Pam Geller Sues The US Gov't Because Facebook Blocked Her Page; Says CDA 230 Violates First Amendment

from the a-real-lawyer-filed-this? dept

Thu, Jul 14th 2016 8:30am — Mike Masnick

Well known anti-Muslim troll Pamela Geller has teamed up with a group called the American Freedom Law Center to file one of the dumbest lawsuits we've ever seen. There's so much wrong here it's difficult to know where to start. Here's the lawsuit itself, which is filed against US Attorney General Loretta Lynch, even though Geller's own story about the lawsuit falsely claims she's suing Facebook. She's not. She's suing the US government because Facebook relies on Section 230 of the CDA in taking down some of her pages, and she claims, ridiculously, that Section 230 of the Communications Decency Act violates the First Amendment. The lawsuit is wrong on so many levels it's not even funny. Let's start with this, though -- Geller has long positioned herself as an extreme supporter of the First Amendment. And yet, she's now suing the government over CDA 230, a law which has probably done more than any other to guarantee that the First Amendment works on the internet.

The lawsuit talks up the vast open and public forums of the internet, which is accurate, but then argues that because there's so much content online, Section 230 no longer applies.

Unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds.

And then it gets to the crux of her argument: that popular internet forums are so important, no one should ever be barred from using them:

Denying a person or organization access to these important social media forums based on the content and viewpoint of the person’s or organization’s speech on matters of public concern is an effective way of silencing or censoring speech and depriving the person or organization of political influence and business opportunities.

Due to the importance of social media to political, social, and commercial exchanges, the censorship at issue in this Complaint is an unmatched form of censorship.

Consequently, there is no basis for qualifying the level of First Amendment scrutiny that should be applied in this case.

Except, this is really, really confused. Section 230 does not enable censorship. A private company is free to deny service or moderate its own services as much as it wants. That's their right as a private company. This is not a Section 230 issue at all. Geller and her lawyers are hellishly confused. Yes, Section 230's (c)(2) includes a so-called good-samaritan clause that basically says that a site does not take on new liability for taking down content, but that's separate from the issue of deciding to moderate content at all. Facebook can take down your page whenever it wants and it's not a First Amendment issue because Facebook isn't the government. And Section 230 has nothing to do with this at all, other than actually encouraging Facebook to leave up more speech since it's not considered liable for its users' speech.

But Geller's lawyers don't seem to understand the law they're whining about.

Section 230 permits content- and viewpoint-based censorship of speech. By its own terms, § 230 permits Facebook, Twitter, and YouTube “to restrict access to or availability of material that [they] consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Except that's not what Section 230 does at all. Companies are already permitted to do that because they're private companies. All Section 230 says is that in removing content, that doesn't mean those companies suddenly have liability for other content that they left up. Geller and her lawyers simply don't understand what Section 230 does and says. And yet they're suing over it.

Section 230 confers broad powers of censorship, in the form of a “heckler’s veto,” upon Facebook, Twitter, and YouTube censors, who can censor constitutionally protected speech and engage in discriminatory business practices with impunity by virtue of this power conferred by the federal government.

Except it does no such thing. Actually, Section 230 frequently protects against the heckler's veto because it makes it clear that platforms don't have to do anything and they're still protected from liability. This is actually a stronger protection against a heckler's veto than basically every other country in the world, most of which have a DMCA-like "notice and takedown" system, which does lead to protected speech being deleted. Section 230 protects against that, and a very confused Geller and her lawyers get this backwards.

Section 230 is not tied to a specific category of speech that is generally proscribable (i.e., obscenity), nor does it provide any type of objective standard whatsoever. The statute does permit the restriction of obscenity, but it also permits censorship of speech that is “otherwise objectionable, whether or not such material is constitutionally protected.” 47 U.S.C. § 230(c)(2)(A). Further, the subjective “good faith” of the censor does not remedy the vagueness issue, it worsens it.

This is just further confusion. The lawsuit is arguing over an issue as if this is about the government censoring speech, rather than private companies moderating speech -- something they've always been able to do, and which itself is protected by the First Amendment.

This lawsuit is the legal equivalent of that idiot who claims that any company moderating content is violating the First Amendment. And to that, I've got an obligatory xkcd for you:

From there, she goes on to complain about Facebook, Twitter and YouTube all taking down some of her content for terms of service violations, and insisting that Section 230 is to blame (it's not) and that her free speech rights have been denied (they have not).

Section 230 of the CDA, facially and as applied, is a content- and viewpoint based restriction on speech in violation of the First Amendment.

Section 230 of the CDA, facially and as applied, is vague and overbroad and lacks any objective criteria for suppressing speech in violation of the First Amendment.

Section 230 of the CDA, facially and as applied, permits Facebook, Twitter, and YouTube to engage in government-sanctioned discrimination and censorship of free speech in violation of the First Amendment.

None of that is a remotely accurate description of Section 230. Not even close. Geller's blog post, which falsely claims she's suing Facebook, rather than the US government, then just is a long extended whine about the fact that Facebook takes down her content when she violates its terms. Now, we've been vocal critics of Facebook's willingness to silence content and it's almost arbitrary decision-making in determining what content is appropriate for Facebook and what is not, but we'd never suggest that Facebook doesn't have a legal right to make those decisions. To make a bizarre First Amendment argument here, trying to link Facebook to the government via the free speech protections of Section 230, is nonsensical. It's almost as if her lawyers didn't even realize the argument they're really trying to make (which would also be a non-starter), that Facebook, Twitter and YouTube are de facto public spaces, and thus went with the even more bat-shit crazy misinterpretation of Section 230.

