In 1996, Congress sought to protect an interactive computer service (“ICS”) provider from liability arising out of the ICS’s engaging (as a “Good Samaritan”) in voluntary restriction of offensive materials online in an effort to help protect our children from harmful web content and / or otherwise rid the Internet of filth; hence, the enactment of the Communications Decency Act (“CDA”), Title 47, United States Code, Section 230.1 Congress resolved this Internet indecency issue (or so they thought at the time, approximately twenty-five years ago before many ICSs like Facebook, Twitter, Instagram, and / or et cetera even existed) by delegating regulatory “agency” authority (Section 230’s civil liability protection) directly to private entities (ICSs).
Title 47, United States Code, Section 230 is an administrative law, which provides civil liability protection when a private entity (ICS) takes “any action voluntarily [ ] 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.” 47 U.S.C. § 230(c)(2)(A). Private entities (ICSs) are acting as regulatory agents of Congress. Agencies are delegated power by Congress…, to act as agencies responsible for carrying out certain prerogatives of the Congress (e.g., block or screen offensive materials). Agencies are created through their own organic statutes (e.g., Section 230), which establish new laws (e.g., Community Standards) and, in so doing, interpret, administer, and enforce those new laws. Generally, administrative agencies are created to protect a public interest (e.g., protect children from harm), not to vindicate private rights. Section 230 provides administrative agency authority (i.e., state action) to private entities. An administrative agency is “[a] government body authorized to implement legislative directives [e.g., block or screen offensive materials] by developing more precise and technical rules [i.e., “fill up the details,” see, e.g., Wayman v. Southard, 23 U.S. 1, 43 (1825)] than possible in a legislative setting. Many administrative agencies also have [ ] enforcement responsibilities.”2
Justice Thomas noted in Malwarebytes, Inc. v. Enigma Software Group USA, LLC, 141 S.Ct. 13 (2020) that:
courts have extended the immunity in §230 far beyond anything that plausibly could have been intended by Congress… Courts have also departed from the most natural reading of the text by giving Internet companies immunity for their own content [i.e., development in part by proxy]… . Courts have long emphasized nontextual arguments when interpreting §230 [i.e., proof-texting], leaving questionable precedent in their wake.”
Id. at 13-15 (emphasis added, internal citations omitted).
Most, if not all, cases seeking to expand Section 230 immunity rely on untwisting the “non-textual,” “questionable” interpretation of the statute. Most Section 230 cases wind up in the same California court system, since nearly all major technology companies reside in Silicon Valley and almost always have forum selection provisions included within their user terms of service (“TOS”). The California courts have consistently failed to address the most natural reading (i.e., harmonious reading) of the text by giving Internet companies immunity for their own content. Although Justice Thomas welcomed an “appropriate case” (“in 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,” id. at 14), the SCOTUS denied my Petition for Writ of Certiorari, in the Fyk v. Facebook case, which addressed many of the harmonious-reading and irreconcilability statutory conflicts.3
Statutory Construction Canons
A statute must be read as a whole.4 “[W]e are advised by the Supreme Court that we must give meaning to all statutory terms, avoiding redundancy or duplication wherever possible.” Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1168 (9th Cir. 2008) (citing Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 197 (1985)).5 And the Harmonious-Reading Canon and / or the Irreconcilability Canon (two closely related tenets) provide as follows. The Harmonious-Reading Canon provides that the provisions of a law should be interpreted in a way that renders them compatible, not contradictory: 6 “our task is to fit, if possible, all parts into a harmonious whole.” Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 100 (2012) (citing FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959)); see also, e.g., Lindh v. Murphy, 521 U.S. 320, 336 (1997) (courts should “accord more coherence” to disparate statutory provisions where possible). The Irreconcilability Canon provides that “[i]f a [statute] contains truly irreconcilable provisions at the same level of generality, and they have been simultaneously adopted, neither provision should be given effect.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 189 (2012).7 If the text of a statute contains “truly irreconcilable provisions” an irreconcilable conflict is determined to exist, and “the next inquiry is whether the provisions at issue are general or specific.” See, e.g., State v. Conyers, 719 N.E.2d 535, 538 (Ohio 1999) (internal citation omitted).
