Leftist publications and pundits are rubbing their hooves in glee at the Department of Justice’s response to our recent lawsuit challenging Section 230 of the Communications Decency Act, which provides immunity from lawsuits to Facebook, Twitter, and YouTube, thereby permitting these social media giants to engage in government-sanctioned censorship and discriminatory business practices free from legal challenge.
In order for us to sue Facebook (which is our intent), we need to knock out this federal immunity statute, which prevents us from suing Facebook, first. Our lawsuit is therefore against the federal government. We knock out the immunity, and then we can sue Facebook, Twitter, and YouTube.
In response, the Justice Department simply tried to dodge the issue, saying we were suing the wrong entity. Our lawyers are preparing a full-throated response, but meanwhile, the left is crowing: this little hit piece about our case is filled with hyperbole and nonsense. The government filed a very predictable motion that, unsurprisingly, raises two issues: our standing to sue and state action. To have standing to sue, one must show an injury in fact that is fairly traceable to the action one is challenging, and that can be redressed by the court. The government concedes in its motion that we have shown that.
However, the government is arguing that the injury is from the social media giants and thus not fairly traceable to them, and therefore the injury is also not redressable by the court. But “fairly traceable” does not require a direct injury from the entity one is suing. If the action we are challenging materially increased the probability of injury, we have met that standard. And we clearly have: as everyone knows, the only reason why social media can discriminate against us the way they do is because of the immunity granted by the federal government.
The second argument that the Justice Department makes in its response to us is related in many ways to the first. The DoJ argues that there is no constitutional violation because the harm caused (the censorship) was by a private actor (social media). That is generally true, but the Supreme Court has declared that the government is responsible when it enacts laws that change the legal relationship between two groups, including the selective withdrawal from one group of legal protections against private acts, regardless of whether the private acts can be attributed to the government — and that is precisely the situation here.
The challenged congressional statute—which, by definition, is an Act of “Congress” – alters the legal relations between us as Plaintiffs on the one hand and Facebook, Twitter, and YouTube on the other, such that these media giants are permitted to censor, with impunity, our speech based on its content and viewpoint. Consequently, state action lies in the enactment of this federal statute, regardless of whether the private acts are attributable to the government. And the resulting injury is “fairly traceable” to the challenged statute and “redressable” by the relief requested. In sum, the government’s motion should be denied.
Our response to the government challenge notes:
Through the use of Facebook, Twitter, or YouTube, anyone person with access to the Internet can become a town crier with a voice that resonates farther than it could from any soapbox, and the same individual can become a pamphleteer. In sum, the Internet, particularly through social media, has become the new marketplace of ideas.
Today, the impact of the Internet as a medium of worldwide human communication cannot be overstated. Social media, particularly including Facebook, Twitter, and YouTube, are exceedingly important for worldwide human communication and thus provide important forums for that communication. Denying a person or organization access to these important social media forums based on the content and viewpoint of the person’s or organization’s speech on matters of public concern, as in this case, is an effective way of silencing or censoring speech and depriving the person or organization of political influence and business opportunities.
Businesses that provide Internet services in California, such as Facebook, Twitter, and YouTube, are subject to § 51 of the California Civil Code, which prohibits discrimination on the basis of political affiliation, religious affiliation, or political or religious beliefs, including speech expressing those beliefs. Facebook’s, Twitter’s, and YouTube’s discrimination against Plaintiffs as set forth in the Complaint violates § 51 of the California Civil Code, but for § 230 of the CDA.
By way of Section 230, the government is empowering this type of discrimination and censorship. By its own terms, this statute permits Facebook, Twitter, and YouTube “to restrict access to or availability of material that [they] consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” But this statute does not provide any kind of objective standard for determining which speech is “objectionable.”
Consequently, Section 230, according to our response:
- is a content- and viewpoint-based restriction on speech;
- is vague and overbroad and lacks any objective criteria for suppressing speech;
- permits Facebook, Twitter, and YouTube to engage in government-sanctioned discrimination and censorship of free speech;
- permits Facebook, Twitter, and YouTube to engage in government-sanctioned discrimination that would otherwise violate California Civil Code § 51;
- permits Facebook, Twitter, and YouTube to engage in government-sanctioned censorship of speech that would otherwise violate Article I, section 2 of the California Constitution;
- confers broad powers of censorship, in the form of a “heckler’s veto,” upon Facebook, Twitter, and YouTube officials, who can censor constitutionally protected speech and engage in discriminatory business practices with impunity by virtue of this power conferred by the federal government;
- grants Facebook, Twitter, and YouTube and their officers, agents, and employees unbridled discretion to censor Plaintiffs’ speech such that their decisions to limit Plaintiffs’ speech are not constrained by objective criteria, but may rest on ambiguous and subjective reasons; and
- permits Facebook, Twitter, and YouTube to restrict Plaintiffs’ speech based on its content and viewpoint.
Can we guarantee that the judge will agree with us? No plaintiff can ever do that, and certainly not in the types of cases we bring. If the district court judge dismisses our case, will we pursue this further, including possibly to the Supreme Court? Yes. This issue is too important. With this power of censorship, social media could seriously influence this presidential campaign, and indeed, is already doing so.
For years I have documented the outrageous bias of Facebook’s speech policies. Notoriously one-sided, those who oppose jihad terror, support Israel and stand against the most brutal and extreme ideology on the face of the earth (sharia) have been systematically blocked and banned. Just last June, Facebook took down my page and blocked me after a devout Muslim opened fire on a gay nightclub in Orlando, Florida. Facebook said they took down my page because of their rule against “hateful, obscene, or threatening” content.
But it is not hateful, obscene, or threatening to oppose jihad terror such as we saw in Orlando and in so many other places. Truth is not hateful or obscene. What is hateful, obscene and threatening is that Facebook is moving to silence everyone who speaks honestly about the motivating ideology behind such attacks. To get at Facebook and the other social media giants, we have to challenge the government statute first.
The left needs to handicap and shut down the opposition, because its positions do not stand up to refutation and cogent analysis. That’s why the “liberals” are working hard to shut down free speech. Liberal, indeed. But we will continue to fight them every step of the way.
Pamela Geller is the President of the American Freedom Defense Initiative (AFDI), publisher of PamelaGeller.com and author of The Post-American Presidency: The Obama Administration’s War on America and Stop the Islamization of America: A Practical Guide to the Resistance. Follow her on Twitter here. Like her on Facebook here.