Channeling Voltaire: Does a great civilization survive after annihilating free expression?
Silencing political opinions based on partisan bias is not an act of good faith that would justify an award of federal statutory immunity.
A. Section 230 Immunity
Claims that social media accounts were inappropriately terminated generally are barred under Section 230 of the Communications Decency Act (CDA”) (codified as 47 U.S.C. § 230). Lawsuits against Twitter and Facebook to date have been remarkably unsuccessful. In enacting the CDA, “Congress carved out a sphere of immunity from state lawsuits for providers of interactive computer services to preserve the ‘vibrant and competitive free market’ of ideas on the Internet.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009). To carry out the CDA’s purposes, “courts have generally accorded Section 230 immunity a broad scope.” Id. The CDA “established a general rule that providers of interactive computer services are liable only for speech that is properly attributable to them.” Id.
Section 230 states in part, that “[n]o 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.” 47 U.S.C. § 230(c)(1). Federal courts have recognized that “[b]y its plain language,” this provision of the CDA, “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). The practical effect of the immunity, “precludes courts from entertaining claims that would place a computer service provider in a publisher's role.” Id. In short, “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” Id.
In Zeran, the court opined that the legislation was supposed to “encourage service providers to self-regulate the dissemination of offensive material over their services,” by granting them immunity from material published by third parties regardless of whether the interactive computer service provider took an active role in regulating the content therein. Id. at 331. That said, “§230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.” Id. To determine if Section 230 immunity attaches, a court must investigate: “1) whether Defendant is a provider of an interactive computer service; 2) if the postings at issue are information provided by another information content provider; and 3) whether the claims seek to treat the social media company as a publisher or speaker of third party content.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 564 F. Supp. 2d 544, 548 (E.D. Va. 2008), aff'd, 591 F.3d 250 (4th Cir. 2009).
B. Interactive computer service
The CDA defines ‘interactive computer service’ as ‘any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.’” Jefferson v. Zukerberg, No. CV RDB-17-3299, 2018 WL 3241343, at *5 (D. Md. July 3, 2018) (quoting 47 U.S.C. § 230(f)(2)). The “prototypical service qualifying for this statutory immunity [under § 230(c)(1)] is an online messaging board (or bulletin board) on which Internet subscribers post comments and respond to comments posted by others.” Hare v. Richie, No. CIV. ELH-11-3488, 2012 WL 3773116, at *15 (D. Md. Aug. 29, 2012) (quoting FTC v. Accusearch, Inc., 570 F.3d 1187, 1195 (10th Cir.2009)).
C. Information provided by another content provider
An “information content provider” is defined as “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.” 47 U.S.C. § 230(f)(3). The term “another information content provider” refers to any content not provided by the interactive computer service provider itself. See Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (“The reference to ‘another information content provider’ … distinguishes the circumstance in which the interactive computer service itself meets the definition of ‘information content provider’ with respect to the information in question.”). This means, for example, that Twitter or Facebook would not be immune from suit for content Twitter or Facebook themselves created and published directly, but they are immune from lawsuits stemming from content provided by other individuals hosted on their platforms. See, e,g, Sikhs for Justice, Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088, 1094 (N.D. Cal. 2015), aff'd, 697 F. App'x 526 (9th Cir. 2017) (“In other words, the CDA immunizes an interactive computer service provider that passively displays content that is created entirely by third parties, but not an interactive computer service provider that acts as an information content provider by creating or developing the content at issue.”).
This begs the question, when Twitter and Facebook openly announce their position that information about election fraud is “disputed”, one could argue that they are donning the cloak of “information content providers”. Notably, the CDA expressly excludes only four classes of claims from its broad grant of immunity. These include, claims involving a “Federal criminal statute,” “any law pertaining to intellectual property,” “any State law that is consistent with this section,” and “the Electronic Communications Privacy Act.” See 47 U.S.C. § 230(e)(1)-(4). The state law exception keeps the door wide open for state law breach of contract claims alleging a lack of good faith and fair dealing. Moreover, Section 230 expressly refers immunity applying only when the interactive computer service has acted in good faith.
D. Requirement to Act in Good Faith
In order to remain safely within the protective realm of Section 230 immunity, social media companies must be “acting in good faith”. Under California law, for example, a duty of good faith and fair dealing is imposed in every contractual situation. To state a claim for breach of contract under California law, plaintiffs must allege (1) the existence of a contract; (2) plaintiff's performance; (3) defendant's breach of the contract; and (4) damages flowing from the breach. CDF Firefighters v. Maldonado, 158 Cal. App. 4th 1226, 1239 (Cal. Ct. App. 2008). In California, every contract also carries with it an implied covenant of good faith and fair dealing. Wilson v. 21st Century Ins. Co., 42 Cal. 4th 713, 720 (2007) ("The law implies in every contract . . . a covenant of good faith and fair dealing"); Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal. 4th 85, 91 (1995) ("It is well settled that, in California, the law implies in every contract a covenant of good faith and fair dealing."). "A typical formulation of the burden imposed by the implied covenant of good faith and fair dealing is that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.
