Two diametrically opposed 9th Circuit decisions that can neither coexist nor be lawfully reconciled.

Most, if not almost all courts, have relied on “questionable precedent” when considering Section 230 immunity. Courts have consistently rendered inconsistent decisions that are both legally and logically inappropriate, the Fyk vs. Facebook decision being one of them. Specifically, Section 230 DOES NOT in fact, “protect[] from liability any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online” (per 9th Circuit). More specifically Section 230(c)(1) DOES NOT immunize ANY or ALL editorial decisions without regard for motive. We demonstrated this principle throughout our briefs but the courts simply ignored how Section 230 must work for the law itself to be harmonious as discussed in more detail here (Section 230 — “A” Decision That Could Change “The” Social Media World). The problem is not as much Section 230 is wrong but instead the inappropriately broad application and cursory adjudication by the courts themselves has destroyed the proper application of Section 230.

Justice Clarence Thomas on the other hand, was not as misled. On October 13, 2020 Justice Thomas rendered an advisory opinion and undertook a substantial analysis of Section 230’s application in the Enigma vs. Malwarebytes denial of Certiorari which raised most, if not all, of the same legal questions and concerns we raised in our court briefing.

Justice Thomas noted: “…Courts have [] departed from the most natural reading of the text by giving Internet companies immunity for their own content (and/or conduct). …Courts have long emphasized non-textual arguments when interpreting §230, leaving questionable precedent in their wake. …[I]n an appropriate case we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms. …[I]n the 24 years since, we have never interpreted this provision. But many courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world.”

Put more simply, Courts have not applied Section 230 as written, leaving inaccurate decisions behind which will impact future litigation. Decisions which have allowed overly broad immunity while denying almost everyone any potential hope of their day in court. Courts have consistently been granting immunities to service providers which do not exist within the actual language of Section 230.

Justice Thomas noted the same, “[a]dopting the too-common practice of reading extra immunity into statutes where it does not belong.”

Once again, Section 230 itself, is not the main issue at hand, it is the court’s misinterpretation and misapplication of the statute. Put even more simply, Section 230 would work if the courts read the actual text as written and properly apply what the text of Section 230 truly says. For example, Section 230(c)(1) does not say one can not treat a service provider as “a publisher” it says one cannot treat the provider or user as “the publisher”. “The publisher” being the primary publisher and “a publisher” being a secondary publisher in addition to “the publisher”. In other words, you can’t be treated as someone else for their misconduct. That seems self-evident, yet the courts missed the mark entirely.

In 2018, we (Fyk with the help of Callagy Law) sued Facebook for Tortious interference, Fraud, Extortion, and Unfair Competition. Question one on page one of our original complaint plainly asked the courts, “…whether Facebook can, without consequence, engage in brazen tortious, unfair and anti-competitive, extortionate, and/or fraudulent practices…”

The question was very straight forward and should be easy to answer. Put another way, can Facebook make any editorial decision it wants based upon an illegal anticompetitive motivation? The answer should simply be no however, the courts failed to distinguish between publisher content liability and a service provider’s own unlawful conduct (Facebook’s anti-competitive misconduct).

Similarly, Justice Thomas noted in Enigma, “…plaintiffs were not necessarily trying to hold the defendants liable “as the publisher or speaker” of third-party content, §230(c)(1). Nor did their claims seek to hold defendants liable for removing content in good faith, §230(c)(2). Their claims rested instead on… defendant’s own misconduct.”

Justice Thomas recognized the difference between suing the provider as “the publisher” for the actions of another to publish content [as it relates to 230(c)(1)], suing the provider for acting as “a publisher” removing materials in good faith [as it relates to 230 (c)(2)] and when a plaintiff sues over illegally motivated misconduct [as it relates to 230(c)]. Traditionally, the courts have failed to properly apply Section 230(c) “Good Samaritan” principles at the onset of dismissal consideration.

