Court Dismisses Anti-Muslim Troll Pam Geller's Lawsuit Against The DOJ For Facebook's Moderating Actions

from the sue-better,-dumbass dept

Anti-Muslim troll and self-proclaimed First Amendment warrior Pam Geller's stupid lawsuit against the DOJ for social media companies' removal of her Islamophobic posts has reached an end (if only temporarily). DC District Court Judge James Boasberg's decision pretty much aligns with the DOJ's motion to dismiss: in short, Geller is wrong about Section 230, wrong about the DOJ's "enforcement" of this affirmative defense, and not even close to targeting the right entity(ies) in her lawsuit. (via Eric Goldman)

A very short recap: Geller routinely posted anti-Mulism content to social media platforms. These platforms would take her posts down and occasionally suspend her accounts. Geller felt this was censorship (it isn't) so she sued not Facebook, not Twitter, not any other social media service but the federal government. In her view Section 230 of the CDA is not a defense, but an excuse for social media platforms to remove her dubious contributions. What Geller ignores is that Section 230 is likely the only reason her posts stay live at any platform for any length of time, simply because it shields Facebook et al from being held civilly liable for content created by users.

Boasberg's opinion [PDF] only runs 11 pages but it's more than enough to dispense with Geller's ridiculous legal arguments. He gets right to the crux of the issue in the first paragraph.

Facebook, YouTube, and Twitter may be host to a mélange of cat videos, musings from long-lost cousins, and odes to Beyoncé, but not all content is welcome on these social-media platforms. Pursuant to their private terms of service, the companies have repeatedly taken down some of Plaintiffs’ posts criticizing Islam. Plaintiffs — two non-profit organizations and their leaders — allege that such action constitutes censorship and discrimination on the basis of content, viewpoint, and religion. Yet a quick glance at this case’s caption reveals a surprise: Plaintiffs have not named the companies as Defendants. Instead, they have sued only the United States Attorney General, alleging that a provision in a federal statute — § 230 of the Communications Decency Act — enables the companies’ censorship and discrimination and violates the First Amendment.

And nails this point home again and again.

These and other actions led Plaintiffs to conclude that Facebook, YouTube, and Twitter employ their company policies to suppress the speech and activities of disfavored speakers, including Plaintiffs, and to discriminate against “certain political parties, national origins, and religions,” particularly Israelis, Jews, and conservatives. Yet Plaintiffs have not brought this suit against the social-media companies. Instead, in July 2016, they named the United States Attorney General as the lone Defendant.

The court also addresses Geller's convoluted argument that the DOJ -- via Section 230 of the CDA -- is somehow responsible for content moderation efforts performed by Facebook and others.

[Section 230] does not grant the Attorney General any power to impose criminal or civil liability, nor to direct or forbid interactive computer services to take any particular action vis-à-vis third-party users, including deleting objectionable content. Indeed, § 230 affords Defendant no role — enforcement or otherwise — of any kind, nor does it delegate any enforcement role to any federal agency or federal official.

This brings it back to a question of standing: Geller and her co-plaintiffs have none. The attorney general has no power to enforce Section 230. Even if the court were to grant Geller standing and find her arguments actionable, the remedy Geller seeks would have zero effect on the actions she's suing over.

It would not constrain Facebook, Twitter, or YouTube from invoking § 230 as a defense to any state-law discrimination or censorship action brought against them by Plaintiffs, nor would it restore Plaintiffs’ removed content or legally prevent the social-media platforms from deleting or otherwise editing Plaintiffs’ content in the future.

And the court isn't interested in handing down orders based on Geller's theoretic extrapolations.

Plaintiffs’ argument rests on the entirely speculative implication that Facebook, Twitter, and YouTube would voluntarily change course and permit Plaintiffs’ censored content to stand were the Attorney General to declare § 230 unconstitutional. Indeed, even absent the affirmative defense supplied by § 230, the private social-media companies could argue that they cannot be compelled to publish a particular message.

Which brings this all back to the original -- and strongest -- point of this decision: lawsuits are generally more successful when they target the right defendants. [emphasis in the original]

If Plaintiffs remain unhappy with the companies’ content decisions, they can sue them and attempt to defeat any § 230 defense that is raised — e.g., by invoking the same constitutional arguments offered here.

Section 230 has been under attack recently and courts have, unfortunately, been humoring some novel legal theories. Fortunately, Geller's legal theories are far too novel to be entertained by this court. Sure, it's an attack on Section 230 protections, but only in the most abstract definition of the word. Geller's case never had a chance, and she seems -- at least to date -- unwilling to go directly at the social media platforms she feels have wronged her. But she's free to spend her money fighting pointless legal battles, just like an other US citizen.

