230's “Intelligible Principle”

The “Good Samaritan” provision.

“Good Samaritan”

Snapchat created a speed filter which rewarded a user with new filters based upon how fast they were moving. Someone used the filter at 120mph and ended up crashing, killing themselves and two children. The family sued for negligence. Snapchat attempted to invoke 230(c)(1) immunity claiming they can not be treated as “the publisher” for their own negligent conduct. (This is the same defense Facebook used in Fyk vs. Facebook in regards to anticompetitive conduct-both of which are illegal).

The 2nd Circuit Court determined that Section 230(c)(1) does not provide Snapchat 230 protections for negligence conduct. The 9th Circuit in Enigma vs. Malwarebytes came to a similar conclusion stating, “the “Good Samaritan” provision of the Communications Decency Act does not immunize blocking and filtering decisions based upon an anticompetitive [motivation].” Some so-called section 230 experts called the Enigma decision a fluke, even one self-proclaimed 230 expert (Eric Goldman) claimed “Justice Thomas Writes a Misguided Anti-Section 230 Statement “Without the Benefit of Briefing”–Enigma v. Malwarebytes.”

Justice Thomas’ Enigma statement, regarding section 230, was neither a fluke nor “misguided”. It is quite the opposite. As Justice Thomas accurately pointed out, “[t]his modest understanding [CDA Section 230] is a far cry from what has prevailed in court. Adopting the too-common practice of reading extra immunity into statutes where it does not belong.” Courts have granted “extra immunity” for a service provider’s own illegal misconduct not for the content. Justice Thomas noted the same, “(stating that §230 should not apply when the plaintiff sues over a defendant’s “conduct rather than for the content of the information”). My case addressed all of this and we seemed to be the “appropriate case” and briefing but unfortunately the Supreme Court denied our petition for writ of Certiorari.

Recently, we (myself and Callagy law) filed a motion 60b in the Northern District Court based upon new Enigma precedent, Justice Thomas’ Enigma Statement and now we have the 2nd Circuit Snapchat decision which all conflict with my judgement. We had asked a simple question, could Facebook engage in otherwise illegal anticompetitive editorial misconduct when restricting materials?

Our 9th Circuit panel said YES because 230(c)(1) provides Facebook protections from being treated as “a publisher” [*not “the publisher” such is the actual language of 230(c)(1)] and that “nothing in 230(c)(1) turns on the alleged motive for removing content.” In other words, 230(c)(1) is sovereign immunity from all illegal conduct. They were wrong.

In contrast, only four months later the 9th Circuit in Enigma vs. Malwarebytes (albeit a different 9th Circuit Court panel), rendered the exact opposite decision stating the “Good Samaritan” provision of the Communications Decency Act does not immunize blocking and filtering decisions based upon an anticompetitive [motivation].” This decision cannot legally coexist with or be reconciled with the Fyk vs. Facebook decision. I was denied Due Process.

The motivation behind any conduct or absence of conduct (action or omission) matters at the onset of litigation! The question is why?

The “Good Samaritan” provision of the CDA is what’s called the “intelligible Principle” upon which a quasi-legislative entity must base its regulations. “In J.W. Hampton v. United States, 276 U.S. 394 (1928), the Supreme Court clarified that when Congress does give an agency the ability to regulate, Congress must give the agencies an “intelligible principle” on which to base their regulations. This standard is viewed as quite lenient, and has rarely, if ever, been used to strike down legislation.” (Cornell law Nondelegation Doctrine)

The “Good Samaritan” provision of the Communications Decency Act (Section 230) is the Intelligible basis upon which all regulatory actions or omissions MUST be predicated to avoid contributory negligence. As described in Fyk vs. Facebook, the “Good Samaritan” provision is “for the good of others or society, in good faith, not for compensation, without gross negligence or wanton and willful misconduct.” Negligence and Anticompetitive conduct is not the conduct of a “Good Samaritan” In other words, the “Good Samaritan” motivation matters at onset of any Section 230 litigation.

Fyk vs. Facebook went all the way through the California courts and eventually petitioned the Supreme Court of the United States, even though 230 is a matter of national importance and Justice Thomas himself welcomed an appropriate case, the Supreme Court did not hear our case which addresses all of the principles of Section 230.

We recently filed a motion 60b in the Northern District of California, asking the court to vacate its prima facia wrong decision based upon the new Enigma vs. Malware bytes precedent. We may file a supplemental brief based upon the new Snapchat decision which proves the intelligible principle (Good Samaritan) must apply for the law to be Constitutionally Sufficient.

Ultimately, the Fyk vs. Facebook case should surpass dismissal, if not in the District Court, then in the 9th Circuit on appeal and if not in the 9th Circuit, we will once again petition the Supreme Court, a second time. Unlike our first attempt we now have new law, a matter of national importance and a Circuit Court conflict. It is my fervent hope the Supreme Court United States one day hears our “appropriate case” and helps to resolve this matter of national importance.

If that still fails then we will be forced to challenge the Constitutionality of Section 230 by suing the United States itself over Due Process violations under void for vagueness and or the Nondelegation doctrine. “Under [the] vagueness doctrine, a statute is also void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.” If my judgement stands, Section 230 has led to arbitrary prosecutions (arbitrary enforcement of 230 regulations) whereby my judgement directly conflicts with the Malwarebytes and the Snapchat decisions and the opinion of at least one Supreme Court Justice.

In summary, Section 230 is a quasi-legislative, Congressional delegation of function, to an independent agency, granting the authority to self-regulate offensive materials in good faith, predicated on the “Good Samaritan” intelligible Principle.

If the “Good Samaritan” provision is not considered the intelligible Principle, 230 is thereby unconstitutional under the nondelegation doctrine and/or if 230 leads to arbitrary regulation it is unconstitutional under the void for vagueness doctrine. The “Good Samaritan” principle must apply to all regulatory decisions uniformly (aka neutral public forum), including in my case (Fyk vs. Facebook) or I will be forced to challenge Section 230’s Constitutionality. I have not been afforded a single day in court, yet I have been proven to be right all along. That is extraordinary!

In conclusion, Section 230 is not necessarily broken, it is too vague, misunderstood, misinterpreted and misapplied by the courts but I intend to “FYK-s” section 230 and have recently proposed a legislative amendment to prevent any further confusion with Section 230 in the future. Section 230 does not need to be rewritten; it needs to be clarified and understood.

For more information and the proposed legislation see: https://jasonfyk.medium.com/does-section-230-provide-different-immunity-for-facebook-rather-than-malwarebytes-cb4415c77122