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Joyce Clark Unfiltered

For "the rest of the story"

Disclaimer: The comments in this blog are my personal opinion and may or may not reflect an adopted position of the city of Glendale and its city council.

Today, July 7, 2021, former President Trump announced that he will be the lead in a civil class action suit against Twitter, Google and Facebook as well as their founders and/or CEOs, Jack Dorsey (founder of Twitter), Sundar Pichai (CEO of Google) and Mark Zucherberg (co-founder of Facebook) personally.

The results of such an effort are obviously, unknown but we can expect such a suit to take years to reach the Supreme Court for final settlement. To understand what is occurring there are basic concepts that we should understand – the First Amendment, 47 U.S. Code Section 230 and the concept of the public square.

The First Amendment states, Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” It specifically guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely.

The Communications Decency Act of 1996 includes Section 230. The law was established 25 years ago when the internet was in its infancy. Since that time, the internet has matured at warp speed and the seminal question becomes does a trillion- or billion-dollar private company still need the protections provided in Section 230? The findings in Section 230 recognize, “The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity…Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.”

It protects information content providers from civil liability,  “No provider or user of an interactive computer service shall be held liable on account of— 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 objectionable, whether or not such material is constitutionally protected; or 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.” An information content providermeans 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.

We will hear the term, public square, used often as this suit makes its way through the judicial system. Merriam Webster defines the public square as, “an open public area in a city or town where people gather.” The public square in the digital age has no shape or no physical place but is generally accepted to be any place or space where information and opinion can be shared and includes newspapers, magazines, books, websites, blogs, songs, broadcast stations and channels, street corners, theaters, conferences, government bodies and more.

One Supreme Court decision of note in 2017 recognized broadly in principle that using social media is a constitutional right. The case is Packingham v. North Carolina. North Carolina passed a law prohibiting sex offenders from accessing social media and made it a felony if they posted on any social media platform.

The Supreme Court viewed it as a free speech rights issue and unanimously held that states cannot broadly limit access to social media because cyberspace “is one of the most important places to exchange views.” “A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more,” Justice Anthony Kennedy wrote.

The one aspect that will not be addressed in this class action suit is the anti-trust issue. There is no dispute that Google, Twitter and Facebook are billion dollar monopolies. That will not be the issue of this suit but rather violations of our First Amendment free speech rights. The final decision is unknown and there will be twists and turns in this saga. Stay tuned and hang onto your hats…it’s going to be a bumpy ride.

© Joyce Clark, 2021       


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