As for her lawyers at the American Freedom Law Center (AFLC) they're just as confused in a blog post about the lawsuit:

Section 230 provides immunity from lawsuits to Facebook, Twitter, and YouTube, thereby permitting these social media giants to engage in government-sanctioned censorship and discriminatory business practices free from legal challenge.

It's not government sanctioned censorship. And the immunity it provides is just that these platforms don't lose their own protections against liability on the content they leave up just because they choose to take down some other content. Section 230 infers no special benefits to platforms to take down content. It just says that taking down content won't lose them other protections -- protections, I should remind you -- that help promote and protect free expression online.

While there have been some questionable CDA 230 rulings lately, this one is an easy one. It should be laughed out of court pretty quickly on the basis of "did you even read the law you're suing over?"

Gov-Uscourts-Dcd-180391-1-0 (PDF)Gov-Uscourts-Dcd-180391-1-0 (Text)

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Filed Under: first amendment, free speech, intermediary liability protections, loretta lynch, pam geller, section 230
Companies: facebook, google, twitter, youtube

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Vidiot (profile), 14 Jul 2016 @ 7:49am

Not the lawyer's fault
She may be nutty, but it's apparently a well-funded kind of nutty; and lawyers are often willing to sublimate their skepticism and work through that.
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That One Guy (profile), 14 Jul 2016 @ 8:39am

Re: Not the lawyer's fault
No, the lawyers still have blame on their shoulders as well, they should have taken one look at the complaint and told her flat out "That's not what the law says, you have absolutely no chance of winning in court using that argument and I won't be party to a case that's just going to make me look like an idiot who doesn't understand the law alongside you."
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Anonymous Coward, 14 Jul 2016 @ 8:57am

Amazing
Each year we see lawsuits that challenge the credulity of any normal person with a mild understanding of the law.

Each year we wonder how much further can this idiocy go.

It seems this year the answer to that question has already arrived.
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Berenerd (profile), 14 Jul 2016 @ 9:04am

I bet they go to church...in Westboro...and are Baptists...
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Bees!, 14 Jul 2016 @ 9:06am

Re: Re: Not the lawyer's fault
Exactly. Rule 11 of the Federal Rules of Civil Procedure require attorneys not to file frivolous law suits, especially if the lawyer knows that isn't what the law says.

If I were the AUSA assigned to handling this case, I'd send a terse safe harbor letter to her counsel with full intention on making good on the threat.
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MS, 14 Jul 2016 @ 9:09am

Love the Complaint
Page 7:

"The internet is so free and open that no federal regulation is necessary"

Page 8:

"There are only three websites that anyone ever visits, each of which should be closely regulated by California law"

Fantastic
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That One Guy (profile), 14 Jul 2016 @ 9:17am

I can't help but think that this is basically lashing out against the sites using the first law that came to mind, despite the fact that it doesn't actually say or do what she thinks it does.

Since 'They won't let me post anything I want if it violates the TOS' wouldn't likely get her very far in court, she's trying to drag in an unrelated law to give the complaint an appearance of validity, and only read enough of it to be able to spin it in an attempt to make it say something it doesn't.

Hopefully this gets laughed out of court pretty much immediately, as the potential damage if she managed to find a judge as nuts as she seems to be, and who's willing to buy the argument is huge.
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That One Guy (profile), 14 Jul 2016 @ 9:21am

Re: Love the Complaint
Translation: No regulation is necessary unless it's regulation that I agree with.
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I.T. Guy, 14 Jul 2016 @ 9:26am

Playing Devil's advocate, what they are trying to say is that these services have become a social necessity and first amendment protections should apply. I kind of agree. The means at which they are trying to go about it is absurd though. Even if you agree first amendment protections should apply, if I were a lawyer I would realize the mountain that would need to be climbed to make that a reality, and twisting 230 into something it's not isn't going to help.
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Norahc, 14 Jul 2016 @ 9:30am

Since when
Since when has it been a requirement to read or understand a law you are suing over? After all, hurt feelings trump any law that stands in your way.

/sarcasm
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Anonymous Coward, 14 Jul 2016 @ 9:43am

Re:
Playing Devil's advocate, what they are trying to say is that these services have become a social necessity and first amendment protections should apply. I kind of agree.

Why? All the first ammendment really says is the government will not stop somebody trying to spend their own money to get the message across. It does not offer any guarantee or requirement that anybody else will help them to get their message across, so if they have to buy their own printing press, or these days server, to publish their message, their first ammendment rights are still intact.
She, like so many other people with extremist views, wants the first ammendment to guarantee her an audence, and it does not do that.
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That Anonymous Coward (profile), 14 Jul 2016 @ 9:47am

I don't have the will to look but can someone please find quotes where she says we should block Muslims & other speech from the internet? You know shes done it, its just way more fun to highlight the hypocrisy.
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Oblate (profile), 14 Jul 2016 @ 10:01am

Poetic justice possible?
Well known anti-Muslim troll Pamela Geller has teamed up with a group called the American Freedom Law Center to file one of the dumbest lawsuits we've ever seen.

Ironic and fitting if this lawsuit is dismissed with prejudice.
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Anonymous Coward, 14 Jul 2016 @ 10:06am

Re: Poetic justice possible?
And an award of the defendents costs.
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Anonymous Coward, 14 Jul 2016 @ 10:08am

Re: Since when
Lawyers are just following the police example. Police get to make up whatever they "think" the law should be, even if said law doesn't exist, and then they can charge people on their made up law with no bad effects (perhaps a slap on the wrist, but more likely a "good faith" exception).

