FCC SHOULD PROTECT THE
INTERNET PUBLIC COMMONS
https://ecfsapi.fcc.gov/file/1080792043737/Ralph%20Fucetola.pdf
Comments
submitted on 7 August 2020 by Ralph Fucetola JD with reference to the
Department of Commerce's Federal Communications Commission Petition #11862 of 27 July 2020 seeking clarification
of provisions of 47 U.S.C § 230.
Acknowledging the recent actions of
Twitter and Facebook to ban speech by President Trump allegedly determined to
be "false" by "third party fact checkers" I am submitting
these comments as a retired attorney at law with 36 years of practice.
I am concerned with the actions of
various social media companies in "banning" [a term that reminds me
of the evils of Apartheid] various persons, including President Trump, for
political speech.
The apparent coordinated
"bannings" of various speakers, including, for example Alex Jones
(who was banned by several social media companies during one 24 hour period in
late September, 2018) suggests unlawful conspiracy by the companies in their
use of the Internet Public Utility or Public Commons.
I assert that the evidence does support
the theory that these major corporate actors are acting in concert and that
their actions violate the Racketeer Influenced and Corrupt Organizations Act
(RICO) [1] and the 14th Amendment [2].
I think anyone so “banned” by the Deep
State Social Media Crony Corporations has good grounds under the First
Amendment to petition agencies of the Government (including the Federal
Communications Commission) for Redress.
We are told that the “bannings” were not
unlawful censorship since the banning entities are all "private
companies", not subject to the First Amendment’s injunction, “Congress
shall make no law … abridging the freedom of speech…” I disagree and urge the
Commission to consider several points of law.
The First Point of Law to note is that
the Supreme Court has applied the language of the First Amendment to not just
Acts of Congress, but to any actions of the Federal Government, and, through
the 14th Amendment, to the States as well.[3]
The Second Point of Law to note is that
access is protected under the First Amendment. In the 2017 case of Packingham v North Carolina the Supreme
Court held that “a fundamental principle of the First Amendment is that all
persons have access to places where they can speak…”[4]
The Third Point of Law to note is that
the 14th Amendment provides that States may not make or enforce any law that
abridges the rights of US citizens. This
includes, of course, a State granting the corporate franchise to private
companies such that they may act in violation of our Fundamental Rights.
The Internet was initially established
by the US Government and remains our information commons, a “public utility,”
although used by private persons to communicate and by publicly registered and
traded companies to profit from our communications.
The social media corporations are in law
“creatures of the state” existing by virtue of the grant of the corporate
franchise which permits such entities privileges that are not applicable to
purely private persons, including the limited liability privilege and the
privilege of selling shares to the public as joint stock companies, to profit
from the use of the Internet Public Utility. Under Federal Law they have the
further privilege of the Section 230 exemption from liability for the content
of Speech expressed on their platforms.
While these companies appear, to some
degree, as “private” businesses, they act over the Internet Public Utility.
They act n the commons “under color of law” and are therefore more akin to
government agencies than to private actors.
That these entities engage in
substantial commerce with the government, receiving tax funds for certain
contracts including the providing of data about users to government agencies
such as the National Security Agency and Department of Homeland Security [5],
and benefiting from the use of the Internet Public Utility further
substantiates their status as agents of government power acting under
"color of law".
As such, these quasi-public actors must
be bound by the restrictions of the First Amendment and cannot discriminate
among their users on the basis of the content of the Speech which the users
express over the Internet Public Utility.
When several of these quasi-private
companies act in apparent concert to ban the Speech of a particular user over
the Internet Public Utility they do so “under color of law” and in violation of
the Freedom of Speech of both the speaker and those who seek to receive the
communication.
Both Freedom of Speech and Freedom of
Association are restricted through the exercise of authority depending on
government. This is unlawful.
The effect of the unlawful actions of
the companies is to tortuously interfere with valuable commercial
relationships, between the speaker and hearer, causing substantial financial
harm and damages. BTW, I note, currently, Facebook still accepts ads from
certain “banned” companies. But not from others.
Such unlawful acts, and the unlawful
combination to engage in such acts, may violate the provisions of RICO. The companies that are the most egregious
banners include PayPal, Google, Facebook, Twitter and YouTube.
Some of these same companies are “making
pacts with the devil” by developing special government-censored versions of
their services for Communist-controlled China, enabling that tyrannical regime
to impose its social control system on the world’s most populous country.
