Six state reps in North Dakota have opened a new front in the ongoing battle to fight censorious Big Tech. In a newly proposed bill, they’ve offered a possible means to allow users to sue social media and other online media giants for bad-faith censorship of ideas.
As Jack Phillips reports for The Epoch Times, the six state politicians are all Republicans.
The bill is called, HB 1144 “An Act to Permit Civil Actions Against Social Media Sites for Censoring Speech," and it attempts to allow the suits by utilizing a textual vulnerability in the infamous-in-some-circles “Section 230” of the 1996 Federal Online Communications Decency Act.
The vulnerability comes in Sub-Section C:
(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
Given that federal wording, which many Americans see as insulating all social media and online info platforms from civil liability should they block content, and which has been used by “Big Tech” as a means to censor political posts, the ND bill proposes:
If an interactive computer service provider restricts, censors or suppresses information that does not pertain to obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable subject matter, the interactive computer service provider is liable in a civil action for damages to the person whose speech is restricted, censored, or suppressed, and to any person who reasonably otherwise would have received the writing, speech, or publication…
Of course, some critics see this as quixotic, tilting at windmills, since, of course, Federal law supersedes state statute anytime the federal law is constitutional.
Attorney Akiva Cohen wrote on Twitter that the law ‘would immediately be deemed void as preempted by Section 230 [of the Communications Decency Act],’ because ‘federal law is supreme over state law where they conflict, and this would create an express conflict.’
But what Akiva misses is that Section 230 always had within it numerous slippery legal terms that the feds intentionally inserted to give themselves power, and one of them is the Section 230 term, “in good faith.”
While some might mistakenly pass over this term, assuming it’s up to the platform to say whether it’s operating “in good faith”, in reality, the phrase has remained a lever for federal “regulators” to claim that an online “platform provider” moderating user content was not operating in what the FEDS call “good faith.”
And this is precisely where the ND legislators are inserting their logical wedge. Their bill describes companies that could be sued as those viewed as “immune from civil liability", and amplifies, explaining the new use of “in good faith”:
Immune from civil liability in subsection 2 means an action by an interactive computer service provider:
a. Taken voluntarily 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, regardless whether the material is constitutionally protected; or
b. Taken to enable or make available to information content providers or others the technical means to restrict access to material described in subdivision a.
This means that HB1144 would allow “in good faith” to be determined by a jury in a state court of law. It's not that the sites are immune from SUITS if they are determined by the Federal Communications Commission (FCC)to be operating "in good faith", it's that they will be immune from LIABILITY if determined by a JURY to be operating in good faith. This is a fascinating take on the 1996 federal statute, which does not preclude suits on a state level, but only eliminates “liability” if “good faith” is determined. Section 230 does not specify who gets to determine that.
As a result, it’s possible that state-based suits, and even federal suits, could be initiated by aggrieved persons and that the Section 230 clause regarding “in good faith” can be, as these ND legislators propose, determined in court, not by a federal agency.
If a jury determines the corporation operated in good faith? No liability. If the jury determines the opposite? Then no liability PROTECTION, and the court can award damages.
For those who believe the Constitution is the “law of the land”, the First Amendment prohibits the US Congress from writing any law infringing on the right to free speech. As a result, the FCC is on very weak constitutional ground. But the Congress is granted the power to set up the court system above the state supreme courts and below the US Supreme Court. As a result, many mistakenly believed that Section 230 prevented liability suits against Big Tech from being brought in federal court.
As HB1144 indicates, this might not be the case.
An interesting development, which comes even as conservative, libertarian, and anti-authoritarian users migrate away from the websites that have been censoring them, and to sites that are in favor of the honest exchange of information.