Lawyers just want to be able to sue over whatever they "think" the law should say, regardless of the actual law, case law, or accepted standards. Then they can just claim that they "thought" what they were suing over was really the law... some judges (who see enough police cases for "interfering with a police business model of fleecing citizens" may just accept their interpretation on good faith...
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Anonymous Coward, 14 Jul 2016 @ 10:23am

At what point does Facebook go too far?
Is anyone concerned with the fact that Facebook has enough power to censor what it does and does not like?

Facebook is quickly becoming THE communications tool of the internet. They are rapidly integrating themselves into other areas that require a Facebook account. Yes, they are a private company, but at what point do they exercise too much power?

Yes, you can quit using Facebook but then you run into the problem with not being able to communicate with other people. I am aware that someday everyone may move on from Facebook just like they did MySpace, but that isn't happening yet.

Remember when AT&T was "The Phone Company", before the Bell breakup in the early 80's If you wanted to call someone you had to deal with the phone company monopoly. Yes, you could disconnect your phone but then you couldn't talk to anyone.

Now imagine that AT&T would disconnect your phone because they don't like your politics. That would be unfair. In fact, it is illegal. However, because Facebook is a newer technology it is not bound by the same rules. The growth of the web is due to this freedom. But now it seems that Facebook is abusing it's power to start filtering the internet to what it wants you to believe.

I don't like government regulation of companies, especially internet companies. However, it really bothers me that Facebook has the power to decide what can be posted and what can't. If they were a small site it would not be a problem, but since they are big and getting bigger and more integrated with everything it is starting to become an issue. Facebook is not just a communications tool, but now is trying to influence and decide what people think.

No one on this site wants the government to decide which speech is good or bad. Why should Facebook have the power to do so when the government can't. Or, in other words, at what point does Facebook become as powerful and as abusive as the government in controlling communications.

To sum it up, when is a company too big and too powerful to protect a persons First Amendment rights? And when should a company be held to the same restrictions on controlling speech as the government?
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Anonymous Coward, 14 Jul 2016 @ 10:27am

Compare to storefront operations
Maybe she is comparing Facebook to storefront operations, such as bakeries, real estate companies, and mortgage companies.

Does discrimination in the form of disparate treatment and disparate impact apply to the internet?

Can you have "terms of service" on an internet operation and get around discrimination for goods or services offered over the internet, which traditionally have been the subject of discrimination of protected classes?

If equal voting, education, housing and mortgages are a "right" for protected classes, then why not social media?

Having multiple bakeries in one town doesn't let one private bakery off the hook when it comes to protected classes.

So you can't exclude customers from a private storefront bakery with terms of service, but you can exclude people from Facebook with Terms of Service, at the risk of having a "disparate impact" on protected classes? How do we know who this might affect at some time in the future?
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Gwiz (profile), 14 Jul 2016 @ 10:34am

Re:
Playing Devil's advocate, what they are trying to say is that these services have become a social necessity and first amendment protections should apply.

When you post something on Facebook you already have First Admentmed protection. The govenment cannot tell or force Facebook to remove your post as long as what you are saying is protected speech.

The First Amendment has never been about forcing anyone to provide a platform for your speech. Newspapers have always held the right not to publish your letter to editor if they choose not to. Kinko's has the right to refuse to copy your flyer if they do not like your message. I work in the sign industry and I can absolutely refuse to make a sign that I personally object to. The First Amendment only applies to the government suppressing speech, not private entities.
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Anonymous Coward, 14 Jul 2016 @ 10:53am

Re: At what point does Facebook go too far?
I think you misunderstand your first amendment rights
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Anonymous Coward, 14 Jul 2016 @ 10:55am

Re: Compare to storefront operations
Can I ask customers who are being obnoxious to leave, or will that violate their right to be an ass?
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Anonymous Coward, 14 Jul 2016 @ 10:56am

Re: Re: Not the lawyer's fault
Perhaps her lawyers thought that the money they receive from her will far out way any foolishness that they look from people with persuing this case.
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Anonymous Coward, 14 Jul 2016 @ 11:03am

Re: At what point does Facebook go too far?
Nothing you said is relevant.
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JoeCool (profile), 14 Jul 2016 @ 11:13am

Re: Re: Re: Not the lawyer's fault
Given the number of lawyers added to the pool each and every year, there are more than enough lawyers willing to do ANYTHING to make a buck to cover every crazy wishing to file a frivolous lawsuit. The current craziness in our courts is a direct result of the over-saturation of lawyers in the market. Rather than admit their law degree is worthless, they instead look for crazy schemes to pay off their student loans.
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Anonymous Coward, 14 Jul 2016 @ 11:13am

Re: Re: At what point does Facebook go too far?
So, let me get this straight:

Facebook is perfectly within its rights to restrict what speech is allowed on its service. People who complain are out of luck.

Facebook sucks because they were trying to build a private network in India and shut people out. People who complained about the abuse of Net Neutrality were right to do so.

Why is one right and the other not? It is censorship both ways.

Geller should have sued and claimed a Net Neutrality violation instead. TechDirt would have supported her 100%.

Yes, I know Net Neutrality does not apply here, but censorship is censorship.
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JoeCool (profile), 14 Jul 2016 @ 11:20am

Re: Compare to storefront operations
Having a stupid or controversial stance on an issue doesn't magically turn you into a protected minority. You sure as heck can kick someone out of your bakery for being an ass where you couldn't for being black. Don't confuse the two.
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Gwiz (profile), 14 Jul 2016 @ 11:22am

Re: Re:
Looking into this a little further, it could be argued that Facebook holds a monopoly in internet communication and could be forced to relay messages they disagree with the same way that Turner Broadcasting was forced to carry channels they objected to. (see Turner Broadcasting v. Federal Communications Commission, 512 U.S. 622 (1994)) Personally, I disagree with this argument - I don't even have a Facebook account and I am able to voice my opinions just fine on the internet.

