Countering Big Tech censorship through state legislation, Part Two

Yesterday, I suggested an approach to fighting back against Big Tech’s censorship of conservative voices that I believe merits very serious consideration — state legislation banning viewpoint discrimination by Big Tech. The suggestion came from a reader and distinguished lawyer.

In a follow-up message, the same lawyer considered possible legal difficulties with his approach:

It appears the only issue (not surprisingly) is Section 230 [of the Communications Decency Act]. It creates two specific hurdles:

1. It provides immunity to interactive computer services for “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.” 47 U.S.C.A. § 230(c)(2) (emphasis added).

To address this, states could simply legislate that intentionally discriminating against otherwise-lawful political speech they disagree with is not “good faith.” I have yet to find a court decision that says “good faith” necessarily includes such discrimination, or that such an interpretation would be inconsistent with federal law. See also id. at §(e)(3) (“Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section.”).

2. It provides that “[n]o 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.” Id. at § (c)(1). This obviously seems designed to protect the services from libel lawsuits for other people’s material (in fact, Section 230 was expressly written to do just that by overturning an NY decision called Stratton Oakmont, Inc. v. Prodigy Services Co.). Indeed, a plain language reading of this, in my view, would not protect Twitter from otherwise-unlawful viewpoint discrimination; after all, they’re not being punished for “publishing” or “speaking” other people’s information at all.

The problem is that many courts have interpreted this subsection very broadly to shield almost all decisions concerning content removal and alteration. That interpretation is not uniform or unlimited, however. See, e.g., e-ventures Worldwide, LLC v. Google, Inc., 2017 WL 2210029, at *3 (M.D. Fla. Feb. 8, 2017) (“[I]nterpreting [Section 230] this way results in the general immunity in (c)(1) swallowing the more specific immunity in (c)(2)”); Darnaa, LLC v. Google, Inc., 2016 WL 6540452, at *8 (N.D. Cal. Nov. 2, 2016) (“Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing, however, is not precluded by § 230(c)(1) because it seeks to hold defendants liable for breach of defendants’ good faith contractual obligation to plaintiff, rather than defendants’ publisher status.”).

And the state is, of course, free to offer its own interpretation of what it means to be a “publisher” or “speaker” of information for purposes of this subsection, which courts may choose to accept. By way of further example, the state could also legislate that the covenant of good faith and fair dealing includes a promise to apply policies equally without regard to users’ political opinions, and that it cannot be disclaimed in the providers’ terms of service. There are other options as well. Given the more moderate/conservative composition of our higher level courts now (especially SCOTUS), and the shocking events of late, a state law like this could give courts an opening to fix things. . . .

Things need to be fixed and we can’t count on Congress to fix them. Legislative bodies in Red States seem like our best bet.

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