"Congress shall make no law…abridging the freedom of speech..."

Written by John (the other John).

Pursuant to the 1st Amendment of the US Constitution, not only is Congress forbidden from directly violating a person’s right to free speech, but Congress also lacks the Constitutional authority to delegate to a private entity de facto proxy power that results in limiting/suppressing/abridging people’s 1 st Amendment right to free speech either. That being said, when Congress enacted 47 U.S.C. 230(c)(2), it no doubt did not intend to suppress freedom of speech, but the unintended consequence is that social media companies have abused their carte blanche authority in defining what is a “good faith” restriction on people’s speech based on their own political views; and the reason that they get away with this is because they are shielded from civil liability for this suppression. In pertinent part, the statute reads:

(2) CIVIL LIABILITY No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

Although the statute on its face does not appear to violate the 1st Amendment, it is the application of the statute by Congress’ proxies that results in these present instances of violations of people’s 1 st Amendment rights. This is in large part due to the undefined term as to what is a “good faith” restriction of free speech, which leads to an arbitrary and capricious application of this provision by Congress’ proxies (i.e., personal political views). Moreover, shielding social media from civil liability makes them immune from any repercussions for their violations.

Therefore, the only remedy available for the victims is to attempt to have the Courts find Congress in violation of the Constitution for having “…ma[d]e a law abridging the freedom of speech…” by deputizing private proxies to limit said speech.

That being said, a “devil’s advocate” position can be taken that Section 230 only shields a social media carrier from civil liability for “good faith” restrictions, but it does not shield them from civil liability for “bad faith” restrictions, thus they still can be sued. Although true in theory, considering the tremendous financial resources of these social media carriers (such as Twitter, Google, Apple, etc...), this litigation battle would be between extremely unequal combatants (i.e., giants with endless wealth versus a company/person who is but a peon with very limited resources). Thus, the lawsuit could occur, but a person battling these behemoths in Court to define “bad faith” restrictions could face financial ruin due to the high costs of litigation. Hence, this avenue not only leads to the “road to nowhere”, but also to the “road to financial ruin”. Therefore, this Herculean task of suing the social media companies and prevailing with the argument of a “bad faith” restriction is nearly impossible, which essentially allows this statute to “...abridge[e] the freedom of speech...”