Filed Under: cda 230, doj, pam geller, section 230
Companies: facebook, twitter

Pam Geller Doubles Down On Claims That Facebook Removing Her Posts Is Section 230-Enabled 'Government Censorship'

from the when-in-doubt,-press-repeat dept

Pam Geller has decided there's nothing like grabbing more shovels when you're already in a hole. [And that means it's time for notable "leftist publication" Techdirt to crank out another "little hit piece" filled with "hyperbole and nonsense," apparently...]

Geller doesn't like the way she's been treated by Facebook, YouTube, and Twitter and has decided the problem is Section 230 of the CDA. So, she's suing the DOJ for "enforcing" the immunity the government has granted to websites to shield them from being held responsible for user-generated content.

The DOJ responded to her lawsuit by pointing out that the DOJ doesn't ENFORCE anything. It's a defense service providers can raise when entities come after them for content posted by their users. In Geller's mind, Section 230 gives service providers the "right" to arbitrarily remove content. She's wrong, of course. It does no such thing. Instead, Section 230 prevents service providers from being held civilly liable for making "good faith" efforts to remove objectionable content. The rest of what Geller's complaining about can be traced back to each provider's terms of service and their individual translations of what that means in terms of Geller's often-inflammatory content.

Geller continues to insist this is about suing Facebook, even though Facebook isn't a named party. And her response to the DOJ's motion to dismiss strongly suggests she feels she can't directly sue any service provider for taking down her content because of Section 230. This is also incorrect. She may have almost no chance of winning the suit, but nothing in Section 230 prevents service providers from being sued for allegedly discriminatory behavior. From Geller's opposition motion [PDF] (h/t Adam Steinbaugh):

By way of § 230, the Government is empowering this type of discrimination and censorship. 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.”

This is where Geller misreads "permits" as "orders." Section 230 does not place any content-based restrictions on speech. Instead, it immunizes service providers from civil liability for good faith content removal. Geller calls this immunization "government-sanctioned discrimination and censorship of speech" -- somehow finding a defense mechanism to be an avenue of attack. (She repeats her laughable assertion that Section 230 is a "heckler's veto" multiple times in the filing.)

From there, Geller theorizes that Section 230 would prevent Facebook, et al from being sued for violating California's anti-discrimination statutes. This theory is incorrect as well.

The pertinent part of Section 230 reads:

Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

This law immunizes Facebook from being held liable for, say, Pam Geller's controversial content -- even if a state law says otherwise. What it doesn't do is immunize Facebook from liability for violating California discrimination laws, which is where Geller has a somewhat more cognizable claim. Unfortunately for her, she's chosen to name the wrong defendants and file in the wrong jurisdiction. Continuing to misconstrue a defense as an attack, Geller insists that she has standing to sue the federal government for content removal performed by a private company.

The very reason why Facebook, Twitter, and YouTube are able to engage in their discriminatory practices with impunity is § 230. See Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014) (concluding that § 230 foreclosed tort liability predicated on Facebook’s decision to allow or to remove content). In other words, the Government has sanctioned these discriminatory practices by placing them above the law. Consequently, the traceability element is satisfied.

If there's anything "traceable" here, it's the California location of the entities she mentions in her lawsuit (YouTube, Facebook, Twitter) but has not named as defendants. California law is the angle she should be using to attack these companies for their allegedly "discriminatory" removal of her postings, but she has filed in federal court and named the DOJ as the defendant.

Geller notes that California law prohibits the sort of discriminatory behavior she's alleging:

Section 51 of the California Civil Code provides, in relevant part, All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

If her allegations are true and these service providers are discriminating against her, Section 230 would not immunize them against these claims. But even if she were to raise claims solely under this law, she would likely not succeed.

The law only requires company provide "access." It does not demand they allow anyone to do whatever they want once they're granted access. Under this law, Facebook can't deny Geller an account simply because it doesn't like her religious views, but it is under no obligation to allow her to post whatever she wants. The DOJ, in its motion to dismiss, addressed this point as well (even though it was under no obligation to make California's arguments for it).

Nor is it clear how California law can require a private social media company to publish Plaintiffs’ speech, see Compl. ¶¶ 46-61, or how such a state-law requirement would be consistent with the First Amendment, which arguably protects a social media company’s editorial control or judgment from government regulation that would require publication of a certain message.

If Geller were able to prove she was denied access based on her religious beliefs (and a temporary ban doesn't cut it, legally-speaking), Section 230 would not stand in the way of the civil suit Geller doesn't appear to actually want to file. All Section 230 immunizes against is holding Facebook civilly liable for content users like Pam Geller have posted. And Geller's main complaint is that Facebook keeps taking her posts down, not allowing them to stay up.

At best, Geller's extremely misguided lawsuit may eventually boil down to litigation directly implicating California's anti-discrimination law and how that is actually applied to service providers located in California, but with users all over the world. It may also result in a somewhat indirect challenge of that law's Constitutionality. But what it won't do is make the federal government responsible for Facebook's actions. And Geller, whose popularity and following largely relies on inflammatory speech, is only shooting herself in the foot by attacking Section 230. If this immunization were not provided to social media platforms, it's highly unlikely she'd have anything more than a self-hosted personal blog for a soapbox.

