After Facebook “censors” anti-Muslim posts, hate groups sue US gov’t

Gov’t lawyers now ask judge to dismiss lawsuit, as activists “lack standing.”

Cyrus Farivar – Oct 4, 2016 4:00 am | 256

US anti-Islam activists Pamela Geller (L) and Robert Spencer as seen here in Stockholm, Sweden, in 2012. Credit: AFP / Getty Images News

In July 2016, an organization called the “American Freedom Defense Initiative” joined another group called Jihad Watch in suing US Attorney General Loretta Lynch. Both entities felt slighted by Facebook, Twitter, and YouTube.

In their 25-page civil complaint, the two anti-Muslim activists and their respective organizations made a ludicrous argument. The groups claimed that as the country’s top cop, Lynch “enforces” Section 230 of the Communications Decency Act, a law that limits libel and other civil suits filed against websites, service providers, and other online publishers. However, the Communications Decency Act is a civil, rather than a criminal, statute.

AFDI—which the Southern Poverty Law Center designated last year as an anti-Muslim hate group—is the same group that opposed the proposed Park51 Islamic center that was to be built two blocks from Ground Zero. In 2013, the AFDI’s co-founder, Pamela Geller, and her fellow co-founder, Robert Spencer (who also founded JihadWatch), were banned from entering the United Kingdom for their “extremist” views.

Because their materials have been regularly removed from Facebook, Twitter, and YouTube, and because they have been threatened via those platforms, the plaintiffs collectively argue that the First Amendment rights of their groups have been violated. Therefore, the groups claim in their lawsuit, the target of the lawsuit is appropriately the attorney general. (Geller claimed publicly shortly after the suit was filed that she had, in fact, “sued Facebook.”)

According to the Electronic Frontier Foundation, Section 230 has enabled all kinds of modern websites, including Craigslist, Yelp, Facebook, and more. In short, relevant lawsuits should be brought against the relevant speakers or authors, rather than against the publishers. (Recently filed Section 230-related lawsuits against Twitter and Facebook have yet to succeed.)

Last week, lawyers representing the Department of Justice have asked a federal judge in Washington, DC, to throw out Geller and Spencer’s lawsuit. Why? Because the government said that the AFDI has no standing to sue, as the United States has no control over what Facebook or any other company does.

As Matthew Josephson, a DOJ attorney, wrote in the brief:

Instead, Plaintiffs’ allegations make clear that they are aggrieved by the decisions of private third parties, whom the United States does not control and whose actions it cannot predict. Plaintiffs’ alleged injury is also not redressable by their requested relief. Plaintiffs request that the Court declare Section 230 to be unconstitutional and to enjoin the Attorney General from enforcing this provision. But the Attorney General does not enforce Section 230 against private parties. To the contrary, this provision merely provides an immunity that a private party can invoke as a defense in a private civil lawsuit. Because the Attorney General does not enforce Section 230 against anyone, an injunction prohibiting such non-existent enforcement would be meaningless and would not redress Plaintiffs’ alleged injury.

Paul Alan Levy, a well-known First Amendment lawyer who has litigated numerous Section 230 cases, dubbed this case to be simply “grandstanding.”

“It’s fun to file complaints like this,” he told Ars. “It’s fun to file allegations. Presumably they get a bunch of publicity in a bunch of ‘alt-right’ media quarters. Maybe they raise money, but it’s not a valid claim.”

AFDI’s attorney, David Yerushalmi, declined to respond to Ars’ questions—such as why the group had decided to sue Lynch rather than Facebook, Twitter, and YouTube.

“We are preparing our response to the government’s motion,” Yerushalmi e-mailed. “Our answers will be in the response, and you can review [them] as you did the government’s filing.”

He told Ars to expect this filing by October 12.