Taken directly from our motion for rule 60(b): “This court correctly noted in its Order Granting Motion to Dismiss, “immunity, “like other forms of immunity, is generally accorded effect at the first logical point in the litigation process” because “immunity is an immunity from suit rather than a mere defense to liability.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (9th Cir. 2009). Enigma’s new 230(c) precedent “Good Samaritan” standard is “the first logical point” to determine 12(b)(6) immunity. The question the courts must now ask at the 230(c) threshold; did the interactive computer service provider act as a “Good Samaritan” in its decisions to block or screen materials?”

Did the Provider act as a “Good Samaritan” should have been the very first question asked in my lawsuit and every other lawsuit to follow when considering Section 230’s 12(b)(6) dismissal. Unfortunately, that question was not asked by the courts and my lawsuit was dismissed based on the very same “non-textual” “questionable precedent” Justice Thomas noted. We then filed a petition to the Supreme Court, specifically quoting Justice Thomas’ own words, but the Supreme Court declined to hear the case. My lawsuit was never properly adjudicated since the new precedent arrived after our decision but during the petition stage. At the time, we didn’t know whether to move forward to the Supreme Court or backwards to the District Court. It was at the very least an extraordinary circumstance. With that said, we have not yet conceded defeat. Our legal argument and interpretation of Section 230 was proven to be accurate and the decision to be unjust by both Justice Thomas’ opinion and the new Enigma legal precedent.

During our proceedings, the lower courts did not have the benefit of considering the Enigma judgement since it was not finished until October 13, 2020, well after our hearings had concluded on June 12th 2020. If applied properly and justly, the Enigma decision should fundamentally change the outcome of our dismissal decision and serve to maintain judicial uniformity.

Fyk vs. Facebook Court Determinations:

1. Facebook did not qualify as an “information content provider” [as defined in 230(c)(1)] when developing Fyk’s content “in part” [insignificant manipulation] stating, “Fyk,… d[id] not identify how Facebook materially contributed to the content of the pages.”

2. Fyk sought to hold Facebook liable as “a publisher” stating, “[Fyk] has also not challenged the district court’s determination that his claims seek to treat Facebook as a publisher (in addition to “the publisher”- Fyk) and has therefore waived that issue.”

3. Facebook can take “any action” under 230(c)(1) (despite motive) as “a publisher” to exclude materials stating, “[R]emoving content is something publishers do… It is because such conduct is publishing conduct that we have insisted that section 230 protects from liability any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online.”

4. Section 230(c)(1) has no provision for editorial motivation stating, “nothing in § 230(c)(1) turns on the alleged motives underlying the editorial decisions of the provider of an interactive computer service.”

Analysis:

1. A simple textual read of 230(f)(3) provides no measure of substantial or “material contribution” to the creation or development of information. In fact, the words “in part” imply just the opposite whereas the development contribution need only be an insignificant portion or involvement. As Justice Thomas noted, “[C]ourts wrestle[d] with the language in §230(f)(3) suggesting providers are liable for content they help develop “in part.” To harmonize that text with the interpretation that §230(c)(1) protects “traditional editorial functions,” courts relied on policy arguments to narrowly construe §230(f )(3) to cover only substantial or material edits and additions.”

2. A simple textual read of 230(c)(1) states that a service provider cannot be treated as “the publisher” not “a publisher.” In this circumstance, the courts converted “the” into “a” which mistakenly grants a service provider carte blanche protection for any of its own publishing conduct rather than for the publishing conduct of “the publisher” (another). Thomas noted, “One source respectively refers to them as “primary publishers” and “secondary publishers or disseminators,” explaining that distributors can be “charged with publication.”

