By  Jim Hoft
Guest post by Mark Langfan
The government has granted the power to censor the entire USA to Twitter, Facebook, and Google, but that power is unconstitutional. Op-ed.
In Kurt Vonnegutâs epic novel Catâs Cradle, Felix Hoenikker, a character who co-created the atomic bomb in the novel, also created another military weapon called âIce-Nine.â Ice-Nine is an alternate crystalline structure of water that is solid at room temperature, and acts as a seed crystal upon contact with ordinary water, causing it to âfreezeâ up and become a solid crystal.
The novel ends when some Ice-Nine accidently falls into the ocean, and causes the entire worldâs oceans, rivers and groundwater aquifers to apocalyptically freeze up into one huge solid crystal of Ice-Nine.
Why am I talking about Ice-Nine when writing on Section 230 of the Communications Decency Act? Because Section 230 is the âIce-Nineâ of free speech, and of democracy itself. Big Tech has used Section 230 to begin to âfreeze outâ certain free speech, and if allowed to continue, will destroy the very core of democracy.
Thus, Section 230 has become the enemy of the United States and of democracy, and it must be destroyed; or it will destroy the 1st Amendment, free speech, and the United States â in that order.
Imagine that you are an average residential consumer of electricity from your utility. Suppose you are politically motivated and send out emails to your friends, family, and your email list containing non-violent unquestionably 1st Amendment-constitutionally-protected speech. How would you feel if a newly created person called the âHuman content monitorâ of your supposedly neutral electric utility unilaterally decided that you were engaging in âobjectionableâ activities, and without notice or hearing turned off all power to your apartment? Youâd sue the electric company and the government on the basis that the electric company is a quasi-government-empowered entity that is violating your 1st Amendment right to free speech.
Unfortunately, many people donât have to imagine this scenario. Their supposedly neutral quasi-governmentally- empowered social media companies have âdiscoveredâ they were posting âobjectionableâ tweets against Democrats, and based on that alone ordered a shut-down of their social media service.
One should be able to sue the social media company on the basis that the social media company is a quasi-government-empowered entity that is violating your 1st Amendment. But guess what? The âGood Samaritanâ Section 230 of the âCommunications Decency Actâ (âCDAâ) empowers all the left-wing tech companies to quash your platform access merely because they believe âin good faithâ that your posts are âotherwise objectionable.â
The supposed âgood Samaritanâ provision has, in fact, become the incarnation of the Orwellian 1984 Ministry of Truth. The United States Government has unconstitutionally âsub-contractedâ the infinite power of total censorship to quasi-governmentally-empowered companies in clear facial violation of the 1st Amendment.
Here is 47 U.S. Code § 230 of the CDA â âProtection for private blocking and screening of offensive material,â which states, in full:
(c)Protection for âGood Samaritanâ blocking and screening of offensive material
(1) 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.
(2)Civil liability
No provider or user of an interactive computer service shall be held liable on account ofâ
(A)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
(B)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 (1).
This is legalese, so Iâm going to parse it for you. This current US law states that no internet company âshall be liableâ to any of its users if the internet company has âvoluntarilyâ censored âin good faithâ any material it deems to be âharassing, or otherwise objectionable, whether or not the censored material âis constitutionally protected.â
You are probably asking the obvious question: Why doesnât Congress just strike out the âwhether or not such material is constitutionally protectedâ part of the statute? Section 230 will never be amended because it is worth trillions to the small group of people who own those companies and they will pay off Democrats and Republicans alike to keep it from being changed, leaving them with the monopoly on censorship.
The billionaires who own these companies will fight to keep Section 230, so the only recourse is for it to be found unconstitutional. Only the 1st Amendment, and a real Supreme Court that wants to uphold the Constitution, can save our democracy, and with it, the United States.
Letâs go back to the electric utility hypothetical scenario for a second. If unbeknownst to the electric utility, a terrorist was using the utilityâs electric power to build a bomb, we would not want people to be able to sue the electric utility for providing electricity to terrorists. Thinking of the internet as a âutilityâ is the legitimate part of section 1 of Section 230, where the CDA doesnât want the owners of the âpipesâ of the internet, that merely act as conductors, to be sued if a user uses the pipes improperly.
The key legal point here is that section 1 of Section 230 makes the qualifying internet companies into quasi-governmentally authorized entities, essentially no different from electric, water, or gas utilities. On the flip side, however, the government would be hard-pressed to claim it was constitutional under the 1st Amendment for the governmentally empowered electric utilities, even with notice and hearing, to proactively turn off someoneâs electricity because the person was engaging in âconstitutionally protectedâ behavior that the government found âharassingâ or âotherwise objectionable.â
The essence of section 1 of Section 230 means that the internet companiesâ pipes act merely as âpipes,â and that they donât discriminate what goes through them. For example, in Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997), the immunities section of the Good Samaritan protections of Section 230 protected AOL when it allowed material that harmed people to be published.
But Zeran v. AOL constitutionally validated the Section 230 immunities only when the internet company published harmful material, not when the internet company censored what it defined as âharmfulâ but âconstitutionally protectedâ material. The 1st Amendment doesnât prohibit the governmentâs allowing any kind of speech, it prohibits the government from censoring speech. Zeran found the immunity of Section 230 to be constitutional only when information was published by the internet company, not when the internet company censored constitutionally protected speech.
In section 2 of Section 230, the government is subcontracting out the unconstitutional power to censor âconstitutionally protectedâ speech to the quasi-governmentally-mandated internet companies. However, if under the 1st Amendment, the United States does not have the right to censor âconstitutionally protectedâ speech in the first place, how is it constitutional for the government to sub-contract the power to censor to a quasi-governmentally-empowered private company?
It doesnât. And that is the core of why Section 230 is facially unconstitutional as to its empowering internet companies to censor speech in stark and clear violation of the 1st Amendment.
There are other arguments that I will attend to in later articles. Those issues include the claim that the internet companies who politically tilt the scales of content are, de facto, becoming âpublishersâ in violation of Section 230. In addition, a tri-partite monopoly has developed between Google, Facebook, and Twitter. The result is that not only is Section 230 facially unconstitutional, it is, as applied, unconstitutional in that the government has sub-contracted the power to censor the entire United States of America to a single three-headed monopoly.
In conclusion, Section 230 will never be amended to cure the gross constitutional defect because people with unlimited funds will pay many millions of dollars to Congress to protect the billions that depend on Section 230 staying exactly how it is.
Therefore, the only way to defeat this existential threat to democracy and the United States is for the Supreme Court to find the censorship provisions of Section 230 facially unconstitutional. Otherwise, we will have just appointed Facebook, Google, and Twitter as George Orwellâs 1984 âMinistry of Truth,â and this three-headed monster will rule America instead of its 360 million people.
This article appeared originally in an OpEd on Israel National News.