Sup My Unusually Motivated Friends!

The day is Monday, 1/11/2021, and it is now day 315 of the State of Emergency here in NYC.

While November 2020 has seen a 113% increase in gun arrest, a 113% increase in shootings, 40% increase in violent crime, a 42% increase in burglary and a 4% increase in rape, you would think that the State of Emergency was for the surging violence and crime, which is statistically proven to be associated with the lockdowns, the destruction of the economy in NYC, and the overall doom and gloom that is basically published 24/7 by the media.

But nope—not here in the Peoples Republikkk of New Yawkkk.

Here, we don’t give a shit about all those other horrible things, we just want to keep terrifying all of you with a variation of the flu, that has a 99% survival rate, and 80% of the people who apparently have COVID, don’t even have a symptom, and we want to make sure that we always use the worlds “novel” and “unprecedented” when we mention COVID.  Otherwise, the majority of people might realize that it is really all just social control bullshit…

But I digress…

This rant is ACTUALLY not about COVID or CUOMO!!!  Rather, I’m reading a lot of opinions about what is going on between Pump and Big Tech.  I wanted to touch on a few issues. I figure I would set it up like this:

  • Background;
  • The Communications Decency Act;
  • Sec. 230;
  • An analysis into the law; and
  • Applying it to the legal questions of the day.

So lets get started.

What is Section 230.

First and foremost, I am seeing this comment about Sec. 230 a lot. I have no idea what it is, so I am going to do some research here, and share it with all of you.

Sec. 230 comes from the Communications Decency Act (“CDA”).

Communications Decency Act (“CDA”)

The CDA was enacted in 1996 and come from an attempt by Congress to shield children from pornographic material on the internet. Take note, it ORIGINATED out of something we presumably all want, to protect kids of seeing porn. 

The FCC (a Government Agency, not the legislature) heavily regulated “obscene content” on television and radio, but there was no such regulation on the internet.

Congress added Sec. 230 to the CDA, which shielded providers and users of interactive computer services from liability for information that is posted by third parties. In other words, this was set in place to protect entities like GOOGLE, HOSTGATOR, GODADDY, etc., from their users posting naughty information and material on their platforms, using their services.

The Supreme Court Shuts the Act Down in 1997 Holding That in Its Nature, It Blocked 1st Amendment Rights.

The Supreme Court in RENO held:

  • The provisions restricting indecent transmissions and offensive displays were unconstitutionally vague and violated our First Amendment right to free speech.
  • Any benefits derived from the CDA’s Internet censorship could not overcome its detriment to the free exchange of information online.
  • The Supreme Court noted that the regulation of television, radio, and Internet communications should not be treated equally because, unlike television and radio communications, accessing obscene material on the Internet is unlikely to occur by chance. It takes effort for a child to see porno on the internet, unlike television.

BIG IDEA. The Supreme Court ruled against the censorship of posting offensive displays on the internet, held that the benefits were outweighed by the loss on our 1stamendment right.  In other words, freedom of speech prevailed, and people should not be restricted. The government should not promulgate rules that encourage the curtailment of free speech. Reno v. ACLU.

Thus, what remains once these were taken out:

Congress subsequently amended the CDA to remove the provisions struck down in Reno, leaving behind the protections afforded by Section 230, which serve two basic purposes:

  • To encourage the unfettered freedom of speech online;
  • To remove disincentives to self-regulation created by precedent in Internet cases prior to Section 230’s enactment.

Much of the research after this focused on protecting children. Basically, how I look at this, Congress found a way to regulate the internet, by couching it in “protecting children”. They promulgated the Child Online Protection Act (“COPA”), the Children’s Internet Protection Act (“CIPA”) and the Fight Online Sex Trafficking Act (“FOSTA”)

Recent Events With Pump, Twitter, & SECTION 230. Protection for Private Blocking and Screening of Offensive Material.

Background

So here are the facts as I see it:

Twitter has banned Pump’s page citing that “due to the risk of further incitement of violence,” they were required to cut off his feeds. Specifically, the tweets “were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on Jan. 6, 2021[1].”

This follows Facebook, just a day earlier, who also blocked Pump’s platform, stating that “we believe the risks of allowing the president to continue to use our service during this period are simply too great,” holding that Facebook and its photo-sharing site Instagram would extend blocks, first put in place on Wednesday “until the peaceful transition of power is complete[2].”