Courts are often asked to consider immunity under isolated statutory subsections (e.g., 230(c)(1) or 230(c)(2)), without considering Section 230 as a whole. Defendants typically cite questionable out-of-context precedent (i.e., proof-texting) to introduce the defendants’ understandable bias (because they are defending themselves) into the determination. This is known as “proof-texting,” which
is the practice of using isolated, out-of-context quotations from a document to establish a proposition in eisegesis [i.e., interpretation of a text by reading into it, one’s own ideas]. Such quotes may not accurately reflect the original intent of the author [e.g., Congress], and a document quoted in such a manner, when read as a whole, may not support the proposition for which it was cited… .8
When read as a whole, many cases are not harmonious or reconcilable with the “Good Samaritan” General Provision of Section 230.
Section 230’s “harmonious-reading” went astray as early as 1997. In Zeran v. America Online Inc., 129 F.3d 327 (4th Cir. 1997), the first appellate court to consider the statute erroneously held that, although the text of Section 230(c)(1) grants immunity only from “publisher” or “speaker” liability, it eliminates distributor liability too; that is, Section 230 confers immunity even when a company distributes content that it knows is illegal. This determination (without considering Section 230 as a whole) eliminated all liability (i.e., both active publishing and passive distribution), thus swallowing the purpose of the “very next subsection, which governs removal of content, §230(c)(2).” Enigma, 141 S.Ct. at 16. The Zeran decision rendered 230(c)(2) “mere surplusage” (i.e., redundant / superfluous) as early as 1997, and courts have spent more than two decades trying to reconcile this mistaken application of Section 230(c)(1). Under the most harmonious reading of the statute, Section 230(c)(1) applies to passive distributor liability protection (i.e., a platform – omission of action) and 230(c)(2) applies to an active distributor liability protection (i.e., publisher liability protection when blocking and screening offensive material).
Section 230 authorizes (under civil liability protection) an ICS to “voluntarily” block and screen information that it “considers” “objectionable.” When an ICS “considers” information, it is acting in a traditional editorial role. Section 230(c)(2) limits (i.e., narrowed provision) that editorial role to the exclusion of material. “Consideration,” however, also allows (by proxy) an ICS the editorial ability to decide what content is made available (i.e., advanced – developed in part). Development, in whole or in part, is the role of an Information Content Provider (“ICP”) by definition under Section 230(f)(3), thus the ICS’ role as an information content restrictor also allows (by proxy) the ICS to act as an ICP who can “knowingly distribute” unlawful information under civil liability protection. This is at odds with the “Good Samaritan” General Provision of the statute and creates an irreconcilable conflict between Sections 230(c)(2) and 230(c)(1). Information “consideration” (i.e., development in part by proxy) gave rise to the mistaken Zeran decision. Any information that is “considered” (i.e., active editorial consideration) and “allowed” (i.e., not restricted – knowingly chosen, advanced, or developed), provided in part, by the ICS, must be civilly liable or, as a result, all distribution / publishing liability is eliminated, including unlawful distribution / publishing (i.e., knowingly causing harm). The statute cannot be reconciled in a way that distinguishes between “development by proxy” (as a result of content restriction “consideration”) and “development in part” (as a result of information content provision).
Webster’s dictionary defines the word “voluntary” as follows: “done by design or intention; acting or done of one’s own free will without valuable consideration or legal obligation.”9 As another example of an irreconcilable statutory conflict, if a provider or user takes “any action voluntarily” (i.e., as a private actor under no obligation or for any consideration), it cannot seek “protection” because, if a provider or user seeks “protection” (i.e., the consideration), it must have taken its action under the legal obligation (i.e., as a state actor) to block and screen offensive material. The term “voluntarily” (a private function) is irreconcilable with its own obligatory / induced governmental function. A private entity cannot act “voluntarily” while simultaneously acting under obligatory governmental inducement. Simplified, Section 230 is an irreconcilable “voluntary mandate” (i.e., governmentally induced private function) – “voluntary mandate” is a prima facie oxymoron.
