As center and right-leaning voices attempt to navigate the Big Tech purge, we are seeing a great many articles discussing what can be done to counter the systematic silencing of anyone who disagrees with Democrats, their media activist arm, and Big Tech.

One interesting idea was offered over at Powerline: use state legislatures to establish state laws that protect the state’s citizens from online censorship of lawful speech based on political affiliation.

States can bar large social media platforms and online service providers from discriminating against their state’s residents based on their lawful political statements or affiliations. Such laws could even allow Big Tech to continue deleting dangerous material, etc. if they wanted–so long as the standards were applied neutrally across the political spectrum. That way, someone could sue for ideological discrimination, and if they presented evidence of a similarly “problematic” account or tweet that was not deleted, they could prevail in court.

This would effectively stop the ideological purge in its tracks, as Big Tech steadfastly allows a lot of horrific tweets to remain online, as long as they are not from American conservatives. If states created a private right of action, statutory standing and penalties, and attorney’s fees awards for successful plaintiffs, Big Tech would likely have to surrender.

Such statutes are not uncommon. California, for example, routinely passes privacy, employment, and other laws with similar enforcement mechanisms against international companies. And on the international scene, by way of further example, Poland is about to enact a law imposing significant fines (up to $2.2 million) for social media platforms [that] censor lawful speech.

Read the whole thing.

In Part Two, Powerline addresses potential legal difficulties in such an effort.

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.”). [emphasis in original]

Possible remedies the states could preemptively take are also briefly discussed, so read the whole thing.

 

 
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