Many lawmakers, unfortunately (because it should have been both sides frustrated), mostly republicans, have taken issue to his citing that they do this because they are given immunity for their actions. In a series of Twitter updates, Lindsey Graham stated:

“Big Tech are the only companies in America that virtually have absolute immunity from being sued for their actions, and it’s only because Congress gave them that protection.”

“It is now time for Congress to repeal Section 230 and put Big Tech on the same legal footing as every other company in America. Legal accountability.”

“I’m more determined than ever to strip Section 230 protections from Big Tech (Twitter) that let them be immune from lawsuits.”

The question I want to tackle here is why is Sec. 230 the way to go?

Law Defined.

Sec. 230, Protection for private blocking and screening of offensive material, speaks of the following:

Sec. (a), Findings. The internet is become more readily available than ever to citizens. Citizens are given a great degree of control over the information they receive and develop. The internet offers true diversity in political discourse and promotes intellectual activity. The internet would benefit with as MINIMAL GOVERNMENT INTRUSION AS POSSIBLE. Americans rely in interactive media and the internet delivers.

Sec. (b), Policy. The purpose of Sec. 230 is to (1) promote interactive internet media, (2) promote a competitive marketplace that exists unfettered by regulation, (3) encourage development of technologies to maximize user control (USER BEING SOMEONE LIKE TRUMP), (4) incentivize blocking techniques to give parents control over what their children see; and (5) to encourage vigorous enforcement of criminal laws to punish obscenity.

Sec. (c), Good Samaritan. THIS SECTION I AM GOING TO PUBLISH DIRECTLY HERE, because this is where the debate is:

(c) Protection for “Good Samaritan” blocking and screening of offensive material.

(1) Treatment of publisher or speaker.

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability.

No provider or user of an interactive computer service shall be held liable on account of—

(A) 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

(B) 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) [subparagraph (A)].

This protects the providers, defined as any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

Why is This Section Relevant?

It would appear that Big Tech (Facebook, Twitter, Apple & Google) is saying that they are obligated under the law to take down these posts, holding that these posts have incited violence and have caused the riots on the Capitol.

At some point, someone must have mentioned suing Big Tech, but then lawmakers who are in favor of Big Tech’s actions have pointed to Sec. 230.

Lawmakers have stated they would like to remove Sec. 230’s immunity.

First Question – Why Does 230 Apply?

I am unsure of what Pump has posted on Facebook, Twitter or Instagram, but I am pretty confident that it wasn’t to the point where it is considered to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable where someone would sue them as a result of failing to moderate the message, as is required in the statute.

Second, in the grand scheme of things, Twitter has been endlessly cited as permitting child pornography on their pages and platforms. A lady by the name of Ms. Haley McNamara, who serves as the Director of the International Centre on Sexual Exploitation in the UK, and a Vice President at the U.S. based National Center on Sexual Exploitation, has led a campaign on the child pornography and sexual exploitation culture on Twitter.

Ironically, while Twitter is banning Pump, at the same time, they have failed to take any action to cure this stuff.

Third, the intention of the Sec. 230 immunity was to help both encourage free speech, and also protect children by giving parents control.

BIG IDEA. Twitter is not the parent of PUMP. Sec. 230 is not designed to silence naughty speech. It was designed to encourage social media platforms and providers to create technology which would enable parents to get more involved in controlling the obscene images their children see.

So I am not so sure why Sec. 230 is really at issue here, nor do I think it is relevant on the text of the statute.

Question, Do You Have a First Amendment Right to Free Speech on a Private Platform?

So lets just get down to the nitty gritty.

Funny, because this question is actually a farce.

Obviously, the Constitution was our contract with the federal government.  We ultimately extended that contract to the states, to ensure us the same sort of protections.  All laws and rules of the United States are supposedly grounded in constitutional principles.  So the first concept is that all rules, laws and legislative bodies are both directly and indirectly applying constitutional principles on private entities almost daily.

A perfect example is slavery. The 13th Amendment says that “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

So what if a Private Company has policies in place that have the defacto effect of forcing people to work against their will?  Private Contractors, such as Kellogg Brown & Root, hired by the US Government to perform services overseas, have been cited in numerous occasions for forcing people to “work against their will, being denied the ability to leave, or even call home.” Each of these workers were promised pay, but they never received their pay. Numerous Private Companies within the US, GL Mezzetta, Inc., who were looking to hire cheap labor, have been cited for forcing their employees to work an obscene amount of hours against their will.

