OP-ED: Supreme Court just dropped the ball on internet regulation
The Supreme Court just side-stepped fixing one of the most pervasive problems in America: Big Tech’s unaccountability.
The United States Supreme Court recently took up two cases, Gonzalez vs. Google and Taamneh vs. Twitter, to “address §230,” only to turn around on May 18th, 2023, and decline to address §230.
Yesterday’s decision not to address §230 comes on the heels of the Supreme Court also declining (on April 17th, 2023) to hear my §230(c)(1) case (i.e., Fyk vs. Facebook) for the second time in five years.
The anti-climactic conclusion of their opinions in the Google and Twitter cases before the high court this week reads:
“We therefore decline to address the application of §230 to a complaint that appears to state little, if any, plausible claim for relief.”
This is a subject in which I have a significant stake and hard-earned expertise.
In 2018, I sued Facebook for anti-competitive misconduct. I took my case all the way to the Supreme Court, not once, but twice, and to this day, the courts have still not reconciled their own contradicting decisions.
Now, not only did the Supreme Court decline my case for the second time, it side-stepped addressing §230 altogether. How can we have confidence in a Supreme Court that won’t address matters of national importance and lower courts that won’t reconcile conflicting decisions?
For example, during my first run to the Supreme Court, the 9th Circuit Court determined §230(c)(1) “shields from liability [] all publication decisions, whether to edit, to remove, or to post” (i.e., without any measure of motive). In other words, the California courts believe §230(c)(1) protects anything and everything that a Service Provider does online, regardless of motive or intent (which would include anticompetitive conduct). Concurrent with my case, the 9th Circuit Court also determined, “[t]he Good Samaritan provision of the Communications Decency Act does not immunize blocking and filtering decisions that are driven by anticompetitive animus.” Enigma Software Group USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040
So, does §230(c)(1) protect “all publication decisions” regardless of intent, or does §230(c)’s “Good Samaritan” provision (i.e., the general motivation by which the Service Provider must act) matter at the start of any litigation? Seemingly, it mattered in Enigma vs. Malwarebytes but not in Fyk vs. Facebook.
Because of the conflicting decisions, I when back to the District Court and asked, which is it? Does §230(c)(1) override §230(c)’s general provision, or does the general provision apply generally to the statute? It seems like an obvious answer, but the Judge (now retired) dismissed my motion again, claiming Enigma examined §230(c)(2) and my case examined §230(c)(1). In other words, the judge said the statute’s general provision does not apply “generally” to the statute (i.e., to both §230(c)(1) and §230(c)(2)).
Since the District Judge decided not to reconcile the decisions, I went back to the 9th Circuit Court for the second time. Instead of reconciling its conflicting decisions, the 9th Circuit relied on purported procedural error (i.e., “timeliness”) to deny me my day in court, yet again, for what was now the sixth time in a row. I petitioned the Supreme Court for the second time (which cost another $20,000 to file), asking whether §230(c)(1) protects any conduct at all and does the “Good Samaritan” motivation matter.
I know §230(c)(1) does not protect Facebook’s anticompetitive conduct, but Ted Cruz articulated the answer best in his Gonzalez Amicus, “§230(c)(1) does not immunize any conduct at all.”
That section of the Communications Decency Act does not provide any immunity.
Rather, it states a definition: no [ICSP] ‘shall be treated as the publisher or speaker of any information provided by another [ICP].’ 47 U.S.C §230(c)(1). Although this requirement can indirectly affect liability, it (1) does not directly confer immunity, and (2) applies only in limited circumstances where the elements of a claim turn on treating an Internet platform as the speaker or publisher of others’ words.
Outside of this limited realm, §230(c)(1) plays no role whatsoever, and the lower courts – including the Ninth Circuit [] – have erred by turning §230(c)(1) into a super-immunity provision.
“All publication decisions” (i.e., publishing conduct) cannot possibly be protected by §230(c)(1) because that’s what Cruz called “super immunity.”
The courts are flat wrong and have been for two and a half decades.
In fact, §230(c)(1) does not protect any publication decisions at all!
The court’s interpretation of §230(c)(1) is literally diametrically opposed to its correct application. “Well, there’s your problem!” ~ Adam Savage
Sen. Ron Wyden (D-OR), one of the original authors of §230, said that he wanted to provide platforms with a “sword and a shield.”
Over the past two and a half decades, and through a process of proof-texting, and sloppy draftsmanship, the §230(c)(1) defensive “shield” (i.e., not being treated as another), became a secondary offensive weapon (i.e., not being treated as themselves – unlimited publishing authority, regardless of intent), rendering the actual §230(c)(2) “sword,” (i.e., limited publishing authority) superfluous. In other words, §230(c)(1) became what Ted Cruz called “super-immunity,” and §230(c)(2) became redundant protection.
This is really a simple fix, do what the statute’s text says.
So, why aren’t the courts doing that?
Well, Justice Kagan said in a pertinent part during oral arguments, “I don’t have to accept all [Google’s counsel’s] “the sky is falling” stuff to accept there is a lot of uncertainty about going the way you would have us go [i.e., applying §230 as written], … once we go with you [i.e., once we fix §230], all of a sudden, we’re finding that Google isn’t protected. And maybe Congress should want that system, but isn’t that something for Congress to do, not the Court?”
How does Congress fix §230 if §230 isn’t really broken?
They can’t, and that’s why none of the proposed §230 legislation seems to work. I know because I redrafted §230 as the Online Freedom Act.
The OFA doesn’t change §230’s intended purpose; rather, it prevents the courts from making the same mistakes it’s been making. Put simply; the OFA forces the courts to color within §230’s legal lines.
It is not Congress’s job to fix the Court’s mistakes.
Congress clearly wanted “that system” because it specifically articulated “that system” in §230, whereby content manipulation (i.e., responsibility for the development of any information, in part – i.e., §230(f)(3)) is not protected by §230. §230 is simple, §230(c) defines the intent, §230(c)(1) says the provider or user can’t be treated as someone else, and §230(c)(2) authorizes limited “good faith” third-party content restrictions (i.e., not all publication or content provision decisions) voluntarily undertaken by the provider or user.
The “sky [may be] falling” for big tech if §230 were to be applied correctly (i.e., applied as written), but it would not be falling for the general public.
All of a sudden, publication decisions that are intended to increase the distribution or availability of content would subject the provider or user to liability for their own publishing conduct.
Suddenly, Google, Facebook, Twitter, and every other “Interactive Computer Service Provider” that develops information (i.e., allow, sponsor, boost, promote, recommend, or make information more available, especially by deliberate effort over time), that manipulates any user’s content, for its own intended purposes, is no longer protected by §230 (i.e., with the limited exceptions of what §230(c)(2)(A), and §230(c)(2)(B) allows).
Suddenly, the Internet would change.
The playing field would be leveled in favor of the public interest, not in favor of Big Tech’s interests.
Too bad the Supreme Court just sidestepped its job once again.
Written by Jason Fyk, founder of the Social Media Freedom Foundation. You can follow him on Twitter @JasonFyk.
Editor’s note: This is an opinion column that solely reflects the opinions of the author.
