Thanks for the link to the post on the SAVE act. I had not considered criminal prosecutions against a website for something like material support would run into FA problems over and beyond the FA problems a criminal prosecution against an individual would. I guess the Press freedoms would be unique to the website.

Federal criminal prosecutions of these sorts would run into serious First Amendment problems; and with Backpage, there would also be serious scienter issues. https://blog.ericgoldman.org/archives/2016/11/backpage-cant-challenge-the-save-act-backpage-v-lynch.htm

Maybe the feds don’t want to go after twitter that way. But what about all the backpage lawsuits? All those state ags/prosecutors hate backpage that much, and keep getting thwarted by 230, but they can’t get their local usa to cook up some rico charges? Perhaps someone here can enlighten me. Am I misunderstanding the law? Was there an policy decision at DoJ?

1.) When a Complaint DOES allege sufficient facts to state a claim that’s not barred by Section 230, but the alleged facts are NOT TRUE, file an Answer and an immediate Rule 56 Motion for Summary Judgment (and maybe also serve a draft Rule 11 motion).

2.) When a Complaint does NOT allege sufficient facts to state a claim, and/or it is readily apparent from the pleadings that the claim is barred by Section 230 (assuming the facts are viewed in a light most favorable to the plaintiff), then a 12(b)(6) motion is OK.

3.) When a Complaint alleges facts sufficient to state a claim that’s not barred by Section 230, and the alleged facts are TRUE — settle ASAP.

Having said that, obviously this was a Type #2 situation. Thus, Twitter used the correct approach, and it got the correct result.

With only 40 days left in 2016, let’s hope we see a few more rulings like this.