a Better Bubble™
With the launch of Donald Trump's ridiculous Truth Social offering, we've already noted that he's so heavily relying on Section 230's protections to moderate that he's written Section 230 directly into his terms of service. However, at the same time, Trump is still fighting his monstrously stupid lawsuits against Twitter, Facebook, and YouTube for banning him in the wake of January 6th.
Not surprisingly (after getting the cases transferred to California), the internet companies are pointing the courts to Section 230 as to why the cases should be dismissed. And, also not surprisingly (but somewhat hilariously), Trump is making galaxy brain stupid claims in response. That's the filing in the case against YouTube which somehow has eight different lawyers signed onto a brief so bad that all eight of those lawyers should be laughed out of court.
The argument as to why Section 230 doesn't apply is broken down into three sections, each dumber than the others. First up, it claims that "Section 230 Does Not Immunize Unfair Discrimination," which claims (falsely) that YouTube is a "common carrier" (it is not, has never been, and does not resemble one in any manner). The argument is not even particularly well argued here. It's three ridiculous paragraphs, starting with Packingham (which is not relevant to a private company choosing to moderate), then claiming (without any support, since there is none) that YouTube is a common carrier, and then saying that YouTube's terms of service mean that it "must carry content, irrespective of any desire or external compulsion to discriminate against Plaintiff."
Literally all of that is wrong. It took EIGHT lawyers to be this wrong.
The second section claims -- incorrectly -- that Section 230 "does not apply to political speech." They do this by totally misrepresenting the "findings" part of Section 230 and then ignoring basically all the case law that says, of course Section 230 applies to political speech. As for the findings, while they do say that Congress wants "interactive computers services" to create "a true diversity of political discourse" as the authors of the bill themselves have explained, this has always been about allowing every individual website to moderate as they see fit. It was never designed so that every website must carry all speech, but rather by allowing websites to curate the community and content they want, there will be many different places for different kinds of speech.
Again. Eight lawyers to be totally and completely wrong.
Finally, they argue that "Section 230(c) Violates the First Amendment as Applied to This Matter." It does not. Indeed, should Trump win this lawsuit (he won't) that would violate the 1st Amendment in compelling speech on someone else's private property who does not wish to be associated with it. And this section goes off the rails completely:
The U.S. contends that Section 230(c) does not implicate the First Amendment because “it “does not regulate Plaintiff’s speech,” but only “establishes a content- and viewpoint-neutral rule prohibiting liability” for certain companies that ban others’ speech. (U.S. Mot. at 2). Defendants’ egregious conduct in restraining Plaintiff’s political speech belies its claims of a neutral standard.
I mean, the mental gymnastics necessary to make this claim are pretty impressive, so I'll give them that. But this is mixing apples and orangutans in making an argument that, even if it did make sense, still doesn't make any sense. Section 230 does not regulate speech. That's why it's content neutral. The fact that the defendant, YouTube, does moderate its content -- egregiously or not -- is totally unrelated to the question of whether or not Section 230 is content neutral. Indeed, YouTube's ability to kick Trump off its platform is itself protected by the 1st Amendment.
The lawyers seem to be shifting back and forth between the government "The U.S." and the private entity, YouTube, here, to make an argument that might make sense if it were only talking about one entity, but doesn't make any sense at all when you switch back and forth between the two.
Honestly, this filing should become a case study in law schools about how not to law.
stLouIST