Here is Eugene Volokh's take on companies refusing to help disseminate messages they disagree with:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/11/02/printing-businesss-right-no t-to-print-messages-it-doesnt-want-to-print/
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ECA (profile), 14 Jul 2016 @ 11:25am

A bit long winded today
LETS say it this way..

You are at another persons HOME..
THEY have the right to ASK you to LEAVE, quit saying certain things/ Doing what you are DOING..as long as you are AT THEIR HOME..

This is the SAME, with companies and Corps.

If you WANT to be a crazy person, IDIOT, WHAT EVER..you can do it AT YOUR HOME, or in a PUBLIC place or Discourse..AS LONG as you are NOT a Danger to ANYONE ELSE..

AND anyone ELSE, has the RIGHT to walk away, Listen to MP3, Music, and IGNORE YOU...PUBLIC OR PRIVATE..
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Anonymous Coward, 14 Jul 2016 @ 11:38am

Psst, hey Masnick, zip up your mouth, your politics are showing.

While you may find fault in Geller's attorney what laws they're citing and in how they're arguing it, the fact that Facebook can arbitrarily ban a person's Facebook account with little to no recourse, and then have that ban extend to sites like USA Today, which uses Facebook comments, really smacks of Facebook denying a person's freedom of speech far outside of Facebook's official pages... But add on top of that, the fact that what actions a person my engage in that Facebook chooses as a reason for banning that user are heavily influenced by governments both inside and outside of the US.

In a nutshell Facebook, it could be argued, is acting as an agent of the government in the nation which they wish to operate.
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Gwiz (profile), 14 Jul 2016 @ 11:45am

Re: Compare to storefront operations
Having multiple bakeries in one town doesn't let one private bakery off the hook when it comes to protected classes.

Don't confuse refusing service to someone with refusing to disseminate a message you disagree with.

As a purveyor of fine signage, I can refuse to print a "Gay Pride" sign because I disagree with the message. On the other hand, I cannot refuse to print a "No Parking" sign for someone just because they are homosexual.

(Just so you know, the above are just examples and I wouldn't actually refuse either because I personally don't give two shits about what other people do in the privacy of their own bedrooms.)
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Anonymous Coward, 14 Jul 2016 @ 11:54am

Net Neutrality double standards
What is the difference between Facebook blocking who it doesn't like and trying to build their own network in India?

There are other internet providers in India. Granted, they are more way more expensive, but no one would have been forced to use them. Yet TechDirt slammed Facebook for trying to create a low cost network that was completely under Facebook's control and would have crowded out anyone they didn't like. This was the right thing to do.

Now, Facebook is filtering who they don't like off their network. Yes, there are other ways of communicating but it is difficult, if not impossible, to get everyone you communicate with to switch to another provider. Look at how Google+ failed, and that was with Google behind it.

Facebook's ultimate goal is to try to have everyone use it's network and to control what it thinks people should know. I am not making this up, they have brazenly admitted this. They have admitted to filtering and promoting what they think is important.

What is the difference between what they tried to do in India and what they are doing now? They are trying to lock people out if they don't use Facebook the way Facebook wants you to. The end result is them still trying to control and restrict people's speech.
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Anonymous Coward, 14 Jul 2016 @ 12:23pm

Re: Net Neutrality double standards
The difference is: In India Facebook trying to start a service wherby they decided wcich sites and servicesa the users could access; while in this case they are simply refusing their service to a person, while leaving them the ability to use any other service on the Internet. This makes the two cases very different.
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Anonymous Coward, 14 Jul 2016 @ 12:29pm

Re: Amazing
Next Year is always around the corner...

Stay Tuned!!!
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Gwiz (profile), 14 Jul 2016 @ 12:31pm

Re: Re: Compare to storefront operations
I guess the examples I used above are not quite right.

Federal law does not prevent businesses from refusing service to customers based on sexual orientation. Neither does the state, county or municipality where my business is located. So I could actually refuse to serve someone based on their sexual preference, if I wanted to.

A better example:

I can refuse to print a "Black Lives Matter" sign because I disagree with the message. On the other hand, I cannot refuse to print a "No Parking" sign for someone just because they are black.

(Once again, I wouldn't actually refuse either of these customers)
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Anonymous Coward, 14 Jul 2016 @ 12:33pm

Re: Re: At what point does Facebook go too far?
We are well past the point of people not understanding their rights or any aspect of the Constitution.

If you name any amendment or article I can likely provide a recent example of it being broken by the Government, and illegal law written against it, a judge ruling against it or just flat out not understanding it, and a Citizen calling for it to be broken.
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Anarres (profile), 14 Jul 2016 @ 12:35pm

Re:
Playing Devil's advocate, what they are trying to say is that these services have become a social necessity and first amendment protections should apply. I kind of agree.

Yes. I was thinking just that while I was reading the article.

Who the person is or what speech is in question shouldn't matter much; the principle is the same for every speech Facebook doesn't like.

It is true that private companies can and should be able to offer their services to who respects their terms and not offer it to who doesn't; in the general case. However, in several cases of extremely popular providers one has to wonder, at which point do they become de facto public spaces?

That they're still privately owned doesn't change that they can become the "public squares" we go to. And whatever used to be public square becomes "the old park no one ever goes to anymore".

