Constitutional Challenge to Section 230 Fails On Standing Grounds–AFDI v. Lynch

November 11, 2016 · by · in Content Regulation, Derivative Liability

This lawsuit involves a facial attack on Section 230 on First Amendment grounds. The plaintiffs are unhappy that, protected by Section 230, social media companies have squelched some of their speech while allowing other speakers to promulgate content they don’t like. The defendant in this case is Attorney General Lynch, but the DOJ plays no role in enforcing Section 230. Thus, the plaintiffs lack standing:

Because the Attorney General lacks the authority to enforce § 230, the injury alleged here is not fairly traceable to her actions.

and

Plaintiffs seek an injunction prohibiting Defendant from enforcing § 230 and a declaration that the provision violates the First Amendment. As the Attorney General has no enforcement authority, such an injunction would be meaningless….It would not constrain Facebook, Twitter, or YouTube from invoking § 230 as a defense to any state-law discrimination or censorship action brought against them by Plaintiffs, nor would it restore Plaintiffs’ removed content or legally prevent the social-media platforms from deleting or otherwise editing Plaintiffs’ content in the future.

The constitutional challenge to Section 230 similarly fails because it speculatively assumes the social media companies would change their practices if Section 230 went away, but “absent the affirmative defense supplied by § 230, the private social-media companies could argue that they cannot be compelled to publish a particular message.” The court says the plaintiffs are free to sue the social media companies directly and then raise the constitutional challenges to Section 230 if/when the defendants invoke it. Good luck with that.

2016 has been a tough year for Section 230. Fortunately, this particular suit goes nowhere. Unfortunately, other suits are gutting big chunks of Section 230 (I’ll blog the Airbnb case shortly).

Case citation: American Freedom Defense Initiative v. Lynch, 2016 WL 6635634 (D.C. D.C. Nov. 9, 2016)

Also note: American Freedom Defense Initiative v. Lynch, 1:16-cv-01437 (D.C. D.C. July 13, 2016):

Plaintiffs seek a preliminary and permanent injunction enjoining Section 230 of the Communications Decency Act, which permits Facebook, Twitter, YouTube and others to engage in government-sanctioned discrimination and the suppression of free speech….Section 230 permits content- and viewpoint-based censorship of speech. By its own terms, § 230 permits Facebook, Twitter, and YouTube “to restrict access to or availability of material that [they] consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”…Section 230 confers broad powers of censorship, in the form of a “heckler’s veto,” upon Facebook, Twitter, and YouTube censors, who can censor constitutionally protected speech and engage in discriminatory business practices with impunity by virtue of this power conferred by the federal government.