The Non-Delegation Doctrine
The non-delegation doctrine is a principle in administrative law that Congress cannot delegate its legislative powers to other entities [e.g., Section 230’s “voluntary” mandate]. This prohibition typically involves Congress delegating its powers to administrative agencies or to private organizations [ICSs].
In J.W. Hampton v. United States, 276 U.S. 394 (1928), the Supreme Court clarified that when Congress does give an agency the ability to regulate, Congress must give the agencies an ‘intelligible principle’ on which to base their regulations.
In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the Supreme Court held that ‘Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.’10
The Supreme Court has recognized that Congress could not delegate powers that were ‘strictly and exclusively legislative.’ Chief Justice John Marshall laid the groundwork for the ‘intelligible principle’ standard that governs non-delegation cases today. Marshall stated that if Congress delegates quasi-legislative powers to another body, it must provide a ‘general provision’ by which ‘those who act’ can ‘fill up the details.’ Therefore, Congress cannot give an outside agency free reign to make law, but it can authorize the agency to flesh out the details of a law Congress has already put in place. This became known as providing an ‘intelligible principle’ to which the agency is instructed to conform. The ‘intelligible principle’ could be anything in the ‘public interest, convenience, or necessity’ or considered ‘just and reasonable.’ Being put in such subjective terms gives agencies vast discretion when enacting new rules.11
The Court has contrasted the delegation of authority to a public agency, which typically is required to follow established procedures in building a public record to explain its decisions and to enable a reviewing court to determine whether the agency has stayed within its ambit and complied with the legislative mandate, with delegations to private entities, which typically are not required to adhere to such procedural safeguards.12
In Mistretta v. United States, 109 S.Ct., 647 (1989) Justice Scalia warned that “the scope of delegation is largely uncontrollable by the courts, we must be particularly rigorous in preserving the Constitution’s structural restrictions that deter excessive delegation [i.e., Section 230]. The major one, it seems to me, is that the power to make law cannot be exercised by anyone other than Congress, except in conjunction with the lawful exercise of executive or judicial power.” Id. at 678 (emphasis added).
Section 230 grants administrative agencies (here, private entities / ICSs), under the “intelligible principle” of a “Good Samaritan,” the authority to create any rule the ICS deems to be “in the public interest,” solely relying on the agency’s (here a private entity’s) own views and policy agenda rather than requiring Congress to set forth objective guidelines.
The Void for Vagueness Doctrine
1) A constitutional rule that requires laws to state explicitly and definitely what conduct is (in)actionable. Laws that violate this requirement are said to be void for vagueness. The Void for Vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. By requiring fair notice of what is actionable and what is not, the Void for Vagueness Doctrine also helps prevent arbitrary enforcement of the laws.
2) Under the Void for 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 enforcement of the law.13
Congress delegated agency power (through the enactment of Section 230) to private entities who are responsible for carrying out certain prerogative of the Congress (i.e., blocking or screening offensive materials). The agency, here the provider or user, establishes new laws (i.e., Community Standards) and interprets, administers, and enforces those new laws. A private entity’s (i.e., administrator’s) ability to create its own law (rules / standards), interpret, administer, and then arbitrarily enforce whatever it considers “objectionable” (i.e., “extensive” law protected under civil liability protection) has led to expansive arbitrary enforcements (i.e., bans, penalization, and punishment).
