from say what now? department
With the launch of Donald Trump’s ridiculous Truth Social offering, we’ve already noted that he relies so heavily on Section 230 protections to moderate that he wrote Section 230 directly into his Terms of Service. . However, at the same time, Trump is still pursuing his monstrously stupid lawsuits against Twitter, Facebook and YouTube for banning him following January 6th.
Unsurprisingly (after moving the cases to California), internet companies are pointing Section 230 to the courts as to why the cases should be thrown out. And, unsurprisingly (but somewhat hilariously), Trump does stupid galaxy brain claims in response. It was the filing in the case against YouTube that kind of eight different lawyers signed on a record so bad that all eight of those lawyers should be laughed out of court.
The argument for why Section 230 doesn’t apply is broken down into three sections, each dumber than the other. First, he asserts that “Section 230 does not immunize unfair discrimination”, which (falsely) claims that YouTube is a “common carrier” (it is not, never was, and does not look like one in any way). The argument isn’t even particularly well made here. It’s three ridiculous paragraphs, starting with Packingham (which is irrelevant for a private company choosing to moderate), then claiming (without any support, since there isn’t any) that YouTube is a common carrier, then saying that YouTube’s terms of service mean it “must contain content, regardless of any desire or external compulsion to discriminate against the requester”.
Literally all of this is wrong. It took EIGHT lawyers to get it wrong.
The second section asserts – incorrectly – that Section 230 “does not apply to political speech”. They do this in totally misrepresent the “findings” part of section 230, then basically ignore all of the case law that says, of course, section 230 applies to political speech. As for the results, if they say that Congress wants “interactive computing services” to create “genuine diversity of political discourse”, as the authors of the bill themselves explained, it is always acts to allow each individual website to moderate as it sees fit. It was never intended that every website should contain all the talk, but rather by allowing websites to manage the community and content they want, there will be many different places for different types of talk.
Again. Eight lawyers are totally and completely wrong.
Finally, they argue that “Section 230(c) violates the First Amendment as it applies to this case.” It’s not. Indeed, if Trump wins this lawsuit (he won’t) this would violate the 1st Amendment in a persuasive speech about the private property of someone else who does not wish to be associated with it. And this section goes completely off the rails:
The United States contends that Section 230(c) does not involve the First Amendment because “it ‘does not regulate the plaintiff’s speech’, but only ‘establishes a neutral rule as to content and point of view prohibiting the accountability” for certain companies that prohibit the speech of others. (US Mot. at 2). Defendants’ egregious conduct in restricting plaintiff’s political speech belies its claims of a neutral standard.
I mean, the mental gymnastics required to make that claim is pretty awesome, so I’ll give them that. But that’s mixing apples and orangutans in an argument that, even if it made sense, still doesn’t make sense. Article 230 does not regulate speech. That’s why it’s content-neutral. Whether the defendant, YouTube, moderates its content – blatantly or otherwise – is irrelevant to the question of whether or not Section 230 is content neutral. Indeed, YouTube’s ability to kick Trump off its platform is itself protected by the 1st Amendment.
Lawyers seem to be going back and forth between the government “The United States” and the private entity, YouTube, here, making an argument that might make sense if it were just one entity , but that makes no sense at all when you switch between the two.
Honestly, this file should become a law school case study of how not to do law.
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Filed Under: 1st Amendment, Content Moderation, Donald Trump, Section 230
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