However, "[t]he implied covenant of good faith and fair dealing `cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.'" Lane v. Vitek Real Estate Indus. Grp., 713 F. Supp. 2d 1092, 1102 (E.D. Cal. 2010) (quoting Agosta v. Astor, 120 Cal. App. 4th 596, 607 (Cal. Ct. App. 2004)). "Absent [a] contractual right. . . the implied covenant has nothing upon which to act as a supplement, and should not be endowed with an existence independent of its contractual underpinnings." Waller v. Truck Ins. Exchange, Inc., 11 Cal. 4th 1, 36 (1995).
E. Simple Breach of Contract
The covenant of good faith and fair dealing, although implied in every contract, is used to interpret the contract and generally does not give rise to a separate cause of action, either in tort or contract. Therefore, an implied duty of good faith will be read into the performance of every agreement so that the court may evaluate whether the terms of an agreement have been breached. Restatement (Second) of Contracts § 205 (1985). The states generally do not recognize a claim for breach of covenant of good faith and fair dealing as an independent cause of action separate from the breach of contract claim since the actions forming the basis of the breach of contract claim are essentially the same as the actions forming the basis of the bad faith claim.
F. Good Faith and Political Bad Faith
Over the last six months, social media providers have been censoring account holders based upon political viewpoints expressed by the account holders. The social media providers claim that under their contractual terms of agreement with account holders, they are permitted to enforce their own rules of conduct and behavior. Granted, that is certainly true. But the terms of agreement do not expressly preclude or prohibit political discourse and public discussion of contentious issues arising from a hotly contested presidential election. The First Amendment does not apply to a common law private contract; but, having said that, it becomes problematic for Twitter or Facebook to attempt to argue that the intentional suppression of the Constitutionally protected right to free speech by social media providers would pass the “smell test” in a search for violations of good faith and fair dealing. The United States has survived the rancor, the sound, and the fury, of partisan politics for more than two centuries. Voltaire wrote: “It is clear that the individual who persecutes a man, his brother, because he is not of the same opinion, is a monster.” Moreover, according to Voltaire: “If you want to know who controls you, look at who you are not allowed to criticize.” Given his views on free speech, it becomes obvious why Voltaire made this, his most famous utterance: “Je ne suis pas d'accord avec ce que vous dites, mais je d‚fendrai jusqu'... la mort le droit que vous avez de le dire/ I do not agree with what you have to say, but I'll defend to the death your right to say it”.
At least until the 2020 elections rolled around, courts appeared to be willing to grant social media giants a wide latitude under Section 230. But going forward, the sounder approach might be simply to argue that the naked, unapologetic suppression and repression of First Amendment protected political speech does not constitute a good faith enforcement of contractual standards of conduct. Ironically, the First Amendment has been cited as a reason to curtail President Donald Trump’s activities on Twitter. In Knight First Amendment Inst. v. Trump, 953 F.3d 216 (2d Cir. 2020) the Second Circuit determined President Trump engaged in unconstitutional viewpoint discrimination by blocking certain users for publishing tweets with which he disagreed. The court found President Trump's Twitter account was a designated public forum and "the President violated the First Amendment when he used the blocking function to exclude the Individual Plaintiffs because of their disfavored speech." Knight First Amendment Inst. v. Trump, 928 F.3d 226, 239 (2d Cir. 2019).
In the last analysis, acting in good faith is the sine qua non of statutory immunity under Section 230. The fundamental right to make contracts is guaranteed by the Constitution, which forbids the government from arbitrarily depriving persons of liberty, including the liberty to earn a living and keep the fruits of one's labor. See, e.g., Lowe v. S.E.C., 472 U.S. 181, 228, 105 S.Ct. 2557, 86 L.Ed.2d 130 (1985) ("`It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose.'" (quoting Dent v. W. Va., 129 U.S. 114, 121-22, 9 S.Ct. 231, 32 L.Ed. 623 (1889)). Getting jettisoned from Twitter or Facebook has concomitantly demonetized thousands of users who were urged to utilize these platforms to promote their businesses. Undoubtedly Twitter and Facebook would argue they are not the guarantors of your business income. At least ostensibly that is true, but the riposte to such an argument would simply be that Congress never intended to destroy the livelihoods of Americans when Congress enacted Section 230 in 1996. Mike Lindell and My Pillow could possibly be the first test case of the good faith/First Amendment standard.