The Substantial Overbreadth Doctrine
Overbreadth is shorthand for the overbreadth doctrine, which provides that a regulation / law can sweep too broadly and prohibit protected rights. A regulation of speech, for example, is unconstitutionally overbroad if it regulates a substantial amount of constitutionally protected expression. Overbreadth is closely related to its constitutional cousin, vagueness. For example, a regulation of speech is unconstitutionally vague if a reasonable person cannot distinguish between permissible and impermissible speech because of the difficulty encountered in assigning meaning to language.14
Overbreadth doctrine is a principle of judicial review that a law is invalid if it punishes constitutionally protected speech or conduct along with speech or conduct that the government [i.e., delegated authority to a private entity] may limit to further a compelling government interest [e.g., block and screen offensive material]. A statute that is broadly written [e.g., Section 230(c)(2)(A): “any action voluntarily taken… to restrict access to or availability of material that the provider or user considers… whether or not such material is constitutionally protected”] which deters free expression can be struck down on its face because of its chilling effect even if it also prohibits acts that may legitimately be forbidden [i.e., actually offensive]. If a statute is overbroad, the court may be able to save the statute by striking only the section that is overbroad [which it cannot with respect to Section 230]. If the court cannot sever the statute and save the constitutional provisions, it may invalidate the entire statute.15
Section 230’s broad delegation of authority, combined with the courts’ broad interpretation, allows an ICS the ability to restrict any speech it “considers” “objectionable” (i.e., allowing development in part by proxy), even when the information is “constitutionally protected” speech. Section 230 is so overbroad that companies like Google, Facebook, and Twitter, for examples, have had a “chilling effect” (i.e., deterrence) on almost all online free expression. Being in Google, Facebook, or Twitter “jail” (i.e., denied of one’s liberty or property) for violating some “vague” Community Standard (i.e., being arbitrarily penalized for some quasi-legislative law) at the sole discretion (i.e., “consideration”) of a self-interested ICS (i.e., without congressional oversight, uniform enforcement, or judicial review) under the protection of Government (i.e., Congress’ civil liability protection that is Section 230) is repugnant to the Non-Delegation Doctrine, the Void for Vagueness Doctrine, and the Overbreadth Doctrine and depriving of one’s constitutional rights (e.g., First, Fifth, and Fourteenth Amendments).
The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law,”16 the Internet being no exception. I (Fyk vs. Facebook) was personally denied due process by the California courts and the SCOTUS, when a government authorized and purportedly fully immunized “agent” (Facebook), taking action under the aegis of government (Section 230), deprived me (which amounts to a government taking) of my liberty and property without so much as a single hearing on the matter.
Pursuant to Title 5, United States Code, Section 706, when an agency takes an agency action17 (here, the “agency” being a private persons),18
The reviewing court shall … (2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; … .19
“Immunity” from suit, means there is no reviewing court when an agency (i.e., a private entity) takes an ‘agency action’. Simply put, there is no review of any ICS’s rules, actions or enforced violations. Section 230 also lacks any ‘official agency’ qualifications. Cf, e.g., Title 47, United States Code, Section 154 – Federal Communications Commission. This ‘lacking’ of review and qualifications prevents virtually all judicial scope of review when a commercial private actor takes “any action voluntarily”, actions that arbitrarily restrict US citizen’s liberty or property (i.e., in good faith relative to 230(c)(2)(A))
In other words, just as Justice Scalia warned, Section 230 grants a private entity (i.e., self-motivated agent) the authority to create any rule it deems to be “in the public interest” and “immunizes” (i.e., denies due process) any / all actions “voluntary” taken when arbitrarily restricting the liberty and / or property of others that it considers “objectionable,” “whether or not such material is constitutionally protected” (i.e., contrary to constitutional doctrines and rights), solely relying on the agency’s own views and policy agenda rather than requiring Congress to set forth objective guidelines.
Section 230 is an immunity from suit. “According to the restrictive theory ‘the immunity of the sovereign is recognized with regard to sovereign or public acts of a state, but not with respect to private acts.’”20 In other words, a state should enjoy immunity from suits arising out of the exercise of their governmental functions (i.e., to block and screen offensive material), but not from suits arising out of the types of activities in which private parties engage (i.e., “voluntary” acts). In contradiction to the restrictive theory (i.e., “which excludes immunity for private acts such as commercial activities”), Section 230 allows both private function and governmental function, simultaneously. In Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009), the Ninth Circuit Court determined that, “any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230.” Id. at 1102 (internal citation omitted). If the Ninth Circuit was correct, that would also include unlawful behavior such as antitrust action such was the conclusion in Fyk vs. Facebook. All agency actions (especially private acts) cannot logically or legally be immune from suit.
