Title 47 U.S. Code Section 230 of the Communications Decency Act has been widely misunderstood and misapplied by the California court system. California specifically, because most technology companies reside on the west coast and where are almost all tech related cases are ultimately handled, in California’s 9th Circuit Court of appeals. Rarely does a court outside of the 9th Circuit, ever handle a case that involves Section 230 immunity consideration. As a result, the 9th Circuit Court has almost exclusively interpreted (i.e., misinterpreted) Section 230.
The Supreme Court has never interpreted Section 230 and it leaves us wondering why? Typically, the Supreme Court takes a case for one of three reasons; (1) a Habeas Corpus when someone is facing the death penalty, (2) a Constitutional Challenges when a law itself is being challenged based on its Constitutionality, and (3) a Circuit Court conflict arises in which two independent Circuit Court decisions, are in conflict with one another. Since the 9th Circuit Court has handled almost all technology cases, there has never really been a Circuit Court conflict in which the Supreme Court has been compelled to act. Ironically, the 9th Circuit Court has conflicting decisions within its own Circuit, a matter the Supreme Court has so far, decline to take up (see: Fyk vs. Facebook *currently in the 9th Circuit Court of Appeals for the second time).
States, such as Florida and Texas, have been inclined to enact complex and, for the most part, unconstitutional laws to stop overreaching tech censorship, to little avail. Personally, I have been engaged in active litigation, involving Section 230 protections, since 2018. Recently, I filed a case of first impression, Constitutional Challenge of Section 230 in the District DC Court (see: Fyk vs United States). This case will likely make its way to the Supreme Court. And, more recently, I personally redrafted Section 230 legislation to realign the protections of the statute with its original legislative intent, the interest of the public, and the Constriction (see: the Online Freedom Act).
However, I’d like to also propose a solution for the states. A solution that could dramatically help resolve some of the issues we face with Big Tech censorship and help restore our Constitutional freedoms online. I’ve already advanced a Constitutional Challenge that the SCOTUS should be inclined to address, and personally drafted proposed Federal legislation to replace Section 230 properly, but I have not yet encountered a Circuit Court conflict. My proposal is for your state to enact the Override Forum Selection Act (“OFCA”). In essence; if a tech company does business in ‘your state’, the state law (i.e., the OFCA) overrides the corporation’s forum selection clause, and the case stays (i.e., is litigated) in your state. As a result, new judges would interpret Section 230 (hopefully properly), it would give your state citizens a fair shake in court, and in time, create a Circuit Court conflict, thus forcing the SCOTUS to finally handle the Circuit Court conflict over Section 230’s proper interpretation.
Forum Selection Clause: “In Stewart Organization, Inc. v. Ricoh Corp, … the Court stated that a forum selection clause is not controlling but is a “significant factor” for a court to consider when deciding whether it will transfer a case under §1404(a).” … “Forum selection clauses have evolved from being nearly inoperative to controlling unless exceptional circumstances exist. Exceptional circumstances appear to exist when there are compelling public interest factors under §1404(a), or when there is a basis to invalidate the forum selection clause itself.”
Technology company’s forum selection clauses are “not controlling” and nothing in Section 230 precludes a private corporation’s forum selection policy being overridden by state law. There are clearly “exceptional circumstances” and a “compelling public interest” at play here, therefore the state overriding the tech company’s policy, is an easy and efficient means to restore some measure of freedom and fairness online. The companies are still afforded Due Process while the state is simultaneously affording the individual plaintiff, his or her Due Process (i.e., given a fair hearing).
If you are concerned about Section 230’s overreach, please consider our recommendation to Override technology company’s Forum Selection Clause. I would be happy to draft the appropriate Bill, in a personal capacity, if your state is interested.