider. Oops, big mistake! In other words, Congress delegated
their legislative authority (i.e., granting civil liability protection), directly to private self-interested entities, who now have the “protection” of government to voluntarily restrict the lawful speech of third-parties (i.e., an authority the United States itself, does not possess). I know what you’re thinking, and the answer is: YES. These companies do have a first amendment right to keep or remove content on their property, but the first amendment does not entitle them to liability protection when they do so, especially when they do so unlawfully.
Liability protection comes as a statutory privilege to act on behalf of Congress to voluntarily block and screen offensive material. If Section 230 protected the Service Provider’s rights, it would be a redundant protection. Instead, Section 230 gives these private companies the voluntary choice to engage in state action, acting as a “Good Samaritan,” but if and when they voluntarily choose to act, the statute clearly defines the state directive to which their actions must conform, in good faith. It states “any action… to restrict … material … consider[ed] … obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Section 230 essentially says in the text itself, the government doesn’t care if the materials are “constitutionally protected,” go ahead Big Tech, do what you want, we got your back (i.e., liability protection). Section 230 is anything but a protection for our First Amendment rights.
What went wrong? Almost everyone misreads the statute as “any [voluntary] action voluntarily taken” which it neither says, nor does it mean. If it was written that way, it would in fact be private activity but it’s not. Context and sentence parsing is very important in law. The phrase “voluntarily taken in good faith” sits between “any action to restrict material” and refers to the decision on whether to act (“voluntarily taken”) and how they must act (“in good faith”). However, if and when they choose to act, “any action” refers to the Congressional directive (i.e., the state directive): to restrict materials that are otherwise objectionable even if they are Constitutionally protected material.
What does this all mean? It means that any action they take, that they seek “protection” for, must have been a state action, taken in good faith under the legislative directive. It’s absurd to think that Congress gave private entities the authority to take any action they want, and to do anything they want, no matter how unlawful. It’s even more absurd to think Section 230’s intended purpose was to grant a private entity the authority to tortiously interfere with, and restrict their own competition, under the protection of government. That’s an argument
I think both sides of the political aisle can agree with. That’s specifically what Facebook did to me and why I’m still suing them to this day.
Section 230 is not unlimited; it limits publishing actions to the state directive, to “voluntarily” block and screen objectionable material. So, when the FBI asked Mark Zuckerberg to “voluntarily” take action, in good faith, to “voluntarily” restrict the Hunter Biden laptop story, it is really no different than Congress asking private companies to “voluntarily” restrict objectionable material in the statute. Exactly where is that “voluntary” line drawn? Here the government’s request is much more obvious than the request in the statute, but it’s the same basic request. The FBI (not Facebook) clearly considered the Hunter Biden laptop story “objectionable” (albeit, it proved to be true), and they requested Mark “voluntarily” block it, and then he acted at their behest. Mark acted voluntary as an agent of state. That’s exactly what Section 230 does. What the FBI did, amounts to…
Hey Mark, do you mind “voluntarily” suppressing the Hunter Biden laptop story for us, as Russian disinformation, but we’re not telling you to suppress that information or anything, because that would be unconstitutional and stuff for us to suppress it. ~ sincerely, your friend and protector, the FBI
So, how did we get here? Well, unfortunately, the mistaken legal interpretations of Section 230 over the past two decades have resulted in a mountain of “questionable precedent”. Questionable precedent that many legal scholars rely on when drawing interpretive conclusions. Unfortunately, their information is bad and their conclusions are often wrong. Rather than rely on bad precedent, we went back to the root construction of the law. *Don’t even get me started on what an “Intelligible Principle” is, and why there are quotes surrounding the term “Good Samaritan.” – enjoy that research rabbit hole*
So to answer the question: “does Section 230 authorize a private entity to voluntarily act as a state actor?” The answer is a resounding – YES! They are state actors, especially if they seek Section 230 protection. These new revelations don’t really change what we already knew was state action hidden behind private entity’s rights. The more important question that we must ask is whether or not that authority (i.e., Section 230’s authority) is Constitutionally sound? That’s exactly what our Constitutional Challenge is asking of the courts – to interpret the statute, and decide once and for all, if Section 230 is Constitutional. Can the United States constitutionally delegate quasi-legislative regulatory authority directly to a private corporation, who can voluntarily restrict the life, liberty, property and / or the lawful free speech of a third-party US citizen under the protection of government? Isn’t Section 230 a violation of every user’s first and fifth amendment rights? I would say the answer is a definitive – YES, but we will soon find out the real answer to those questions.
As Congressman Gohmert pointed out back in April, in a press conference on Capitol Hill, “We have a case (Fyk vs Facebook) where the courts could, and should clarify what Section 230 should mean…. It must be repealed, but it’s not going to happen with [a Congress] that have abandoned their civil rights roots.”
Congressman Gohmert accurately recognized that repealing Section 230 is not going to happen when Congressmen have abandoned their civil rights roots, and that’s why we’ve undertaken the judicial approach. On September 13th 2022 the United States Attorney General’s office is scheduled to respond to our Constitutional Challenge. The executive branch’s stance on whether to keep or revoke Section 230 will soon become abundantly clear. But there is still hope for the legislature. Congress needs to return to its civil liberty roots. Section 230 is not a lost cause! It can still be fixed and we’ve (i.e., myself and David Morgan) taken the time as civilians, to do exactly that. We’ve researched and assembled the Online Freedom Act which supplements the qualifications, legislative oversight, and procedural safeguards that are currently missing in Section 230. We aren’t reinventing the wheel, so to speak, just installing more spokes, so that Section 230 functions as intended and respects the rights of all internet users.
But we need your support. Please contact your Congressman or Congresswoman and tell them to listen to us, and to enact the Online Freedom Act and / or support Congressman Gohmert’s Congressional Amicus of our Constitutional Challenge. We’ve found Section 230’s Achilles’ heel and we are aimed right at it. Help us win back our civil liberties online.
For more information on Section 230, or to support our efforts to restore your freedoms online, please go to the Social Media Freedom Foundation. We need your help!
-Founder of the Social Media Freedom Foundation
-Founder of the Online Freedom Caucus
-Co-author of the Online Freedom Act
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