As you know, last week Donald Trump sued Facebook, Twitter, and YouTube in ridiculously dumb cases (which seemed to only really serve the purpose of continuing his culture grievance war and to be used as a fundraising hook). In each case, they claimed (incorrectly) that the private companies violated the 1st Amendment by kicking Trump and others off the platform and that Section 230 itself was somehow unconstitutional.
Two days later, it appears that someone on the legal team realized that when you file a lawsuit claiming that a federal law is unconstitutional, you have to file a notice of constitutional question, which effectively alerts the DOJ/Attorney General that someone, somewhere is challenging the constitutionality of the law.
Trump has now done so with identical such filings for YouTube, Twitter and Facebook. The notice is as short and sweet as it is ridiculous:
1. Section 230(c)(1) and 230(c)(2) were deliberately enacted by Congress to induce, encourage, and promote social medial companies to accomplish an objective—the censorship of supposedly “objectionable” but constitutionally protected speech on the Internet—that Congress could not constitutionally accomplish itself.
2. Congress cannot lawfully induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Norwood v. Harrison, 413 US 455, 465 (1973).
3. Section 230(c)(2) is therefore unconstitutional on its face, and Section 230(c)(1) is likewise unconstitutional insofar as it has interpreted to immunize social media companies for actions, they take to censor constitutionally protected speech.
This argument has been made a few times, and it's incredibly dumb. The citation to Norwood is beyond silly for some very, very basic reasons. While it is true that the government "may not induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish," there is absolutely nothing in Section 230 that induces or encourages any action that is constitutionally forbidden.
Companies have every constitutional right to remove people who violate their terms of service. They have every constitutional right to say "I don't want to host your speech." None of that is constitutionally forbidden.
And nothing in Section 230 "induces" or "encourages" any behavior. What it says is that websites are free to moderate how they want, without fear of liability. Indeed, one of the biggest complaints from many (especially most of the early Section 230 lawsuits, and the Prodigy lawsuit that inspired Section 230 in the first place) was that without Section 230, websites would be much faster to remove all sorts of content out of fear of liability. If you're trying to induce websites to take down content that the government cannot force to be taken down, you don't do it by saying "you're not liable if you leave all that content up." That would be the dumbest inducement possible.
What still astounds me is that no one who is filing these lawsuits seems to recognize that if Section 230 were actually found unconstitutional, it would mean that websites would be much, much quicker to remove the likes of Donald Trump and his propaganda-spewing allies, because the risk of liability from lawsuit would be too great, and the 1st Amendment would still be around to protect their moderation choices.
And I won't even bother responding to the idea that 230 was put in place to encourage censorship on social media when social media... didn't exist when Section 230 was put in place.
Either way, it will be interesting to see if this move leads the DOJ to now get involved -- and what it will say in this case. After all, we (unfortunately) still have Joe Biden on record insisting that Section 230 should go away.