I don't know where the tipping point is. It seems to me worth considering seriously that it can be a tipping point /somewhere/.
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zboot (profile), 14 Jul 2016 @ 12:48pm

Re:
Hey advocate, can you describe another example of a "social necessity" that's currently provided by private companies but has the kind of first amendment protections claimed here?

Your advocacy attempts to make this into "this is an example of something else that's protected by the first amendment" but conveniently fails to explain what that other thing is...like I'll just take your word for it or something.
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Anonymous Coward, 14 Jul 2016 @ 12:48pm

Re: Re: Net Neutrality double standards
In both cases Facebook is still being the gatekeeper.

In the end there is no difference in blocking other sites and blocking someone from directly posting on Facebook. The end result is the content being blocked.

Small sites like TechDirt (compared to Facebook) don't have the ability to act as a gatekeeper to content that millions of people see. Facebook, by virtue of its size and number of people using it, is able to do so.

TechDirt is also a website that is focused on a particular subject. Facebook is marketing themselves as a mass communication tool.

At what point does a company get so big that they are not just restricting what they want but actually controlling it? When does a web site go from being a small site that posts peoples information and become a giant site engaged in mass communication? And when it does, should free speech be more protected than on a smaller site.
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seedeevee (profile), 14 Jul 2016 @ 12:49pm

Free Speech is Greater
Just so we are clear - free speech is a greater right - a human right - that transcends mere Government rights.

Private companies have the legal right to abridge your human rights.
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zboot (profile), 14 Jul 2016 @ 12:54pm

Re: At what point does Facebook go too far?
The only people concerned are those who apparently didn't know that Facebook *always* had this power. Since day one.

Facebook is not a phone company. If Facebook "disconnects" you, you can still communicate with your friends and family. You can still post things online in a forum you completely control with the same level of effort you spent creating your Facebook account.

Even phone companies today are not the Bells of yesteryear. If AT&T blacklists me, I can use T-Mobile, or Sprint, or Verizon. It's not like I'd be completely cut out from being able to communicate with anyone.

Your analogy does not apply.
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Anonymous Coward, 14 Jul 2016 @ 12:55pm

Re: Re: Re: Net Neutrality double standards
Are you happy with facebook removing paccounts that are related to ISIS?
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Anarres (profile), 14 Jul 2016 @ 1:00pm

Re: Re: Re:
From the linked article:
[blockquote][i]The Supreme Court has held that large organizations, such as cable operators or universities, might be required to convey messages on behalf of other organizations with which they disagree. But Hands On Originals is a small owner-operated company, in which the owners are necessarily closely connected to the speech that Hands On Originals produces. In this respect, the owners of Hands On Originals are much closer to the Maynards in Wooley v. Maynard, whose “individual freedom of mind,” 430 U.S. at 714, secured the right not to help distribute speech of which they disapproved.[i][/blockquote]

Well, does Facebook qualify more as "small owner-operated company, in which the owners are necessarily closely connected to the speech" or "large organization"?
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Anarres (profile), 14 Jul 2016 @ 1:24pm

Re: Re: Another example
I'm not sure who you were talking to, but I can give an example I had in the past.

In 2013, Goodreads site was already a worldwide well known reviews platform, which had advertised itself as a "site for readers" exclusively. It had made many public statements interpreted like: it'd never remove readers' opinions (unless illegal, i.e. "obscene, defamatory" etc). It kept its promise until 2013.

In 2013 Amazon bought it. In the first months, Amazon changed reviews policy, and removed reviews that were criticizing the author, rather than the contents of the book. Before you think that's totally okay, consider one example: reviews of a chidren's book whose author was a convicted pedophile. People were writing reviews in warning to their friends and the public, saying that the author of this CHILDREN book is a convicted pedophile, and they refuse to ever buy it.
Amazon removed such information.

What we had there was a case that should have never happened IMO: a major bookseller like Amazon shouldn't have bought a fully-reader oriented reviews website like Goodreads. But it did. Today most of the reviews licensed and displayed by major booksellers like Google Books and Amazon (...) come from ... Goodreads and Amazon. The overwhelming majority.

Those reviews revealing the convicted pedophile may still live on reviewer's blog, but they don't have anymore the visibility they used to. People may still have a voice, but when Amazon doesn't like it, that voice will be hardly heard.

I don't know if Amazon should have been forced to keep reviews that weren't illegal (nor immoral!). I know it didn't sound right to me at the time, although I didn't go as far as say that it "must" keep them.
But I think the concern is warranted: the more major websites become virtually "the" place to go for something (i.e. user reviews), the more it looks like them usurping the public square. Since it's private though, there's nothing we can do about it. Or is there?
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Anonymous Coward, 14 Jul 2016 @ 1:36pm

Re: Re: Re: Re: Net Neutrality double standards
As far as I know Geller isn't trying to get anyone to commit terrorism.
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Gwiz (profile), 14 Jul 2016 @ 1:39pm

Re: Re: Re: Re:
Well, does Facebook qualify more as "small owner-operated company, in which the owners are necessarily closely connected to the speech" or "large organization"?

I would definitely consider Facebook "large organization", but that wasn't the only criteria that decided Turner v FCC. Also note that Volokh qualifies his statement with "might be required to".