In Carter v. Carter Coal Co., 298 U.S. 238 (1936), Justice Sutherland aptly wrote:
The power conferred upon the majority [ICS] is, in effect, the power to regulate the affairs of an unwilling [User]. This is legislative delegation in its most obnoxious form; for it is not even delegation [Section 230 does not confer power] to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business [Fyk v. Facebook]. … The difference between producing coal [operating an interactive computer and advertising service] and regulating [restricting] its production [materials] is, of course, fundamental. The former is a private activity; the latter is necessarily a governmental function, since, in the very nature of things, one person may not be [e]ntrusted with the power to regulate the business of another, and especially of a competitor. And a statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property. The delegation is so clearly arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions of this court which foreclose the question.
Id. at 311 (citing, inter alia, A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495, 537 (1935).
The Social Media Freedom Foundation (“SMFF”)21 non-profit charity organization (in conjunction with Fyk), challenges the constitutionality of the CDA’s delegation of regulatory authority that permits the discretionary restrictive actions of a commercial private entity. This discretionary enforcement resulted in the advancement of anti-competitive animus against Fyk (and many other users like Fyk), an animus that cannot, by definition, meet the qualification of “Good Samaritan” to enjoy the entitlement of complete immunity for any and all liability for any malfeasance or tortious conduct. Regulation, penalization, or deprivation in any form, carried out by an authorized government agent (i.e., whether private or public) “to fill up the details” (i.e., fill in the quasi-legislative rules) at the directive of Congress, must afford due process and free speech of the entity or person being regulated. The SMFF and Fyk lodges this facial and as applied constitutional challenge of Section 230, with the law being glaringly violative of the constitutional doctrines and / or statutory canons cited above.
The time has come for the courts to realign the scope of Section 230 with the realities of the modern Internet. Section 230 is a Congressional delegation of regulatory authority, granted to private entities, to regulate some area of human activity in a monitoring capacity, protected from civil liability. Section 230 is constitutionally repugnant, on its face and as applied, to the Non-Delegation Doctrine. Section 230 is constitutionally repugnant, on its face and as applied, to the Void-For-Vagueness Doctrine. Section 230 is constitutionally repugnant, on its face and as applied, to the Overbreadth Doctrine. Section 230 is statutorily repugnant to the Harmonious Reading Canon and the Irreconcilability Canon. Section 230 is repugnant to the freedoms ensured by the First, Fifth, and Fourteenth Amendments of the United States Constitution.
We risk forever losing the freedoms of this nation as whole (or, rather, we risk the continued loss and / or heavy abridgement of freedoms already experienced by way of the CDA over the last approximate twenty-five years) if something is not done soon, to put an end to Section 230’s unconstitutional delegation of regulatory authority and to put a stop to large commercial tech entities’ control over online free speech and the free market.
1 The CDA, entitled Protection for private blocking and screening of offensive material, can be found here: https://www.law.cornell.edu/uscode/text/47/230.
3 For a full understanding of what has transpired in the Fyk v. Facebook case, we would be happy to supply you with the book we filed with the SCOTUS. Just let me know and I will have my law firm send you a copy. Not only does the book include all filings in my case (other than a recently filed motion for reconsideration and associated appeal), it also includes copies of important articles / publications (like DOJ reviews and Executive Order) and decisions (like Justice Thomas’ Enigma Statement). And we would also be happy to provide copies of the aforementioned reconsideration-oriented filings, which are not found in our SCOTUS book (as they occurred after our SCOTUS filing) but highlight other recent supportive cases other than Enigma, like Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir. 2021).
4 Whole-Text Canon – “The text must be considered as a whole.”
5 Surplusage Canon – “If possible, every word and every provision is to be given effect … . None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” See id.
6 Harmonious-Reading Canon – “The provisions of a text should be interpreted in a way that renders them compatible, not contradictory.” See id.
7 See also id.
8 https://lenjoson.com/proof-texting/ (citing https://en.wikipedia.org/wiki/Prooftext) (definition of “eisegesis” added, see https://www.merriam-webster.com/dictionary/eisegesis).
15 https://definitions.uslegal.com/o/overbreadth-doctrine/ (emphasis added).
20 https://www.thefreelibrary.com/Foreign+sovereign+immunity+and+comparative+institutional+competence-a0401777155 (internal citations omitted).