Is that not involuntary servitude in effect?

Involuntary Servitude is defined as employment that is physically or legally coerced. Involuntary servitude occurs when a victim is forced to work for a person or entity by the use or threat of physical restraint or physical injury, including the use or threat of coercion through law or the legal process, or the use of fear of such means. Determining whether a person engages in a particular job, work, or employment involuntarily may include consideration of the absence or miserliness of compensation, of other means of coercion, of poor working conditions, or of the victim’s special vulnerabilities; any of which may corroborate disputed evidence regarding the use or threatened use of physical or legal coercion.

The Courts have discussed that there is a real public policy against involuntary servitude, however, private entities take the position that they can’t be regulated using constitutional principles because the constitution wasn’t supposed to be used against a private entity. The Court was clear to say that the public policy against involuntary servitude whether it arises from state law or the United States Constitution is not preempted by the FLSA. The public policy against involuntary servitude is not exclusively derived from a state statute or the FLSA. It has it’s roots in the US Constitution, specifically the 13th Amendment. Higgins v. Food Lion, Inc. So yes, constitutional principles can be applied against private enterprises and are done quite often.

BIG IDEA. We need to stop saying that there are no constitutional protections against a private company. The fact is that the public policy that underlies the rules that apply to them are derived from the U.S. Constitution and are predicated on constitutional principles.

So going back to the question, do you have a 1st Amendment Right to Free Speech on the Internet?

ANSWER. In my eyes, the question is whether or not the “internet” is a public forum.

Case law holds that the degree of First Amendment scrutiny accorded to governmental decisions limiting speech on public property depends on whether the property in question is a traditional public forum, a government-designated public forum, or a non-public forum.

A “public forum” is traditionally a place or medium customarily employed for public speech. A traditional public forum exists wherever people traditionally or commonly engage in public speech. When the term public forum is used without any other qualification, it likely means a traditional public forum. A speaker’s corner in a public park, certain pavilions in a city, and a bulletin board for public use may all be established by custom as a public forum. Access to a traditional forum cannot be denied because of the subject matter of the speech, although it may be limited by reasonable regulations of time, place, and matter.

Thus, a true “public forum” enjoys freedom of speech. True “public” forums are those which by long tradition or by government fiat have been devoted to assembly and debate. In these places the government may not place a blanket ban on expression[3].

The Court has held that a “public forum” need not be spatial or geographic and the same principles are applicable to a metaphysical forum. The Court has ruled that opening an instrumentality of communication for indiscriminate use by the general public creates a public forum. Knight First Amendment Inst. at Columbia Univ. v. Trump

So the question is, by now, is Twitter or Facebook a true “public forum” in which they are to ensure certain guaranteed constitutional principles such as free speech?

For Those of You Who Keep Saying, but They Are a Private Entity, the Law Does Not Work Like This.

Generally, constitutional restrictions that bind state actors, the government, or its agents, do not ordinarily bind private actors. You have seen this in many cases, and this is what most people lean on. Certainly, Courts have said expressly that the 1st and 14th Amendment safeguard rights of free speech and assembly by limitations on state action, not on action by the owner of private property used for private purposes in a nondiscriminatory manner.

However (which is a word you should get used to by now) Sec. 1983 of the USC allows individuals, who have been deprived of their constitutional rights by private parties who act under state authority, are permitted to hold those PRIVATE PARTIES accountable. For example, when a private company (i.e. let’s say a private security company) performs a public function (i.e. provides security for a national park), that private entity becomes deeply entwined in the action of the state and Courts have found the private actor is acting with the

authority of the state, as its surrogate, and is then regulated by the state.

BIG IDEA. Supported by Case Law, the Courts hold that the character of a legal entity is determined neither by its expressly private characterization in statutory law, nor by the failure of the law to acknowledge the entity’s inseparability from recognized government officials or agencies. See Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n.
BIG IDEA. So the reality is, it isn’t just that TWITTER is a private company and can do whatever it pleases, but the question is by TWITTER serving a purely public forum function, are they, in fact, acting as a surrogate, for the Government?

Enter the Lugar Test.