AFAIK only a couple cases have forced private companies to disseminate messages that they might disagree with, that being cable companies and universities. In both of those the court determined they had some degree of "monopolistic opportunity to shut out some speakers". I don't believe that Facebook has reached that bar when it comes to disseminating speech on the internet.
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Anonymous Coward, 14 Jul 2016 @ 1:43pm

Re: Re: Re: At what point does Facebook go too far?
You're clearly confused.
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Anonymous Coward, 14 Jul 2016 @ 1:43pm

Re: Re: Re: Re: At what point does Facebook go too far?
(Probably intentionally, of course)
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Anonymous Coward, 14 Jul 2016 @ 1:44pm

Re:
You can argue that all you want. It won't make your argument any less stupid.
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Anonymous Coward, 14 Jul 2016 @ 1:44pm

Re: Net Neutrality double standards
Oh give it up lol.
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Anonymous Coward, 14 Jul 2016 @ 1:58pm

Pam Geller is an idiot. That's like suing the U.S. Government over the second amendment because someone used a gun to shoot your family.

:rotfl:
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Anonymous Coward, 14 Jul 2016 @ 2:00pm

Re: Re: Re: Re: Re: Net Neutrality double standards
In essence yoy are saying extremism that you disgree with can be removed from facebook, but extremism that you agree with should be kept up. Hint, extremist views are likely to lead to violence, whether they call for it explicitl or not.
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Anarres (profile), 14 Jul 2016 @ 2:21pm

Re: Re: Re: Re: Re:
That makes sense. I don't know the cases, I should review them. Thanks for the followup and info!

I'd just add that, as a website administrator, I would find unworkable some regulation to require me to keep random posts up, or accounts active, at the expense of my resources and of the kind of community I want to offer a service to. Unless I freely contracted to, of course. But that's on the "small company" extreme.

I'm not so sure when we're talking about spaces that almost have a monopoly over avenues of communication such that, if you want to know something, you go there or most of the time there. That said, I'm halfway through this complaint, and their argument makes no sense...
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Anonymous Coward, 14 Jul 2016 @ 2:36pm

Re: Re:
You can argue it's stupid all you like, but that doesn't make you intelligent.
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Anarres (profile), 14 Jul 2016 @ 2:40pm

Re:
"Heavily influenced" doesn't make it an agent.

And how you prove "heavy influence", or what does it even mean?
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DSG72 (profile), 14 Jul 2016 @ 2:46pm

Re: Re: Re: Not the lawyer's fault
FYI -- there is no such thing as a "safe harbor letter" under Rule 11. Rather, FRCP 11(c)(2) requires you to actually prepare a motion for sanctions and serve it on the opposing counsel. You must then wait 21 days to see if the violator fixes the issue. If they don't, then you can file the motion.

However, I think the courts have largely abandoned Rule 11 -- judges simply do not enforce it except in the rarest of cases. As a result, lawyers have decided there's little to no risk of filing junk lawsuits, which is why we are seeing more and more of them each year.

At the end of the day, judges must follow the rules, and they must punish lawyers who don't. Because that's not happening, the legal profession remains largely a joke.
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Norahc, 14 Jul 2016 @ 3:01pm

Re: Free Speech is Greater
Let's be real clear then...governments don't have rights, they have powers. Rights are reserved for the people governed.
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John Fenderson (profile), 14 Jul 2016 @ 3:05pm

Re:
"what they are trying to say is that these services have become a social necessity and first amendment protections should apply."

Saying that social media generally, and Facebook in particular, has become a "social necessity" is more than a small stretch. After all, it's still true that nearly half of the US population doesn't use social media at all.
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howardappel (profile), 14 Jul 2016 @ 4:00pm

Pam Geller
I am new to TechDirt, but love it so far I think you are being too generous to Ms Geller. IMHO, she is a worthless, racist, bigoted waste of electrons, proteins and everything else. She is evil personified. As to her lawsuit, she is also a massive hypocrite, as she routinely bans commenters on her blog and removes or edits the comments that aren't banned. Pot, meet kettle.
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Anarres (profile), 14 Jul 2016 @ 4:03pm

Why section 230?
OK, I finally finished the complaint, after many breaks and bewilderment. I'm left with only one question: why do the plaintiffs pick on section 230?
It has nothing to do with Geller's complaints. If she feels she should be entitled to publish certain materials on FB despite FB not wanting her to, then killing section 230 would only make sure she won't be able to publish on FB much MORE materials than those.

For example, she says:
By its own terms, § 230 permits Facebook, Twitter, and YouTube “to restrict access to or availability of material that [they] consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

No, it doesn't. There are other laws that restrict some of those, and there's one more: freedom of speech. FB, Twitter and YT rely on their freedom to publish speech they want to transmit to third parties.

Or this:
Section 230 permits Facebook, Twitter, and YouTube to engage in government-sanctioned discrimination and censorship of free speech.

No, it doesn't. Freedom of speech enables an actor other than government to choose who they allow in their house and/or what speech they spend resources to communicate further to others.

Geller's argument is that section 230 created the right of FB to remove messages from their platform. No, it didn't, FB already had that right. Section 230 made it so that engaging in it, on the internet, doesn't make them responsible for the speech they keep online.

Otherwise they would be responsible for the speech they keep online, and then, they would surely get a powerful incentive to reject ANY problematic or potentially problematic or remotely not in agreement with their view. They would likely remove any speech that they're not willing to stand for, themselves. It would result in LESS speech being accepted, not, as Geller seems to imagine, in more.
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Anonymous Coward, 14 Jul 2016 @ 4:51pm

Re: Re: Re: At what point does Facebook go too far?
Nice apples and oranges comparison over there, not relavent to to the conversation, but still nice.
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Anonymous Coward, 14 Jul 2016 @ 4:53pm

Re:
I always love the clowns who start off with a lame "insult" and then expect to be taken seriously.
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Anonymous Coward, 14 Jul 2016 @ 5:54pm

Re: Re: Re: Re: Net Neutrality double standards
Facebook is being sued for "knowingly provided material support and resources to Hamas ... facilitat(ing) this terrorist group's ability to communicate, recruit members, plan and carry out attacks, and strike fear in its enemies"

http://www.reuters.com/article/us-israel-palestinians-facebook-idUSKCN0ZR1G0
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Anonymous Coward, 14 Jul 2016 @ 5:57pm

Re: Re: Re: Re: Re: Re: Net Neutrality double standards
"extremist views are likely to lead to violence"

Do you have anything that backs this up or did you pull it out of thin air?

