By Jason Fyk, Nov 18, 2022 | Original The Federalist article here
The Fourth Circuit Court of Appeals just fixed 230(c)(1), creating a conflict with the Ninth Circuit Court. Will the Supreme Court finally address the breadth of Big Tech immunity?
On Nov. 3, the Fourth Circuit Court of Appeals rendered a decision in Henderson v. Private Data that could revolutionize the internet, concluding that Section 230 of the Communications Decency Act does not immunize “all” online publication decisions. The Fourth Circuit Court just determined Section 230(c)(1) no longer protects a service provider when it acts upon third-party content (i.e., as a secondary publisher or content provider), especially if those substantive contributions are unlawful.
We now have the conflicting circuit court precedents in the Fourth and Ninth Circuits. The Supreme Court needs to consider the Fourth Circuit’s arguments and address this split between the circuits.
- Section 230(c)(1) is untenable “as applied”
- Section 230(c)(1) is unconstitutional “on its face.”
Prior to the Fourth Circuit Court’s Henderson decision, most courts, relying on longstanding precedent like Zeran v. AOL inc., wrongly believed that Section (c)(1), not 230(c)(2), “shields from liability all publication decisions, whether to edit, to remove, or to post, with respect to content generated entirely by third parties.” This statement, taken out of context, is wrong.
Courts have consistently misapplied 230(c)(1)’s protection to content moderation decisions more fitting the 230(c)(2) paradigm. Section 230(c)(1) was read and applied so broadly that 230(c)(1) became absolute sovereignty and 230(c)(2) became redundant protection.
Under such reasoning, the California courts came to the arbitrary conclusion that I was treating Facebook as “a publisher” of my own content, and that their “content development” actions (i.e., substantive contributions) did not rise to the arbitrary level of an “information content provider.” They dismissed my case without truly considering my argument.
The CDA Can’t Protect All Publication Decisions
Over the past 51 months, my attorneys, Jeff Greyber and Constance Yu, and I have been arguing that 230(c)(1) cannot logically immunize “all publication decisions.” In fact, we argued Section 230(c)(1) cannot logically apply to any active content moderation decisions. However, we have not had much success convincing the courts that their longstanding precedent is fatally flawed.
Mere days before we petitioned the Supreme Court, things took a strange turn. Another Ninth Circuit case, Enigma vs. Malwarebytes, concluded the “Good Samaritan” general provision of the CDA located in Section 230(c), does not immunize anticompetitive content blocking. Anticompetitive blocking was the exact cause of action I had advanced in the California courts. My result, however, was different than Enigma’s.
We hit a unique crossroads. Do we go back to the Northern District of California (NDCA) to argue the Enigma panel conflict and forgo our eminent Supreme Court filing, or do we press ahead, include Enigma in our Petition for Writ of Certiorari, and argue it in the Supreme Court? Since our petition was essentially ready to file, it made far more sense to go forward rather than backward.
Unfortunately, the Supreme Court declined to take up our case, likely because the conflicting decisions were within the same circuit court. It seems we were a little ahead of our time, as now the conflict is between circuits as well, with the Fourth Circuit’s November decision.
A Constitutional Challenge to Section 230
We also began working on a Constitutional Challenge of Section 230 and a motion 60(b) for the NDCA to overturn my original incorrect judgment. It took roughly two and a half months to file our motion 60(b), and a little over a year to file our constitutional challenge.
Seven months after filing motion 60(b), the district judge (who had retired) rendered a cursory two-page dismissal stating: “The Order that Fyk seeks to vacate based its conclusion on 47 U.S.C. 230(c)(1). By contrast, the Ninth Circuit’s Enigma opinion did not involve the application of 230(c)(1); instead, the court examined 230(c)(2)” (citations omitted).
In other words, the judge essentially said, ignore the typical canons of statutory construction, like reading a statute as a whole text or harmoniously, and just consider 230(c)(1) as a completely separate statute, exclusive of 230(c)(2). He essentially said Section 230(c)’s “Good Samaritan” “general provision” (i.e., formally known as an “Intelligible Principle”), does not apply “generally” to the whole statute. Absolutely bizarre!