In the United States, the targeting of
individuals because of the content of the Speech they seek to express over the
Internet Public Utility can be seen as a type of commercial extortion forbidden
under RICO. Conspiracies to do so may
provide the second “act of racketeering activity” to invoke RICO. The claim to
rely on "third party fact checkers" is an act in furtherance of the
unlawful purpose.
The Federal Communications Commission
has authority to protect the Internet Public Utility from abuse by its
users. In the case of the
government-chartered quasi-private service providers such abuse includes
seeking to control the Speech of persons using the services.
Section 230 contemplated neutral service
providers that would not interfere with the Speech of the users; in return the
providers would not be responsible for the content of the Speech expressed by
the users. This requirement of fairness
by the providers needs to be clarified so that violations of RICO and of Free
Speech and Association will no longer occur. The Commission is obligated, as
part of the Executive Branch, to see to it that the laws be faithfully
executed.
While various authoritarian states make
no effort to hide direct censorship of speech, the “advanced democracies” are
more subtle. Germany, with no absolute constitutional protection for Free
Speech, is contemplating empowering Internet Service Providers to refuse
service to “hate groups.”
At the same time the large international
corporate controllers of the Internet, such as YouTube, Facebook and Google,
are already escalating content controls to enforce “political correctness” – if
you do not follow the Party Line, you cannot be heard.
First
they came after the Neo-Nazis and banned them from Youtube and Facebook. No one
protested.
Then they came after Alex Jones and
banned him from Twitter, YouTube and Facebook. No one protested.
Then they came after the President of the
United States...
You know the rest… and then they came for
you and me, and no one was left to protest.
These supposed private Social Media
Companies are actually exercising government authority -- just as much as if
they had been the “private” Tax Farmers of Ancient Rome. In this case they are
exercising government authority to censor Speech -- an authority that no part
government under our Constitution may legitimately and constitutionally
exercise.
They are the privatized agents of Deep
State control and censorship. They exercise this control on several levels.
Each of these mega-corporations is, in fact and in law, “a creature of the
state.” It is created by registration with government that gives it authorities
(such as limited liability to third parties, provided also under Section 230)
which it could not exercise as a truly private association.
If the same Rule of Law that applies to
truly private actors applied to government and its crony corporations, “content
control” efforts would be understood to be exactly what they are: unlawful
censorship.
Real free market competition and
technological progress would rapidly make the near-monopoly power of Twitter,
YouTube, Google and Facebook irrelevant.
If the same Rule of Law that ought to
apply to Government Censorship – that there can be no such censorship – applied
to Government's crony corporations, YouTube, Facebook etc., “private”
censorship could not remain.
The FCC is uniquely positioned to respond
to the Petition for Redress by asserting that corporations profiting from our
Internet Public Utility must respect Freedom of Speech, and especially when
that speech is political in nature, under Section 230.
The August 6th banning of paid
advertising from a particular Political Action Group by Facebook [6] for ninety
days, with that period of time extending through the National Election Day,
shows the serious threat to free, fair and open elections that the
government-granted market power of the internet service providers poses. No one will believe the presidential election
is fair if the current situation continues.
The
FCC must act quickly to protect Speech and fair elections by immediately
enjoining all efforts by the Social Media Companies to interfere in the
election through censoring Speech.
Ralph
Fucetola JD
President
Institute
for Health Research
www.InHeRe.org
[1] https://en.wikipedia.org/wiki/Racketeer_Influenced_and_Corrupt_Organizations_Act
[2] “No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United
States” – 14th Amendment
[3] “Beginning with Gitlow v. New York (1925), the Supreme Court applied the First
Amendment to states—a process known as incorporation—through the Due Process
Clause of the Fourteenth Amendment.” https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution
[4] Ibid. “In Packingham v.North Carolina (2017), the Supreme Court held that a
North Carolina law prohibiting registered sex offenders from accessing various
websites impermissibly restricted lawful speech in violation of the First
Amendment. The Court held that ‘a fundamental principle of the First Amendment
is that all persons have access to places where they can speak and listen, and
then, after reflection, speak and listen once more.’”
[5] https://www.brennancenter.org/our-work/analysis-opinion/government-expanding-its-social-media-surveillance-capabilities
[6] https://www.washingtonexaminer.com/news/facebook-levels-90-day-ad-ban-on-pro-trump-super-pac
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