Federal Court Determines Section 230 ‘Is Not License To Do Whatever One Wants Online’
The Fourth Circuit Court of Appeals just fixed 230(c)(1), creating a conflict with the Ninth Circuit Court. Will the Supreme Court finally address the breadth of Big Tech immunity?
On Nov. 3, the Fourth Circuit Court of Appeals rendered a decision in Henderson v. Private Data that could revolutionize the internet, concluding that Section 230 of the Communications Decency Act does not immunize “all” online publication decisions. The Fourth Circuit Court just determined Section 230(c)(1) no longer protects a service provider when it acts upon third-party content (i.e., as a secondary publisher or content provider), especially if those substantive contributions are unlawful.
Simply put, we have been right all along, and we now have the conflicting circuit court precedent to prove it. The Supreme Court needs to consider the Fourth Circuit’s arguments and address this split between circuits.
As I’ve also discussed in Human Events and The Gateway Pundit, Section 230 has two distinct problems. Section 230(c)(1) is untenable “as applied” and it is unconstitutional “on its face.”
Prior to the Fourth Circuit Court’s Henderson decision, most courts, relying on longstanding precedent like Zeran v. AOL inc., wrongly believed Section (c)(1), not 230(c)(2), “shields from liability all publication decisions, whether to edit, to remove, or to post, with respect to content generated entirely by third parties.” This statement, taken out of context, is wrong.
Courts have consistently misapplied 230(c)(1)’s protection to content moderation decisions more fitting the 230(c)(2) paradigm. Section 230(c)(1) was read and applied so broadly that 230(c)(1) became absolute sovereignty and 230(c)(2) became redundant protection.
Under such reasoning, the California courts came to the arbitrary conclusion that I was treating Facebook as “a publisher” of my own content, and that their “content development” actions (i.e., substantive contributions) did not rise to the arbitrary level of an “information content provider.” They dismissed my case without truly considering my argument.
The CDA Can’t Protect ‘All Publication Decisions’
Over the past 51 months, my attorneys, Jeff Greyber and Constance Yu, and I have been arguing that 230(c)(1) cannot logically immunize “all publication decisions.” In fact, we argued Section 230(c)(1) cannot logically apply to any active content moderation decisions. However, we have not had much success convincing the courts that their longstanding precedent is fatally flawed.
Mere days before we petitioned the Supreme Court, things took a strange turn. Another Ninth Circuit case, Enigma vs. Malwarebytes, concluded the “Good Samaritan” general provision of the CDA located in Section 230(c), does not immunize anticompetitive content blocking. Anticompetitive blocking was the exact cause of action I had advanced in the California courts. My result, however, was different than Enigma’s.
We hit a unique crossroads. Do we go back to the Northern District of California (NDCA) to argue the Enigma panel conflict and forgo our eminent Supreme Court filing, or do we press ahead, include Enigma in our Petition for Writ of Certiorari, and argue it in the Supreme Court? Since our petition was essentially ready to file, it made far more sense to go forward rather than backward.
Unfortunately, the Supreme Court declined to take up our case, likely because the conflicting decisions were within the same circuit court. It seems we were a little ahead of our time, as now the conflict is between circuits as well, with the Fourth Circuit’s November decision.