Section 230 is a piece of Internet legislation in the United States, passed into law as part of the Communications Decency Act of 1996, formally codified as Section 230 of the Communications Act of 1934. 230 generally provides immunity for website platforms from third-party content, according to Wikipedia.
“Most, if not almost all courts, have relied on ‘questionable precedent’ when considering Section 230 immunity,” Jason Fyk said, who is one of several plaintiffs who have sued social media companies for removing their posts or banning their accounts.
“Remember this Section 230 tweet! “Section 230 is a quasi-legislative, Congressional delegation of function to an independent agency, granting the authority to self-regulate offensive materials, in good faith, predicated on the “Good Samaritan” Intelligible principle.” If a service provider does not act for the good of others it does not get section 230 protections… it’s that simple,” Jason Fyk posted on Twitter on Wednesday.
Fyk lost a court battle with Facebook after they allegedly unpublished his business pages and sold his content to a third party, and he is jumping back in the ring with Facebook after he sees a new pathway forward.
FYK IS GOING BACK TO COURT AND ENCOURAGED THIS TIME
This new case could change everything because now there is a conflict in legal rulings, as explained in Fyk’s recent Medium Post, where he reported on his findings:
“Two diametrically opposed 9th Circuit decisions that can neither coexist nor be lawfully reconciled.”
Section 230 FINALLY has a Circuit Court conflict! Guess who's heading back there!
— Jason Fyk (@JasonFyk) May 5, 2021
Fyk posted that he is encouraged by the most recent ruling by the 9th Circuit Court, which causes a conflict with other rulings, and which is the foundation for this update to his case and the subsequent Medium posts and tweets.
From his April 12 Medium post, Fyk writes about the alarming powers given to big tech, which he says invalidate a citizen’s civil rights. Fyk writes that he believes that his due process rights were infringed upon with the first ruling and that he is proceeding in holding Facebook accountable for unpublishing his pages and then selling his content.
Fyk points to the confusing rulings about section 230 and the rights that social media have been given by different courts, which don’t seem to have any solid footing yet dealing with significant legal issues.
THE WILD, WILD WEST OF THE INTERNET-THE COURT NEEDS TO GET CONTROL OF IT FOR CITIZENS
To prove that point, Fyk cites a different case from his,” Snapchat created a speed filter which rewarded a user with new filters based upon how fast they were moving. Someone used the filter at 120mph and ended up crashing, killing themselves and two children.
The family sued for negligence. Snapchat attempted to invoke 230(c)(1) immunity claiming they can not be treated as “the publisher” for their own negligent conduct. (This is the same defense Facebook used in Fyk vs. Facebook in regards to anticompetitive conduct-both of which are illegal).”
Remember Fyk, like many others, was growing his business on Facebook, not merely sharing recipes and photos of pets and kids when his pages were unpublished. These are major civil rights issues for American courts to get their heads around and come up with legally solid landmark decisions.
The 2nd Circuit Court determined that Section 230(c)(1) does not provide Snapchat 230 protections for negligence conduct. The 9th Circuit in Enigma vs. Malwarebytes came to a similar conclusion stating, “the “Good Samaritan” provision of the Communications Decency Act does not immunize blocking and filtering decisions based upon an anticompetitive [motivation].
So now there is a conflict about who has what rights, and Fyk is continuing to press ahead after Facebook.
His motivation: “Put more simply, Courts have not applied Section 230 as written, leaving inaccurate decisions behind which will impact future litigation. Decisions that have allowed overly broad immunity while denying almost everyone any potential hope of their day in court. Courts have consistently been granting immunities to service providers which do not exist within the actual language of Section 230,” he wrote on Medium.
The 9th Circuit got this right finally. The plaintiff was pursuing negligent conduct, not treating them as "the publisher" of the content. That's the proper distinction. I am pursuing Facebook's anticompetative conduct, not treating them as "the publisher" of my own content. pic.twitter.com/eguTqeI8Pb
— Jason Fyk (@JasonFyk) May 5, 2021
Fyk, according to his writings, agrees with Supreme Court Justice, who gave him some fuel for the subsequent lawsuit, and wrote: “Justice Thomas’ Enigma statement, regarding section 230, was neither a fluke nor “misguided.” It is quite the opposite.
As Justice Thomas accurately pointed out, “[t]his modest understanding [CDA Section 230] is a far cry from what has prevailed in court. Adopting the too-common practice of reading extra immunity into statutes where it does not belong.”
Courts have granted “extra immunity” for a service provider’s illegal misconduct, not for the content. Justice Thomas noted the same, “(stating that §230 should not apply when the plaintiff sues over a defendant’s “conduct rather than for the content of the information”).
My case addressed all of this, and we seemed to be the “appropriate case” and briefing, but unfortunately, the Supreme Court denied our petition for writ of Certiorari.”
NEXT STEPS-ARMED WITH NEW DATA
Fyk wrote, “Recently, we (myself and Callagy law) filed a motion 60b in the Northern District Court based upon new Enigma precedent, Justice Thomas’ Enigma Statement and now we have the 2nd Circuit Snapchat decision which all conflict with my judgement. ”
IT IS ABOUT THE GOOD SAMARITAN PROVISION OF SECTION 230
The “Good Samaritan” provision of the CDA is what’s called the “intelligible Principle” upon which a quasi-legislative entity must base its regulations. “In J.W. Hampton v. United States, 276 U.S. 394 (1928), the Supreme Court clarified that when Congress does give an agency the ability to regulate, Congress must give the agencies an “intelligible principle” on which to base their regulations.
This standard is viewed as quite lenient, and has rarely if ever, been used to strike down legislation.” (Cornell law Nondelegation Doctrine)
In Fyk’s Medium post he goes into greater detail about the Good Samaritan Law, concluding:
“Section 230 is not necessarily broken, it is too vague, misunderstood, misinterpreted and misapplied by the courts but I intend to “FYK-s” section 230 and have recently proposed a legislative amendment to prevent any further confusion with Section 230 in the future. Section 230 does not need to be rewritten; it needs to be clarified and understood,” Fky wrote.
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“If that still fails then we will be forced to challenge the Constitutionality of Section 230 by suing the United States itself over Due Process violations under void for vagueness and or the Nondelegation doctrine,” he wrote.
Kari is an ex-Community Organizer who writes about Voter Engagement, Cultural Marxism and Campaigns. She has been a grassroots volunteer with the GOP, on and off for 18 years. She is a Homeschool Mom in North Carolina and loves Photojournalism and Citizen Journalism. @Saorsa1776