3. If a service provider cannot be treated as “a publisher” under 230(c)(1), it renders 230(c)(2)(a) superfluous, since removing content is something “a publisher” does which is the purpose of 230(c)2(a). Justice Thomas noted “The decisions t[o] broadly interpret §230(c)(1) to protect traditional publisher functions also eviscerated the narrower liability shield Congress included in the statute. Section 230(c)(2)(A)”. The courts have failed to properly identify who “the publisher” refers to in 230(c)(1) and is the cornerstone misinterpretation from which Section 230 immunity begins to disharmonize.

4. Besides 230(c)(1) being misapplied to any / all publishing activity (when 230(c)(2) should actually apply), 230(c)(1) has no measure of “good faith”, thus “any activity (as “a publisher”)that can be boiled down to deciding whether to exclude material that third parties seek to post online”, including otherwise unlawful activity such as anticompetitive behavior, would be otherwise immune from liability, simply because it exists within the ether of the internet. The Enigma decision “eviscerated” this court’s 230(c)(1) immunity determination and Justice Thomas noted, “Enigma sued Malwarebytes, alleging that Malwarebytes engaged in anticompetitive conduct… The Ninth Circuit relied heavily on the ‘policy’ and ‘purpose’ of §230 to conclude that immunity is unavailable when a plaintiff alleges anticompetitive conduct.” …“The Good Samaritan provision of the Communications Decency Act does not immunize blocking and filtering decisions that are driven by anticompetitive animus.” (Facebook’s own anti-competitive misconduct)

On October 13, 2020, Enigma successfully surpassed Malwarebytes 12(b)(6) motion to dismiss as affirmed by the Supreme Court. The Enigma decision is diametrically opposed to and cannot be reconciled with the Fyk vs. Facebook the decision. Either a service provider cannot be treated as “a publisher” under any circumstance regardless of motive as determined in the Fyk case or contrarily the motive matters at the “Good Samaritan” threshold, regardless of whether the service provider acted as “a publisher”? Put simply, these two decisions directly contradict and cannot co-exist within Section 230 protections.

Fyk vs. Facebook was entirely predicated on Facebook’s anticompetitive motivation to fraudulently block or filter my content, then actively develop (solicit, expound, make available, modify, manipulate, advance or promote the growth of material especially by deliberate effort over time) my content “in part” as “a secondary publisher” in addition to myself (“the primary publisher”) for a higher valued partner, thus confirming beyond any doubt that the decision to remove the content in the first place was not made in “good faith” as a “Good Samaritan”. As Justice Thomas cited in the Enigma decision, “some courts have misconstrued [230] to give digital platforms immunity for bad-faith removal of third-party content. That is exactly what happened here.

Not only was the allegation of anticompetitive behavior made in Fyk vs. Facebook but the allegation was openly acknowledged by the courts stating, “[t]hat Facebook allegedly took its actions for monetary purposes does not somehow transform Facebook into a content developer.”

Although the courts are correct in that the monetary motivation does not make Facebook a “developer” necessarily, the courts did however concede that the anticompetitive conduct allegation was in fact made and if the courts are to consider the allegations to be true and in the most favorable light of the plaintiff the judgment must be vacated because it is plainly wrong.

We have recently filed a Rule 60(b) motion. In that motion, we presented the Northern District court a Catch-22 decision. If being a publisher renders the motive irrelevant but motive renders being a publisher irrelevant, how does the court plan to reconcile these two decisions? One of the decisions (Fyk vs. Facebook) must be wrong and If the courts do not vacate the Fyk judgement, based on the new Enigma “Good Samaritan” motivation precedent, it raises additional Section 230 Constitutional Due Process claims against the United States since I have not received equal protections under the law. Put simply, the courts aren’t doing their job properly because “the state must respect all legal rights that are owed to a person” thus they are denying me Due Process under Section 230’s arbitrary protections.

Throughout our proceedings, we maintained Section 230 has been misinterpreted, misunderstood, and misapplied by the courts, granting what is essentially carte blanche / sovereign immunity in many cases. Justice Thomas raised the very same concerns. The courts have consistently and inapplicably misconstrued Section 230(c)(1) broadly and conversely, Section 230(f)(3) narrowly, “[a]dopting the too-common practice of reading extra immunity into statutes where it does not belong.”

