Op-Ed: The Right to Free Speech on the Internet May Be Over
James Madison once argued that the most important word in “the right to free speech” is “the” because it means the right preexisted any potential abridgment.
That simple distinction saved free speech in America. The very same distinction could save free speech on the internet.
Section 230(c)(1) of the Communications Decency Act (the so-called 26 words that created the internet) reads, “Treatment of Publisher or Speaker: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230 does not say “a publisher”; it says “the publisher,” and for good reason.
In the English language, a definite article, such as the word “the” in “the publisher,” is used to denote particular, specified persons or things. “The publisher,” in the context of Section 230, is the particular or specified publisher who created and/or developed the information. In other words, “the publisher” is not just any unspecified publisher (which could include the “provider or user”); “the publisher” is specifically the known publisher of the story.
The known publisher in Section 230 is “another information content provider” (i.e., anyone other than the “provider or user”), because the content provider has already published the information (i.e., it preexists the provider or user). Therefore, “the publisher” cannot possibly be the “provider or user of an interactive computer service,” because “the (known) publisher or speaker” preexists the provider’s or user’s involvement in the story.
Despite this seemingly fundamental understanding of the English language, courts have erroneously substituted the term “a publisher” for “the publisher” all too often and, in doing so, changed the entire meaning and application of Section 230.
For example, the Barnes v. Yahoo three-part “immunity test” (because Section 230 is technically not immunity from liability) reads: “[i]mmunity from liability exists for ‘(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.’”
The Barnes three-part immunity test is inconsistent with the actual text of the statute. Compare Barnes to the three-part treatment test used in Henderson v. Public Data, which accurately quotes and applies Section 230: “The defendant is a provider or user of an interactive computer service; (2) the plaintiff’s claim holds the defendant responsible ‘as the publisher or speaker of any information’; and (3) the relevant information was ‘provided by another information content provider.’”
That distinction is subtle but significant. As a result of conflating “the” with “a,” some courts, in some circumstances, get it right (i.e., they read Section 230 as not protecting any publishing conduct at all), while other courts, in other circumstances, get it wrong (i.e., they read Section 230 as protecting all publishing conduct — or as absurd “super-immunity,” as Sen. Ted Cruz called it in his Gonzalez v. Google amicus).
It is absurd to think that Congress intended to prevent an interactive computer service provider or user from being treated as itself when it acts unlawfully (i.e., as “a” secondary publisher), yet that is exactly what has transpired in almost every single court case since Day 1. Section 230 was misread and misapplied as absurd “super-immunity.”
On Feb. 7, 2023, I filed what is likely the most important petition for writ of certiorari in modern times. It was a petition that could very well have determined whether free speech continues to exist or dies on the internet, and it all hinged (once again) on the most important word in “the right to free speech” — “the.”
As the petition notes, “this subtle, yet critical mistake — using ‘a’ and ‘the’ interchangeably in ‘the publisher or speaker’ … is the genesis of the mistaken interpretation of §230(c)(1), and the origin of the confusion surrounding §230’s proper application. … Once ‘the publisher’ is identified for the purposes of §230(c)(1), the rest of the statute’s intended purpose is clear.”
During the Gonzalez v. Google oral argument, Justice Brett Kavanaugh said, “To pull back now from the interpretation that’s been in place [i.e., the status quo] would create a lot of economic dislocation, would really crash the digital economy with all sorts of effects on workers and consumers, retirement plans and what have you, and those are serious concerns and concerns that Congress … could account for.
“We are not equipped to account for that. So are the predictions of problems overstated? If so, how? And are we really the right body to draw back from what had been the text and consistent understanding in courts of appeals?”
Congress wrote what it wrote. The legislation does not need to be changed. It was not Congress that strayed from the text of Section 230; it was the lower courts that decided to legislate from the bench. In doing so, the courts have created the very internet monsters they now are concerned about hurting.
We must ask ourselves: Should courts continue with the status quo because of the economic concerns of Big Tech, or should the courts protect the interest of the public and apply the statute as actually written by the legislature? I say the latter.
We gave the Supreme Court the right case and the right solution to fix Section 230 once and for all, but unfortunately, on Monday our petition was DENIED.
It would appear that the Supreme Court is more concerned about the status quo and the economic interests of Big Tech companies than the interests of the public and our constitutional rights. The right to free speech on the internet may be over.
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