Categoria: § 230 Communication Decency Act

Techdirt.com pubblica l’atto di citazione di Trump 7 luglio 2021 contro Facebook (Fb)   che nei mesi scorsi lo bannò.  E’ una class action.

Il link diretto è qui .

L’atto è interessante e qui ricordo solo alcuni punti sull’annosa questione del rapporto social networks/primo emendamento.

Nella introduction c’è la sintesi di tutta l’allegazione, pp. 1-4.

A p. 6 ss trovi descrizione del funzionamneot di Fb e dei social: interessa spt. l’allegazione di coordinamento tra Fb e Tw, § 34 e la piattaforma CENTRA per il monitoraggio degli utenti completo cioè  anche circa la loro attività su altre piattaforme ,  § 36 ss. .

 Alle parti III-IV-V l’allegazione sul coordinamenot (anche forzoso, sub III, § 56)  tra Stato  Federale e piattaforme.  Il che vale a preparare il punto centrale seguente: l’azione di Fb costituisce <State action> e dunque non può censurare il free speech:

<<In censoring the specific speech at issue in this lawsuit and deplatforming Plaintiff, Defendants were acting in concert with federal officials, including officials at the CDC and the Biden transition team. 151.As such, Defendants’ censorship activities amount to state action. 152.Defendants’ censoring the Plaintiff’s Facebook account, as well as those Putative Class Members, violates the First Amendment to the United States Constitution because it eliminates the Plaintiffs and Class Member’s participation in a public forum and the right to communicate to others their content and point of view. 153.Defendants’ censoring of the Plaintiff and Putative Class Members from their Facebook accounts violates the First Amendment because it imposes viewpoint and content-based restrictions on the Plaintiffs’ and Putative Class Members’ access to information, views, and content otherwise available to the general public. 154.Defendants’ censoring of the Plaintiff and Putative Class Members violates the First Amendment because it imposes a prior restraint on free speech and has a chilling effect on social media Users and non-Users alike. 155.Defendants’ blocking of the Individual and Class Plaintiffs from their Facebook accounts violates the First Amendment because it imposes a viewpoint and content-based restriction on the Plaintiff and Putative Class Members’ ability to petition the government for redress of grievances. 156.Defendants’ censorship of the Plaintiff and Putative Class Members from their Facebook accounts violates the First Amendment because it imposes a viewpoint and content-based restriction on their ability to speak and the public’s right to hear and respond. 157.Defendants’ blocking the Plaintiff and Putative Class Members from their Facebook accounts violates their First Amendment rights to free speech. 158.Defendants’ censoring of Plaintiff by banning Plaintiff from his Facebook account while exercising his free speech as President of the United States was an egregious violation of the First Amendment.>> (al § 159 ss sul ruolo di Zuckerberg personalmente).

Ne segue che il safe harbour ex § 230 CDA è incostituzionale:

<<167.Congress cannot lawfully induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Norwood v. Harrison, 413 US 455, 465 (1973). 168.Section 230(c)(2) is therefore unconstitutional on its face, and Section 230(c)(1) is likewise unconstitutional insofar as it has interpreted to immunize social media companies for action they take to censor constitutionally protected speech. 169.Section 230(c)(2) on its face, as well as Section 230(c)(1) when interpreted as described above, are also subject to heightened First Amendment scrutiny as content- and viewpoint-based regulations authorizing and encouraging large social media companies to censor constitutionally protected speech on the basis of its supposedly objectionable content and viewpoint. See Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996).170.Such heightened scrutiny cannot be satisfied here because Section 230 is not narrowly tailored, but rather a blank check issued to private companies holding unprecedented power over the content of public discourse to censor constitutionally protected speech with impunity, resulting in a grave threat to the freedom of expression and to democracy itself; because the word “objectionable” in Section 230 is so ill-defined, vague and capacious that it results in systematic viewpoint-based censorship of political speech, rather than merely the protection of children from obscene or sexually explicit speech as was its original intent; because Section 230 purports to immunize social media companies for censoring speech on the basis of viewpoint, not merely content; because Section 230 has turned a handful of private behemoth companies into “ministries of truth” and into the arbiters of what information and viewpoints can and cannot be uttered or heard by hundreds of millions of Americans; and because the legitimate interests behind Section 230 could have been served through far less speech-restrictive measures. 171.Accordingly, Plaintiff, on behalf of himself and the Class, seeks a declaration that Section 230(c)(1) and (c)(2) are unconstitutional insofar as they purport to immunize from liability social media companies and other Internet platforms for actions they take to censor constitutionally protected speech>>.

Come annunciato, ha fatto partire anche analoghe azioni verso Twitter e verso Google/Youtube e rispettivi amministratori delegati (rispettivi link  offerti da www.theverge.com) .