We thought we might have a little more luck with the Ninth Circuit Court, because a circuit court “should” be inclined to fix its own conflicting decisions. We appealed to the Ninth Circuit Court calling into question whether Section 230’s “general provision” applies “generally” or whether it only applies exclusively to 230(c)(2). Conversely, we also argued, if the general provision is not somehow the statute’s “intelligible principle,” the statute (per Jarkesy v. SEC) is unconstitutional on its face. It was a catch-22 argument. Either way, my case should have surpassed dismissal.
Rather than grant me justice, the Ninth Circuit Court dismissed my case yet again, erroneously claiming we did not file in the NDCA within a “reasonable time,” even though neither Facebook nor the NDCA court ever mentioned “timeliness.” Thinking the Ninth Circuit must have missed something in our timeline, we filed a motion for reconsideration on Nov. 2. Almost as if by divine intervention, the very next day, a decision came down that would change everything.
A Decision that Could Change Everything
On Nov. 3, after more than two decades of confusion, the Fourth Circuit Court finally clarified the proper interpretation and application of its own 1997 decision in Zeran v. AOL Inc. They correctly held CDA’s 230(c)(1) does not stretch (i.e., read within context) to include “actions” such as content moderation that exceed basic formatting or procedural publishing functions (i.e., passive hosting functions).
Simply put, 230(c)(1) only applies to passive hosting, not content moderation. Big Tech’s glass house has finally cracked! Section 230(c)(1) “is not license to do whatever one wants online.”
To be clear, 230(c)(1) does not immunize “all publishing decisions.” “Formatting or procedural functions” are not “active” publishing decisions. They are the passive service functions of a publishing service, not the active publishing function of an Information Content Provider.
The Fourth Circuit Court distinguished between the two types of publishing functions: passive procedural/service functionality, and active publishing/content moderation functionality. In other words, put simply, 230(c)(1) does not apply to a service provider’s publishing decisions — content moderation.
When Big Tech Becomes a Publisher
The Fourth Circuit Court went on to say: “An interactive service provider becomes an information content provider whenever their actions cross the line into substantively altering the content at issue in ways that make it unlawful.”
Because the Fourth Circuit took the time and care to consider Section 230 “de novo,” something the Ninth Circuit failed to do in my case, Section 230(c)(1) should no longer misapply to the service provider’s own “substantive alteration” or content moderation actions. In other words, the provider or user can, in fact, be treated as “a publisher” for their own actions, but they cannot be treated as “the publisher” for the publishing actions of another. The Fourth Circuit just fixed 230(c)(1), and in doing so, created a conflict with the Ninth Circuit Court.
We could not have made it any clearer to the court, we were not treating Facebook as “the publisher” (i.e., as Fyk), we were treating Facebook as Facebook for its own substantive unlawful alterations, such as unpublishing, soliciting a high-paying owner, and republishing the exact same content.
In fact, the Fourth Circuit Court went a step further, clarifying 230(c)(1) does not apply when there is no content at issue, which was plainly stated in Fyk v. Facebook, “this case is not about content.” The provider or user cannot logically be “cast” (i.e., treated) as someone else, for someone else’s offensive content, if there is no content at issue.
Heading Back to the Supreme Court
It was no surprise to learn the Ninth Circuit Court denied our motion for reconsideration yet again, but not before we “timely” filed the Henderson decision as supplemental authority that contradicts the Ninth Circuit’s interpretation of 230(c)(1). I now have a circuit court conflict as I head back to the Supreme Court.
Recall the Supreme Court maxim: “[W]e hold the general rule to be that, where a federal court of Appeals sua sponte recalls its mandate to revisit the merits of an earlier decision denying [constitutionally protected] relief to a [punished party], the court abuses its discretion unless it acts to avoid a miscarriage of justice as defined by our [constitutional] jurisprudence.”
Recently, the Supreme Court decided to take up two Section 230 cases. We hope that they might also consider our imminent petition because what the California courts have done here is a willful disregard for justice and a blatant violation of their oath to uphold the Constitution. We formally notified the California courts that in denying me all remedy was to deny me of my rights, yet they did it anyhow. Remember, “To take away all remedy for the enforcement of a right is to take away the right itself.”
We respectfully submit that the Supreme Court should reconsider our previous petition, and if the Supreme Court wants a true comprehensive analysis of Section 230, it should also consider our constitutional challenge.