This courts ambiguous interpretation and arbitrary application of Section 230 protections calls into question whether Section 230 is unconstitutional under Article 1 of the 14th Amendment, “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.”

For example: (Void for Vagueness Doctrine)

“Under [the] vagueness doctrine, a statute is also void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.” Here Section 230’s vague misapplication is so extensive (broad) it has led to arbitrary legal proceedings and protections.

For example: (Non-Delegation Doctrine)

“[Q]uestions of constitutionally improper delegations of powers of any of the three branches of government to either of the other, to the administrative state, or to private entities[]”whereby “one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized (or not authorized) to exercise itself. (see also A.L.A. Schechter Poultry v. United States) Here, the government has delegated the power to restrict materials under the protection of law, a function by which the government is not permitted to do itself.

As Justice Thomas noted and recently (April 5th, 2021) decided in (JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES, ET AL. v. KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY), “A “private entity is not ordinarily constrained by the First Amendment, it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint.” In other words, if private entities are suppressing free speech, the government does not have the authority to delegate such a function to a private entity under protection of law which the government does not have the authority or permission to do itself. Section 230 is thereby unconstitutional. Granting such a function to another entity would simply be an extended functional arm of the government (via Section 230 legal protections) to “coerces or induce[]” such a function that it would otherwise not be permitted to do itself.

My personal lawsuit and any other lawsuit (including ones that may arise in the future) must surpass Section 230’s motion for 12(b)(6) dismissal. Leaving the Fyk decision stand, creates conflicting precedent with the Enigma decision within the 9th Circuit Court of Appeals. This would provide one legal standard for Facebook and another standard for Malwarebytes on the very same issue of “anticompetitive animus”. It would allow companies to mistakenly and unlawfully crush competition through anticompetitive behavior only to later realize stiff legal penalties do apply.

Justice Thomas said in the Enigma opinion, “[p]aring back the sweeping immunity courts have read into §230 would not necessarily render defendants liable for online misconduct. It simply would give plaintiffs a chance to raise their claims in the first place. Plaintiffs still must prove the merits of their cases, and some claims will undoubtedly fail.” Or as Justice Thomas more recently said, “This immunity (Section 230) eliminates the biggest deterrent — a private lawsuit — against caving to an unconstitutional government threat.”

In other words, scaling back Section 230 to the modest understanding in which it was originally intended and apply as written would not necessarily mean a plaintiff would win a lawsuit if they surpass dismissal but rather it would grant him or her the ability to raise the claim in the first place because a “private lawsuit” act as the biggest deterrent to unlawful behavior.

We hope the courts do the right thing, but our direction, in the event the California Courts do not see the ‘judicial light’ (by resolving these two unreconcilable decisions), so to speak, is to bypass the California Courts entirely by moving the forum to Washington D.C. and suing the United States itself under Article 1 of the 14th Amendment amongst others. We are hoping the judges recognize Facebook’s intention to mislead the court’s understanding of Section 230, vacate the judgement and immediately remand Fyk vs. Facebook for trial on the merits. However, if we must sue the United States to be afforded Due Process, then we must.

The Judicial branch of government is not the only branch of government that can act to repair the damage that Section 230 has wrought upon this nation. The legislative branch of government can within it’s power fix (or as I like to call it “FYK-S”) Section 230. Many well-intentioned legal scholars and legislators have attempted to propose corrective legislative language measures but all of the proposals I have seen to date fall far short of making any noticeable change other than to further complicate and sway decisions in a political or ideological direction. Having had much firsthand experience litigating Section 230 means I am in a unique position to understand, not only how the current law is “supposed” to work but also how the courts are not making the proper connections to the language that already exists within Section 230.

