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Jan. 13, 2023 - Health Ranger - Mike Adams
49:58
Jason Fyk unveils strategy to force the GOVERNMENT to end Sec. 230 censorship
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All right, welcome everyone.
This is Mike Adams, the founder of Rightion.com, and today we have a really special guest, highly informative guest.
He is the founder of the Social Media Freedom Foundation, which you can find at socialmediafreedom.org.
His name is Jason Fick, and he is the top authority on Section 230 and its interpretation in the court system in America today.
So we're going to talk about Section 230, which is the section that's cited for censorship by big tech to silence voices they don't like.
And can we overcome this?
Mr. