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  • Opponents of Section 230 Can Reform It Without Congress

Opponents of Section 230 Can Reform It Without Congress

William L. Kovacs

June 2021

Opponents of Section 230 Can Reform It Without Congress

Critics of section 230 of the Communications Decency Act (“sec. 230”) have discussed reforming it for a decade. Section 230 has two primary provisions. The first exempts internet providers from civil liability for publishing any information from a third-party content provider that is objectionable. The second provision exempts Big Tech from liability when it takes voluntary, good faith actions, to restrict objectionable materials or provides the technical means to restrict them.

Unfortunately, like most politicians, sec. 230 opponents talk and talk. Watch and listen to Senators Cruz and Hawley on cable news. While their talk is full of sound and fury, it really signifies the proverbial nothing. Other conservatives introduce antitrust legislation to break up Big Tech, an endless effort for Congress and the courts. A few opponents just want to repeal sec 230, an incomprehensive statute designed to protect children from online predators but used to protect Big Tech.

Republicans controlled Congress and the White House until 2021 and did nothing to address sec. 230. Now, however, with significant help from Big Tech, especially with campaign contributions and the selective use of algorisms, Democrats gained control of Congress and the White House in 2021. As a result, Democrats will protect Big Tech, as long as it bans conservatives from its platforms. Being free of liability has allowed Big Tech to grow in size and wealth while achieving regulatory control over social media. Big Tech is so powerful, it even banned a sitting President from Facebook and Twitter. In addition, Google and Apple blocked Parler’s App from their stores, and Amazon Web Services suspended Parler’s access to its cloud network, thereby shutting it down for months.

Unless conservatives take innovative, concerted action outside of Congress, Big Tech will remain free to ban conservative voices from social media as long as Democrats hold the White House. It is now time for conservatives to take action or get off the pot.

Fortunately, there are many actions that can be taken with the drama of an inept Congress.

Several times on these pages I have argued that sec. 230 is an unconstitutional delegation of power to private sector companies to regulate other private sector companies. Congress has no constitutional power to authorize private parties to deprive, even unpopular citizens, of their constitutional rights. Moreover, when private parties control the new public square, they function as a state actor and must provide constitutional rights for all.

These principles are set out in Carter v. Carter Coal Company, (1935) and  Marsh v. Alabama, (1946). Since the First Amendment severely limits governments’ power to regulate political speech, the government cannot grant private parties, functioning as a government, more power than it has. If Congress desires to impose speech limitations on the Internet, it must do so directly, by government regulation that protects the constitutional rights of citizens.

Opponents of sec. 230 can take several actions to achieve reform.

helpful resources Action 1: file a lawsuit asserting sec. 230 is an unconstitutional delegation of congressional authority. Perhaps the newly formed America First Legal will take on the issue. Free speech is just as important as illegal immigration.

gay seznamka meziboři Action 2: Join Florida in its attempt to restrain the power of Big Tech. Governor DeSantis (R-FL) proposed and had passed a law prohibiting Big Tech from de-platforming the speech of political candidates and imposed fines on violators as high as $250,000 a day. Florida also allows citizens to sue companies violating the law. However, the penalties will not impact Big Tech’s actions. A few weeks ago, Google, with a market capitalization over $1 trillion, settled an antitrust case with French authorities for $270 million, a fraction of a percent of its worth. These individual attempts to control the power of Big Tech will be of limited success against the five largest tech giants having a value of $ 5.2 trillion. The state of Florida’s budget is $101.5 billion. The 2021 combined budget for all fifty states is $2.1trillion. Additionally, Big Tech is challenging the constitutionality of Florida’s law.

http://soundchoir.com/first-official-video/ Action 3: to break Big Tech’s stranglehold on free speech in social media, conservative groups could craft and implement an advocacy plan to restrict the application of sec. 230 without passing a new law. The model for this effort is the radical Left’s brilliant strategy to regulate climate change without passing any new law.

To seriously challenge Big Tech, conservatives will need to develop and implement a coordinated and aggressive strategy that includes legislators, governors, attorneys general, interest groups, legal centers, and citizens who want freedom of speech in the public square.

A similar strategy worked for the radical Left when it developed, coordinated, and implemented its plan to impose climate change regulation on the U.S. without Congress passing a climate change law. The strategy’s components:

  1. Using Administrative Procedure Act laws, file petitions with federal and state agencies to initiate rulemaking to change regulatory policy.
  2. If the petitions are denied, a coalition of states, cities, and non-profit organizations will appeal the denial to the courts.
  3. Use states as lead petitioners in court challenges to secure special standing recognized by the U.S. Supreme Court.
  4. Organize states with similar policy views into regional working units, similar to Compacts, designed to regulate activities of regional concern. For example, nine states in the Northeast and Mid-Atlantic, and three west coast states, formed regional compacts to address climate concerns.
  5. Encourage state Attorneys General, and coalitions to sue on innovative legal theories. One example would be Big Tech’s potential liability for flagging posts as “misinformation,” which were later found to be credible, and Big Tech retracted its label. Specifically, Facebook’s recent retraction of its ban on posts concerning coronavirus leaks from a Chinese lab. Under section 230(f)(3), when Facebook labels a third-party’s content “misinformation,” it is acting as an authoritative speaker on its platform by producing, in whole or in part, new content with the third party. Since section 230 protects platforms, not speakers, Facebook’s speech no longer has immunity from civil liability, and facts supporting its new content may be subject to civil discovery.
  6. Environmental groups brought hundreds of NEPA cases to deny permits to oil and gas operations. NEPA lawsuits could also be brought to block permits for Big Tech’s massive energy-consuming data centers that make the Internet viable, just as permits allow big energy to get its product to market.
  7. Environmental organizations and state attorneys general brought over One Thousand lawsuits against the government and private parties in the U.S. to impose climate regulation. A similar approach could be launched against Big Tech each time it censors “objectionable” content.
  8. Perhaps s a class action suit against Big Tech is appropriate by those whose comments on the lab leak were flagged as “misinformation.”

If conservatives are serious about reforming section 230, they have all the tools for success: 27 Republican governors, 25 Republican Attorneys General, and certainly the numerous groups believing in free speech. Recently, twenty-five red states independently opted out of accepting extra federal unemployment benefits. These actions demonstrate a significant base of potential support. The key to success rests in the conservative’s willingness to plan, organize and implement like the Left.

Message to conservatives: If sec. 230 is truly the concern you make it to be; it’s time for the talking to stop and the action to start.

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  • Big Tech Is a State Actor Having Constitutional Obligations

Big Tech Is a State Actor Having Constitutional Obligations

William L. Kovacs

April 2021

Big Tech Is a State Actor Having Constitutional Obligations

Readers of the political press are familiar with the actions of Big Tech to censor the social media speech of former President Trump, several Republican Congressman, and purges of thousands of conservative social media accounts. Since these actions were taken by private parties against private parties, it is generally assumed the Constitution does not apply and Big Tech, with congressional immunity from suit, can regulate the Internet activities of private parties as it wishes.

When Big Tech uses the powers authorized by section 230 of the Communications Decency Act (“CDA”) to restrict access to materials on the Internet it considers “objectionable,” it is acting for the state (“State Action”). As a state actor, Big Tech must provide the same constitutional protections as the government provides.

In a prior article, I argued section 230 was an unconstitutional delegation of authority by Congress to private parties. The seminal case supporting this position is  Carter v. Carter Coal, a 1936 U.S. Supreme Court case invalidating the delegation of government power to private coal producers to regulate other coal producers. The court characterized such action as “Legislative delegation in its most obnoxious form.” The holding has not been challenged for 85 years.

Unfortunately, Congress continues to ignore its unlawful delegation while Big Tech continues to regulate speech in the social marketplace as if the delegation is valid. Due to the significant impact on free speech, this controversy should be quickly resolved.  There are three possible outcomes: Congress re-writes the statute; the court declares section 230 constitutional or unconstitutional, or courts provide due process rights for objectionable speakers deprived of free speech by state actors. The first two options are years in the future. Affording due process can be immediate.

http://acevisionnepal.com/trip/pikey-peak-trek/ When are actions by private parties State Action?

There are two situations in which the actions of private parties are deemed State Action: (1)     there is a close relationship between the actions of the private party and what government seeks to have accomplished; or (2) the private party performs a traditional government function.

 Constitutional protections are mandated when private parties are state actors

While State Action is a factual matter, the Supreme Court, in Skinner v. Railway Labor Executives’ Assn. (Labor Assn.) ruled on a situation similar to the actions of Big Tech. In Skinner, the government authorized but did not compel, private railroads to drug test employees as part of accident investigations. Railroads voluntarily conducted the tests. The Labor Assn. sought to enjoin the railroads from conducting drug tests, claiming unlawful searches in violation of the Fourth Amendment. The Supreme Court held that while the railroad’s program was a private initiative, the tests, encouraged by the government, cannot be viewed as private action outside of the reach of constitutional protections, i.e., state action.

As with Skinner, section 230 of CDA, did not compel Big Tech to restrict materials it deemed objectionable. Moreover, like Skinner, the government’s grant of section 230 immunity and power to restrict materials, produced a close relationship between Big Tech and government that encouraged Big Tech to actively implement government’s goals, i.e., state action.

Another case, Marsh v. Alabama involved a company-owned town that operated like any other town, except that it prohibited the distribution of certain religious literature. The U.S. Supreme Court held when private parties exercise powers traditionally reserved for the state, they perform a public function; thus, bound to respect constitutional rights, the same as government.

The private parties owning the town of Marsh, like the private parties operating the Internet, both regulated speech. When Big Tech controls speech in the public square, it exercises state regulatory power. And, like Marsh, it must respect the constitutional rights of those in the square.

Courts have the power to immediately protect objectionable free speech

The actions of Big Tech are State Actions reviewable by courts that can balance the property interests of private parties against the free speech and due process rights of objectionable speakers.

Determining the process due a litigant depends on the situation. If only property rights are involved and other administrative processes are available to protect those rights, a hearing is generally not required before the deprivation occurs. However, when fundamental liberties, e.g., speech, are involved, courts must provide hearings before the deprivation of rights occurs.

While litigants cannot seek monetary damages due to Big Tech’s immunity from civil liability, they can seek a hearing for injunctive relief and discovery of why their free speech is being denied, before losing their right to speak in the public square.

This article was originally published in The Hill.

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  • Section 230 Unconstitutional Delegation of Power to Big Tech

Section 230 Unconstitutional Delegation of Power to Big Tech

William L. Kovacs

January 2021

Section 230 Unconstitutional Delegation of Power to Big Tech

In the frenzied days after Democrats won control of Congress, the presidency, and rioters invaded the Capitol, Big Tech, relying on section 230 of the Communications Decency Act, for immunity from civil suit, launched a surprise attack on web content they deemed objectionable. Twitter permanently banned President Trump’s account, wiping out his contact with 88 million followers and banned thousands of conservative social media accounts. Google and Apple blocked Parler’s App from their stores and Amazon Web Services (“AWS”) denied Parler access to its cloud network. Parler was shut down. A swath of conservatives lost the ability to speak on the Internet, the nation’s new public square, the place where political ideas are exchanged, and commerce flows.

Two questions must be answered –

  1. Can private parties controlling the public square, deprive citizens of their right to free speech? and
  2. Can Congress empower private parties to regulate competitors?

Congress spectacularly muddled section 230 and the U.S. Supreme Court has not addressed it. Fortunately, decades-old Supreme Court cases involving the tech giants of yesteryear, i.e. coal companies, railroads, and company towns, provide guidance on the limits of big tech’s power to regulate the public square.

What does section 230 do?

Section 230 has two primary provisions. The first exempts internet providers from civil liability for publishing any information from another content provider that is objectionable. The second provision exempts Big Tech from liability when it takes voluntary, good faith actions, to restrict objectionable materials or provides the technical means to restrict them.

Private parties cannot deprive unpopular citizens of constitutional rights when governing the public square

By granting Big Tech immunity from civil liability when restricting material from the Internet it deemed objectionable, Congress encouraged and indirectly authorized private parties to regulate speech.  Congress has no constitutional power to authorize private parties to deprive, even unpopular citizens, of their constitutional rights. Moreover, when private parties control the new public square they function as a government and must provide constitutional rights for all.

These principles are set out in Marsh v. Alabama, (1946). Marsh, a privately owned town, made it illegal for persons to distribute religious literature on its sidewalks. Since the town functioned like any other community having speech and commerce, citizens in the town had the same rights as if in a municipal town. When private parties wield great power over the public’s use of town services, the powers of the private parties are circumscribed by the statutory and constitutional rights of those using the town. Private property rights are not sufficient to justify restricting fundamental liberties.

Since the First Amendment severely limits governments’ power to regulate political speech, the government cannot grant private parties, functioning as a government, more power than it has. If Congress desires to impose speech limitations on the Internet, it must do so directly, by government regulation that protects the constitutional rights of citizens.

Congress cannot grant private parties the right to regulate competitors

By refusing to sell Parler’s app, and by denying Parler’s access to cloud storage, Google, Apple, and AWS, private parties, relying on a congressional grant of civil immunity, took, in essence, regulatory actions to put another private company out of business. Congress has no constitutional authority to authorize, or foster conduct by private parties, that allows them to regulate other businesses. This has been the law since the U.S. Supreme Court’s decided Carter v. Carter Coal, (1936).  

In Carter, Congress delegated to coal producers and miners the power to impose standards on other producers and miners.  Carter held a private entity “…may not be entrusted with the power to regulate the business of another, and especially a competitor. Any statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property. The delegation is so clearly arbitrary, and … a denial of…due process…”

By granting immunity from liability to big tech for restricting materials Big Tech deems objectionable, Congress is sanctioning the regulation of private parties by other private parties, an action it has no constitutional authority to authorize. Regulating competition is the responsibility of the government.

The principles in Carter were upheld by the DC Circuit as recently as 2013 in American Assn of Railroads v.US DOT (reversed on other grounds).

Section 230 immunity from suit encourages Big Tech to assume the regulatory functions of government by regulating the rights of other businesses to speak and compete in the public square. The Constitution does not give Congress or private parties this power.

This article was first published by The Hill.