My legislative proposal is not to change much of the language of section 230 but instead add necessary guide posts for future legal proceedings. We do not need to abandon what Section 230 was intended to accomplish but rather refine the language so Section 230 can no longer be misinterpreted and misapplied by the courts. In much simpler terms, we need to clean up the language of 230 so that the courts can’t deviate from its intended noble purpose to protect children from harm and promote the proliferation of content online. Below are my intended proposed changes to Section 230. You’ll quickly note, the changes are minimal and in no way partisan.

In proposing this Amendment, I relied more heavily on refined definitions, so as to provide guidance to the courts in order to prevent “[c]ourts [] long emphasized non-textual arguments when interpreting §230, leaving questionable precedent in their wake.”

FYK-Section 230 suggested legislative amendment

(C) Protection for “Good Samaritan” blocking and screening of offensive material (“INTELLIGIBLE PRINCIPLE”)

(1) Treatment of publisher or speaker (omission)

No provider or user of an interactive computer service shall be treated as the primary publisher or speaker of any information provided by another information content provider.

(2) Civil liability (any action)

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 unlawful, whether or not such material is constitutionally protected; or

(B)

any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1]

___________________________________________________________________

(f) Definitions

(1) Internet

The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.

(2) Interactive computer service

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

(3) Information content provider

The term “information content provider” means any person or entity that is responsible, in whole or “in part”, for the creation or development of information provided through the Internet or any other interactive computer service.

(4) Access software provider

The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:

(A) filter, screen, allow, or disallow content;

(B) pick, choose, analyze, or digest content; or

(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.

(5) “Good Samaritan”

The term “Good Samaritan” means any action or omission to render care for the good of others, in good faith, not for compensation, without gross negligence or wanton and willful misconduct.

(6) Material

The term material means any information provided through the Internet or any other interactive computer service.

(7) “In part”

The term “in part” means any insignificant contribution or involvement.

(8) Creation

The term creation means the act of bringing material into existence.

(9) Development

The term development means any action to solicit, expound, make available, modify, manipulate, advance or promote the growth of material especially by deliberate effort over time.

Explanation of terms:

(“INTELLIGIBLE PRINCIPLE”): Section 230 is a quasi-legislative Congressional delegation of authority, to an independent agency, granting the function to regulate offensive materials in good faith, predicated on the “Good Samaritan” Intelligible Principle. “[I]mmunity, …is generally accorded effect at the first logical point in the litigation process” because “immunity is an immunity from suit rather than a mere defense to liability.” The “Good Samaritan” Intelligible Principle is the “the first logical point” to determine 12(b)(6) immunity. The question the courts must now ask at the 230(c) threshold; did the interactive computer service provider act as a “Good Samaritan” in its decisions to block or screen materials?

(OMISSION): Section 230(c)(1) has nothing to do with editorial decisions. In fact, 230(c)(1) only applies when a service provider takes no action at all including “deciding” to leave materials which is in itself, an action to not act. The courts on the other hand, believe that editorial decisions (actions) as “a publisher” are inapplicably immune under 230(c)(1) because the service provider cannot be treated as “a publisher” which is neither correct nor is it the actual language of 230(c)(1). 230(c)(1) only relates to the FAILURE TO ACT when content remains on the site, published by “the publisher” which is the actual language contained in Section 230(c)(1). This subsection is specifically for the (OMISSSION) of action, contrary to “any action” found in 230(c)(2).

primary: In the case of Fyk vs. Facebook, the courts mistakenly converted “the” into “a” in relation to “the publisher”. By converting “the publisher” into “a publisher” it converts which publisher the service provider cannot be treated as (another vs itself). The purpose of 230(c)(1) is to prevent the service provider being treated as “the publisher” for the publishers’ actions to provide content. In converting “the” to “a” in transformed immunity from the actions of another into the service provider own actions which as Justice Thomas said would “eviscerate” the purpose of 230(c)(2). If a service provider can not be treated as a publisher and there is no measure of good faith, 230(c)(1) would inapplicably grant sovereign immunity. Clearly, Congress had no intention of granting carte blanche sovereignty when drafting Section 230 or 230(c)(1) To prevent confusion in the future, the word [primary] is added to identify which publisher the service provider can not be treated as. If the service provider acts as “a publisher” it becomes “a” secondary publisher in addition to “the” primary publisher and can in fact be treated as “a publisher” for its own actions within 230(c)(1).