The Amish are pretty extreme in their rejection of technology and our modern world. Can't recall the last time I saw one on a killing spree.
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Eldakka (profile), 14 Jul 2016 @ 8:00pm

Re:
Playing Devil's advocate, what they are trying to say is that these services have become a social necessity and first amendment protections should apply. I kind of agree.
I disagree.

Faceboook is not a social necessity.

Facebook is basically a big social club, a REALLY big social club, but just a club nonetheless. It'd be like saying that the YMCA is a social necessity, therefore they have to allow you to post anything (that isn't illegal) on their bulletin boards.

The Internet is a social necessity. Many of the proocols that are used on it, SMTP, HTTP/S, TCP/IP, SIP, are necessities. For example, email (SMTP) is a necessity. Interfering with email, deleting email messages in transit passing through your mail relay would be actionable under this theory (it's a necessity so first amendment protections apply). However, providing a particular email SERVICE, e.g. gmail.com, outlook.com, other free email providers, is not a necessity.

If Facebook disappeared, then we'd just go back to Bulletin Boards or maillists. I mean, Facebook is basically just a glorified BB service/portal that's been hacked by spammers to spam you with unwanted advertising.
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orbitalinsertion (profile), 14 Jul 2016 @ 8:31pm

Re: Re: Love the Complaint
That's exactly how her "extreme support of the First Amendment" operates.
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orbitalinsertion (profile), 14 Jul 2016 @ 8:42pm

Re: Compare to storefront operations
There are no protected classes, nor a concerted effort to deny access to protected classes involved.
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orbitalinsertion (profile), 14 Jul 2016 @ 8:58pm

Re:
Kudos on the opening statement. So full of win.

Facebook sucks. It doesn't make the vague assertion that you want to re-word for Geller any more correct. It doesn't matter where one's politics reside (except for the stance on what constitutes government-protected speech), FB shuts articles and accounts down, and almost arbitrarily, sometime outright unfairly silencing one party and not another who posted the same "objectionable" content. This doesn't make it the government's problem.

What is really most entertaining for me, though, is the phenomenon of people "re-stating" the position of some thought-leader in attempt to make it less idiotic. In this case it's an absolute hoot because it was originally filed in legalese. I heartily suggest anyone in this position find a new icon, when said icon iz doin it rong.
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orbitalinsertion (profile), 14 Jul 2016 @ 8:59pm

Re: Re: Re: Net Neutrality double standards
The difference is restricting the entire network.
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techflaws (profile), 14 Jul 2016 @ 10:05pm

This lawsuit is the legal equivalent of that idiot who claims that any company moderating content is violating the First Amendment.

Like whatever?
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Mike Masnick (profile), 15 Jul 2016 @ 12:04am

Re:
Psst, hey Masnick, zip up your mouth, your politics are showing.

They're not actually. Your insult, however, suggests yours are.

While you may find fault in Geller's attorney what laws they're citing and in how they're arguing it, the fact that Facebook can arbitrarily ban a person's Facebook account with little to no recourse, and then have that ban extend to sites like USA Today, which uses Facebook comments, really smacks of Facebook denying a person's freedom of speech far outside of Facebook's official pages...

A person's freedom of speech is only vis a vis the government. Not a private company. So, no. You're wrong. Really wrong.

But add on top of that, the fact that what actions a person my engage in that Facebook chooses as a reason for banning that user are heavily influenced by governments both inside and outside of the US.

Doesn't matter. You're wrong. The First Amendment is not an issue here. Section 230 is not an issue here. Facebook has every right to take down whatever content it wants.

You may not like it. I *DON'T* like that Facebook is so arbitrary about what it pulls down -- as has been detailed on these very pages many times. But it has every right to do so, and Geller's lawsuit is incredibly dumb.
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Mike Masnick (profile), 15 Jul 2016 @ 12:08am

Re: Net Neutrality double standards
What is the difference between Facebook blocking who it doesn't like and trying to build their own network in India?

There's a big difference in internet *access* services, and internet *hosting* services, where anyone can host their content elsewhere.

Access services are regulated for good reasons. Hosting is not.

Now, Facebook is filtering who they don't like off their network. Yes, there are other ways of communicating but it is difficult, if not impossible, to get everyone you communicate with to switch to another provider. Look at how Google+ failed, and that was with Google behind it.

You're confusing a number of different issues. Again you need to separate out internet access from other kinds of service, and that's because your options for internet access are massively limited and if you can't get basic internet access, you lose out on a ton of services. If you can't access Facebook, what do you really lose out on?

What is the difference between what they tried to do in India and what they are doing now? They are trying to lock people out if they don't use Facebook the way Facebook wants you to. The end result is them still trying to control and restrict people's speech.

With zero rating, they were setting up a system whereby they only allow access to certain companies. That unfairly balances the internet towards certain companies. That's not what they're doing when they remove content ON THEIR OWN SERVERS that violate their terms of service.
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Wendy Cockcroft, 15 Jul 2016 @ 7:25am

Re: Re: Re: Re: Not the lawyer's fault
When you are worth what the market says you're worth you have to convince the market that you're worth something.
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Wendy Cockcroft, 15 Jul 2016 @ 7:28am

Re: Since when
It's worse than that; she's an SJW in denial claiming micro-aggression, etc.

