Leftist publications and pundits are rubbing their hooves in glee at the Department of Justice’s response to our recent lawsuit challenging Section 230 of the Communications Decency Act, which provides immunity from lawsuits to Facebook, Twitter, and YouTube, thereby permitting these social media giants to engage in government-sanctioned censorship and discriminatory business practices free from legal challenge.
In order for us to sue Facebook (which is our intent), we first need to knock out this federal immunity statute, which prevents us from suing Facebook. Our lawsuit is therefore against the federal government. We knock out the immunity, and then we can sue Facebook, Twitter, and YouTube.
In response, the Justice Department simply tried to dodge the issue, saying we were suing the wrong entity. Our lawyers are preparing a full-throated response, but meanwhile, the left is crowing: this little hit piece about our case is filled with hyperbole and nonsense. The government filed a very predictable motion that, unsurprisingly, raises two issues: our standing to sue and state action. To have standing to sue, one must show an injury in fact that is fairly traceable to the action one is challenging, and that can be redressed by the court. The government concedes in its motion that we have shown that.
However, the government is arguing that the injury is from the social media giants and thus not fairly traceable to them, and therefore the injury is also not redressable by the court. But “fairly traceable” does not require a direct injury from the entity one is suing. If the action we are challenging materially increased the probability of injury, we have met that standard. And we clearly have: as everyone knows, the only reason why social media can discriminate against us the way they do is because of the immunity granted by the federal government.
The second argument that the Justice Department makes in its response to us is related in many ways to the first. The DoJ argues that there is no constitutional violation because the harm caused (the censorship) was by a private actor (social media). That is generally true, but the Supreme Court has declared that the government is responsible when it enacts laws that change the legal relationship between two groups, including the selective withdrawal from one group of legal protections against private acts, regardless of whether the private acts can be attributed to the government — and that is precisely the situation here.
In short, do we have responses to the government’s arguments? Absolutely. Can we guarantee that the judge will agree with us? No plaintiff can ever do that, and certainly not in the types of cases we bring. If the district court judge dismisses our case, will we pursue this further, including possibly to the Supreme Court? Yes. This issue is too important. With this power of censorship, social media could seriously influence this presidential campaign, and indeed, is already doing so.
For years I have documented the outrageous bias of Facebook’s speech policies. These are notoriously one-sided — those who oppose jihad terror, support Israel, and stand against the most brutal and extreme ideology on the face of the earth (sharia) have been systematically blocked and banned. Just last June, Facebook took down my page and blocked me after a devout Muslim opened fire on a gay nightclub in Orlando, Florida. Facebook said they took down my page because of their rule against “hateful, obscene, or threatening” content.
But it is not hateful, obscene, or threatening to oppose jihad terror such as we saw in Orlando and in so many other places. Truth is not hateful or obscene. What is hateful, obscene, and threatening is that Facebook is moving to silence everyone who speaks honestly about the motivating ideology behind such attacks. To get at Facebook and the other social media giants, we have to challenge the government statute first.
The left needs to handicap and shut down the opposition, because its positions do not stand up to refutation and cogent analysis. That’s why the “liberals” are working hard to shut down free speech. Liberal, indeed. But we will continue to fight them every step of the way.
Article reposted with permission from PamelaGeller.com
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