(ANY ACTION): Although, the words “any action” are contained within both subsections 230(c)(2)(a) and 230(c)(2)(b) the courts have wrongly considered editorial decisions under subsection 230(c)(1). By adding (ANY ACTION) after CIVIL LIABILITY it identifies to the court which subsection applies directly to editorial conduct. If the service provider ACTS (in any way) as “a publisher” its actions are only subject to Section 230(c)(2) protections.

unlawful: The courts have consistently granted “broad” immunity when considering the editorial decisions, a service provider takes when blocking or screening materials. The word “objectionable” is not only broad but vague (leading to arbitrary decisions). Anything can be considered “objectionable” including lawful content. By removing the word “objectionable” and replacing it with the word “unlawful” the “broad” immunity (undesirable or offensive) is restrained to a more modest immunity (illegal, not morally right or conventional) such was the intended purpose of Section 230. Additionally, by changing the word objectionable to the word unlawful, it provides lawmakers the ability to set additional parameters through legislation for what is or is not lawful online material.

“in part”: The courts have consistently misinterpreted the proper understanding and application of Section 230(f)(3)’s (development… in part) because of improper textual interpretation and overly broad/vague application of Section 230 immunity where none should exist. The words [in part] already exist within Section 230(f)(3)’s definition section however the courts, in the case of Fyk vs. Facebook, transformed [in part] (meaning insignificant) into [material contribution] (meaning substantial). By adding quotations marks to the words “in part” it serves to emphasize the proper textual interpretation and application of the term “in part”.

Definitions explained:

(5) “Good Samaritan”: Courts have consistently ignored the application of the “Good Samaritan” provision when blocking or screening materials despite legislatures attempt to emphasize its application with quotation marks. By providing the definitional application of “Good Samaritan”, courts can determine at the threshold (the most logical point) whether the service provider acted on its own behalf or for the good of others such is the underlying principle of being a “Good Samaritan”.

(6) Material: The courts have consistently misapplied material (content) restrictions to personal (person) restrictions by way of immunizing the ban of users from the service itself. By providing the definition of the word material it helps to identify “provided” “information” as content and not an individual’s service access level. This would prevent the banning of individuals from accessing the same services held out to the public.

(7) “In part”: The courts have consistently misunderstood the definition of the term “in part”. It seems rather absurd to define such an insignificant term but somehow the courts have wrongly converted being responsible for an insignificant contribution into being responsible only if substantially contributing to the creation or development of materials. This again, helps to reign in the overly broad misapplication of Section 230.

(8) Creation: A commonly misapplied term (creation “in part”). It is arguable to say, that a service provider is not creating content “in part” (inconsequentially contributing to the act of bringing content into existence) if it is soliciting content from and paying a third party to create content. How is this any different than a publisher paying a writer to create content which it will then develop (make available / prioritize) “in part” to others online?