Hey, Geller: nobody owes you a platform; you have the right to speech, not to be heard.
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Wendy Cockcroft, 15 Jul 2016 @ 7:29am

Re: Re: Compare to storefront operations
^This. A thousand times this.
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Anonymous Coward, 15 Jul 2016 @ 11:21am

Re: Re: Net Neutrality double standards
So, what is the difference between Apple censoring what goes in their app store and Facebook deciding who is allowed to post?

There are several articles on TechDirt about how Apple's app store censorship is bad and they should not be trying to police morality and that it is counter-productive. Now, however, you are fine with Facebook deciding who can be on Facebook's network and who can't.

What's the difference? Yes, both Apple and Facebook own their servers and networks, but why is one bad and the other not?

As posted in the article:
https://www.techdirt.com/blog/wireless/articles/20130122/20232421758/inanny-apple-takes-down -popular-photo-apps-because-they-made-searching-nude-photos-too-easy.shtml

"Apple's arbitrary decisions on apps like this and the ones listed above make it harder and harder to respect its position as a self-appointed moral guardian of all things i-related. Its lack of communication and questionable tactics seem to be the unfortunate byproduct of its position as the most desirable market."

(I know you didn't write the article, but the same argument is made in all the other app store articles)

Facebook is doing the same thing that Apple is. It is deciding what can and can't be put on their network according to what they believe, and just arbitrarily deleting accounts if they have a viewpoint vastly different than what Facebook believes.

The problem that Facebook has is that it is marketing itself as a social media platform to communicate with others on the internet and then arbitrarily banning those they don't like without rhyme or reason. In other words, Facebook is using the same inconsistent banning policies.

Why is Apple bad for censoring what they don't like but it's ok for Facebook to do so? Censorship is censorship.

And the argument that people can just move to some other social media platform doesn't apply. If I move to Google+ it does me no good if I can't communicate with all the people on Facebook, since it is a "Walled Garden"
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Anonymous Coward, 15 Jul 2016 @ 11:21am

Re: Re: Net Neutrality double standards
So, what is the difference between Apple censoring what goes in their app store and Facebook deciding who is allowed to post?

There are several articles on TechDirt about how Apple's app store censorship is bad and they should not be trying to police morality and that it is counter-productive. Now, however, you are fine with Facebook deciding who can be on Facebook's network and who can't.

What's the difference? Yes, both Apple and Facebook own their servers and networks, but why is one bad and the other not?

As posted in the article:
https://www.techdirt.com/blog/wireless/articles/20130122/20232421758/inanny-apple-takes-down -popular-photo-apps-because-they-made-searching-nude-photos-too-easy.shtml

"Apple's arbitrary decisions on apps like this and the ones listed above make it harder and harder to respect its position as a self-appointed moral guardian of all things i-related. Its lack of communication and questionable tactics seem to be the unfortunate byproduct of its position as the most desirable market."

(I know you didn't write the article, but the same argument is made in all the other app store articles)

Facebook is doing the same thing that Apple is. It is deciding what can and can't be put on their network according to what they believe, and just arbitrarily deleting accounts if they have a viewpoint vastly different than what Facebook believes.

The problem that Facebook has is that it is marketing itself as a social media platform to communicate with others on the internet and then arbitrarily banning those they don't like without rhyme or reason. In other words, Facebook is using the same inconsistent banning policies.

Why is Apple bad for censoring what they don't like but it's ok for Facebook to do so? Censorship is censorship.

And the argument that people can just move to some other social media platform doesn't apply. If I move to Google+ it does me no good if I can't communicate with all the people on Facebook, since it is a "Walled Garden"
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Anonymous Coward, 15 Jul 2016 @ 11:57am

Re: Re:
Masnick will defend Lord Zuck to the ends of the earth.
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Gwiz (profile), 15 Jul 2016 @ 12:06pm

Re: Re: Re: Net Neutrality double standards
What's the difference? Yes, both Apple and Facebook own their servers and networks, but why is one bad and the other not?

Techdirt has called out BOTH companies at different times for enforcing their own arbitrary morality rules on speech. Here are some directed at Facebook:

https://www.techdirt.com/articles/20160615/17331334722/facebook-still-deleting-non-offensiv e-posts-being-offensive.shtml
https://www.techdirt.com/articles/20160216/06342933609/puritanical-face book-censors-parody-publication-makes-appeal-process-threat.shtml
https://www.techdirt.com/articles/2 0160606/05432734633/facebook-is-flagging-banning-accounts-posting-admittedly-strange-childrens-book- illustration.shtml

Calling out companies that ridiculously censor speech on their own platforms is not the same thing as saying those companies shouldn't have the right to control what is published on their platforms. You are missing the nuances here.
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John Fenderson (profile), 16 Jul 2016 @ 7:33am

Re: Free Speech is Greater
"Private companies have the legal right to abridge your human rights."

Private companies have the right to restrict speech on their private platforms. Just as you have the human right to restrict speech within your own home.

The balance to that is the you have the right to not use a private company's platform, and people have the right to not come into your house.
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Anonymous Coward, 17 Jul 2016 @ 6:19am

Keep relying on monopoly corporations for your needs. You deserve it.
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Anonymous Coward, 17 Jul 2016 @ 9:53am

"Keep relying on monopoly corporations for your needs. You deserve it."

In the end Facebook is just another corporation looking to profit.
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