The Supreme Court was set to answer this question in a 2-part test in Lugar v. Edmondson Oil Co. Inc.  In a situation where a PRIVATE ENTITY acts under the color of law, they are treated in the same way as the state action. The rule that a PRIVATE ENTITY, who jointly participates with a state official in a wrongful act constitutes both (a) the element of a state action, and (b) that the action was taken under the color of law. Lugar v. Edmondson Oil Co.

Lugar tells us if (1) the deprivation must be caused by the exercise of some right or privilege created by the State or by some rule of conduct imposed by the state or by a person for whom the State is responsible, and (2) the party charged with the deprivation must be a person who may fairly be said to be a state actor,” either as a state official, or as someone whose “conduct is otherwise chargeable to the State,” then they are the proper party to go after.

Now take this, and expand it as it was in DOT v. Ass’n of Am. R.R., and the Court determined that if there is significant ties to the Federal Government, for instance, the private company’s priorities, operations, and decisions—if they are extensively supervised and substantially funded by the political branches, then they are in fact just another arm of the government!

Tech is a bit different here.

There is no doubt that Google does a SIGNIFICANT AMOUNT OF BUSINESS with the federal government. Since 2007, Google has become increasingly active in procuring government work— and since 2007, Google has sold a variety of services which are catered to the government, specifically enhanced versions of Google Earth, search engines that can be used internally by agencies, and modified suites of email, document and spreadsheet products similar to Microsoft Office but hosted on Google’s servers. We use public / free versions of this today, but these were programs originally designed to attract government contracts.

The money element is there for Google, but probably not for Twitter. Twitter, on the other hand, has openly engaged in a free public forum—which is traditionally governed by constitutional principles.

So I ask again—if the legal formalities of whether or not you are a private business are irrelevant, and the true test is (a) your level of government involvement and oversight (which unquestionably, the FCC has plenty of oversight over the internet), and (b) the level of delegation by the government to the private entity (so long as the government retains pervasive surveillance and authority), under those conditions, is Twitter truly a private business, that falls out of such regulation? Can’t be.. if you are true to the common law, and how it has developed, then you see this is not so cut and dry.

I argue that if there is a FREE version of a web platform, that is open to the public at large, heavily regulated by the government, then they are to be treated just as any other public forum.

In conclusion, Twitter, much like Facebook, should be required to promote free speech, no matter how naughty it is, unless the go totally private, and start charging for admission and their service. As they are a free, no admissions, no fees, web based version of a true public forum, where one can go and speak their mind without restriction, they should not be banning any accounts, prohibiting any speech, and should be encouraging free comment between all parties.

Big Take Aways.

  • The SCOTUS had chosen to keep airways free from government restriction, and freedom of speech as a concept was even more important than the legislature trying to pass the constitutional restriction on transmitting offensive material over the internet.
  • Parents are responsible for ensuring that their children are watching proper material on the internet.
  • Section 230 was grounded in protecting children from watching obscene material online, however it was designed in a way that encouraged Big Tech to create technology to ASSIST PARENTS IN REGULATING WHAT THEIR CHILD WATCHED.  Twitter is not supposed to be the parent, and a comment (that by many is not offensive at all), was never the target here.  So I don’t think Twitter / Facebook should be invoking this, since I think it is irrelevant, nor do I think striping this either makes sense. It just seems to be irrelevant in the grand scheme of things.
  • Twitter serving as this moral compass is laughable– just ask Ms. Haley McNamara who has lead the charge against Twitters child porn and sexual exploitation campaign.
  • I find it ironic that Sec. 230 was designed to “protect free speech” however it is discussed in the context of blocking speech. Go figure.
  • At some point, someone is going to make a bold statement that FREE websites are not private enterprises.  If the Court has determined that a public forum includes a website forum, and if that is the case, there are certain free speech rights Americans enjoy.  If a private entity is administering a government function, i.e. a public forum, then it is to be treated like a government entity and constitutional restrictions would apply.
  • Also, remember that constitutional principles HAVE been applied against private businesses on numerous occasions. Just ask Food Lion.
  • If a private business performs a government function, then that private business will be expected to maintain the government standards and principles of protection.
  • Twitter is essentially serving as the manager for the free public forum, and as such, should be upholding constitutional principles and mandates.

Your line up of case law is as followed.  Please stay UNUSUALLY MOTIVATED my friends. 😊

Yours in love, law and lifts.

The Most Jacked Attorney in NYC.