(9) Development: Other than “Good Samaritan” the term development is likely the second most important and misapplied terms within Section 230. The courts have consistently and improperly applied (development… in part) to subsection 230(c)(2) in an attempt to harmonize Section 230(c)(1)’s misinterpretation which consequently eviscerated the purpose and application of 230(c)(2). In other words, the courts tried to fix their application mistake in Section 230(c)(1) by wrongly applying development to 230(c)(2) thus creating an even bigger mistake and rendering Section 230 entirely useless. Put another way, currently 230(c)(1) wrongly immunizes everything you do as “a publisher” despite its illegality or motive including removing materials which renders 230(c)(2) superfluous since removing content is something a publisher does and to harmonize that initial mistake “development… in part” was wrongly applied to 230(c)(2) rendering 230(f)(3)’s definition of a content provider useless which then can no longer be applied to 230(c)(1). It’s a closed loop immunity from anything and everything. Defining development as “any action to solicit, expound, make available, modify, manipulate, advance or promote the growth of material especially by deliberate effort over time”, serves to properly define the term development in line with its original proper purpose and meaning.

Section 230 is not necessarily broken. The law is far too vague and it simply needs to be refined in order to guide the courts to properly comport with the legislative purpose and policy intended for Section 230. My lawsuit pointed out glaring misinterpretation issues. We initially asked the courts whether Section immunizes illegal anticompetitive misconduct. The courts determined that Facebook could engage in anticompetitive misconduct provided they acted as “a publisher”. That is absolutely and fundamentally wrong. Section 230(c)(1) does not and was never intended to immunize any editorial conduct whether legal or especially if illegal. It defies logic to think Congress intended to legalize illegal behavior. We explained all of this to the courts but the courts failed to understand Section 230 whether by ignorance or whether by intent. Facebook seemingly got away with it, since the Supreme Court failed to act to intervene. The precedent that this has left in its wake is dangerous because in invites anticompetitive behavior relying upon this decision only to find out that anticompetitive behavior is in fact illegal as was determined by the very same 9th Circuit Court of Appeals only 4 months later.

We must ask ourselves, how did two panels of the very same court, concurrently consider the very same question of anticompetitive illegality and come to two diametrically opposed decisions that cannot be legally reconciled? Is Section 230 to vague or is it the courts are denying everyone Due Process? Section 230 cannot both immunize anticompetitive misconduct and also not immunize anticompetitive misconduct. Regardless of whether the Fyk decision or the Enigma decision is correct of not, one of them MUST be WRONG!

Here the 9th Circuit Court did not provide equal protection under the law. It has set two standards for online anticompetitive misconduct. If you are Malwarebytes you cannot engage in anticompetitive behavior under the CDA Section 230 but if you are Facebook, you can engage in anticompetitive misconduct. One decision is obviously wrong. Put simply, the courts have failed to provide Due Process in regards to the application of Section 230. They did not consider most if not all of our argument which is inline with the Enigma argument and in doing so, have set a dangerous precedent that arbitrarily immunizes illegal behavior. This judgment cannot stand if there is to be justice in this nation!

We have recently filed a motion to reconsider because of the extraordinary circumstances surrounding this catastrophic decision. We have challenged the courts to either reconcile these two decisions or vacate the Fyk judgement since the most logical point to determine immunity would begin at 230(c)’s “Good Samaritan” provision (as the Enigma case concluded) rather than at 230(c)(1) which follows 230(c) (as the Fyk case concluded). If the courts fail to see their monumentally incorrect error by not immediately vacating the Fyk judgement and remanding this case for trial, we will be forced to take action against the United States. Our intention would be to sue the United States under at least Article 1 of the 14th Amendment (Due Process) for Section 230’s unconstitutionality. Whether the courts determine Section 230 is void for vagueness (leading to arbitrary decisions) or it determines that Section 230 aligns with the proper “MODEST” immunity interpretation we have defined, the result is the same. The judgement rendered in the Fyk case would have to be vacated because the law is either unconstitutional or the law applies as we have defined. The legislative amendments I have proposed, only helps to narrow the understanding and guide the courts in the proper application and understating of Section 230 moving forward.

Author: Jason Fyk

Email: jason@jasonfyk.com

Twitter @jasonfyk

P.S. This battle wages on. If you want to help support my efforts to correct this obvious injustice please consider helping by donating here: https://allfundit.com/fund/fyk230