California GOP Rep. Devin Nunes filed a major lawsuit seeking $250 million in compensatory damages and $350,000 in punitive damages against Twitter and a handful of its users on Monday, accusing the social media site of “shadow-banning conservatives” to secretly hide their posts, systematically censoring opposing viewpoints, and totally “ignoring” lawful complaints of repeated abusive behavior.
In a complaint filed in Virginia state court on Monday, obtained by Fox News, Nunes claimed Twitter wanted to derail his work on the House Intelligence Committee, which he chaired until 2019, as he looked into alleged and apparent surveillance abuses by the government. Nunes said Twitter was guilty of “knowingly hosting and monetizing content that is clearly abusive, hateful and defamatory – providing both a voice and financial incentive to the defamers – thereby facilitating defamation on its platform.”
The lawsuit alleged defamation, conspiracy and negligence, as well as violations of the state’s prohibition against “insulting words” — effectively fighting words that tend towards “violence and breach of the peace.” The complaint sought not only damages, but also an injunction compelling Twitter to turn over the identities behind numerous accounts he said harassed and defamed him.
There’s one major wrinkle in Nunes’ plan: Section 230 of the 1996 Communications Decency Act, which exempts social media companies from the libel and defamation liabilities normally incurred by publishers.
Nunes’ lawyer has an argument ready to answer a CDA Section 230 objection:
Although federal law ordinarily exempts services like Twitter from defamation liability at all levels, Nunes’ suit said the platform has taken such an active role in curating and banning content — as opposed to merely hosting it — that it should face liability like any other organization that defames.
“Twitter created and developed the content at issue in this case by transforming false accusations of criminal conduct, imputed wrongdoing, dishonesty and lack of integrity into a publicly available commodity used by unscrupulous political operatives and their donor/clients as a weapon,” Nunes’ legal team wrote. “Twitter is ‘responsible’ for the development of offensive content on its platform because it in some way specifically encourages development of what is offensive about the content.”
I’m no lawyer, but it sounds like Nunes’ attorney is arguing that Twitter fails the three-pronged test used to determine if a defendant qualifies for Section 230 protection. Here are the criteria from the article linked above:
- The defendant must be a provider or user of an interactive computer service.
- The cause of action asserted by the plaintiff must view the defendant as the publisher or speaker of the harmful information at issue.
- The information must be provided by another information content provider. That is, the defendant must not be the information content provider of the harmful information at issue.
It looks like Nunes’ lawyer is arguing that Twitter shouldn’t enjoy Section 230 immunity from liability in this case because point 3 doesn’t apply. Since Twitter encouraged and helped develop the harmful content, they’re not just platform providers; they’re content providers.
On a related note, guys like Nick Fuentes have been pushing for the revocation of Twitter, Facebook, and Google’s Section 230 immunity based on similar logic.
The idea goes like this: If you run a digital public square, which Twitter CEO Jack Dorsey called his company, you should have two choices. One, you can let all users speak their minds uncensored. In that case, you’re acting as a platform provider, not a publisher, and should be immune from liability.
Two, you can actively curate the platform and censor offending speech. But since you’re taking an active hand in the kind and quality of content that appears on your platform, you’ve stepped over a line and become a publisher subject to liability.
Right now, Big Social gets to freely straddle the line. Nunes is right. They should have to pick a lane and stay in it.
We’ll see if the pushback against Big Tech gains steam, and which direction it heads in. A certain executive order we were promised a while back would help.
In the meantime, escape to a future where not only is offending speech legal, so is hiring a mercenary to cluster bomb the guy who offended you!
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