The final irony is that Geller is no doubt opposed to anti-discrimination laws like California's that force private businesses to cater to customers they'd rather not -- perhaps even in opposition to their own religious beliefs. (See also: same sex marriage/wedding cakes.) But she wants the government to step in and act as arbiters of private companies' terms of service and prevent the sort of discrimination she claims is taking place.

Filed Under: cda 230, doj, free speech, intermediary liability, pam geller, section 230
Companies: facebook

DOJ To Anti-Muslim Troll Pam Geller: You're Suing The Wrong Entity, Genius

from the DOJ-motion-tl;dr:-what-even-is-this dept

There simply aren't enough derogatives in the dictionary to apply to Pam Geller's lawsuit against the DOJ for its "enforcement" of Section 230. Geller doesn't appear to know what she's doing, much less who she's suing. Her blog posts portray her lawsuit against the DOJ as being against Facebook. Facebook has earned the ire of Geller by enforcing its terms of use -- rules Geller clearly disagrees with.

Somehow, Geller has managed to construe the actions of a private platform as government infringement on her First Amendment rights. The connective tissue in her litigious conspiracy theory is Section 230 -- the statute that protects service providers from being sued for the actions of their users.

Considering Geller's fondness for posting inflammatory content, you'd think the last thing she'd want to attack is Section 230. A successful dismantling of this important protection would mean Geller would be even less welcome on any social media platform.

But the burning stupidity propelling Geller's white-hot hazardous waste dump of a lawsuit knows no bounds. Somehow, actual lawyers -- working in concert with Geller -- came up with this breathtakingly wrong interpretation of Section 230.

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.

These are the sorts of allegations the DOJ somehow must respond to, thanks to Geller suing Facebook by suing the DOJ or whatever the hell it is that's happening here.

The DOJ has responded [PDF]. It also finds the lawsuit to be a monument of mouth-breathing stupidity but is unable to say so in those exact words. Instead, it simply points out that everything about the lawsuit is wrong -- especially the parts where Geller insists the DOJ is somehow on the hook for "forcing" service providers to avail themselves of the Section 230 "heckler's veto." (h/t Adam Steinbaugh for sending over the motion to dismiss)

Plaintiffs’ alleged injury—a private social-media company’s removal of content from a particular user’s account pursuant to that company’s private terms of service—is not an action that is fairly traceable to the United States or the federal statute Plaintiffs identify in their Complaint—Section 230 of the CDA. Instead, Plaintiffs’ allegations make clear that they are aggrieved by the decisions of private third parties, whom the United States does not control and whose actions it cannot predict. Plaintiffs’ alleged injury is also not redressable by their requested relief. Plaintiffs request that the Court declare Section 230 to be unconstitutional and to enjoin the Attorney General from enforcing this provision. But the Attorney General does not enforce Section 230 against private parties. To the contrary, this provision merely provides an immunity that a private party can invoke as a defense in a private civil lawsuit. Because the Attorney General does not enforce Section 230 against anyone, an injunction prohibiting such non-existent enforcement would be meaningless and would not redress Plaintiffs’ alleged injury.

The DOJ goes on to point out that even if Geller and her lawyers could assemble a coherent claim, they're going after the wrong party. The correct target would be Facebook -- which Geller seems to believe is the entity she's actually suing -- rather than the US government, which has nothing to do with the perceived "censorship" Geller's complaining about.

[E]ven if Plaintiffs could establish Article III standing, they fail to state a cognizable constitutional claim because they do not identify any state action that could implicate the First Amendment. It is axiomatic that the First Amendment applies only to the government’s restriction of speech, and not to a private individual or entity’s decision to permit or restrict speech. Yet Plaintiffs challenge a quintessentially private decision in this case—a social media company’s control of its platform pursuant to its terms of service. Under well-established state-action principles, Plaintiffs cannot show that Section 230 caused the constitutional deprivation they allege, or that the entities causing the injury—private social media companies—are state actors. Therefore, Plaintiffs fail to state a claim under the First Amendment and judgment should be entered in favor of the United States.

This judgment is sure to follow presumably with the judicial version of "lolwut" and a dismissal with prejudice. It's not like an amended complaint could fix this brutally-misguided lawsuit. To begin with, it needs an entirely different defendant (Facebook) and the excision of anything involving Section 230, because nothing about that protection has anything to do with the issues Gellar's complaining about. If Geller doesn't like the way Facebook treats her, she's free to complain directly to the company. It likely won't do her any good, but trying to take a company to court for enforcing its terms of use isn't going to go much further than suing the DOJ over service provider immunity.

Filed Under: cda 230, doj, free speech, pam geller, section 230
Companies: facebook

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

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?"

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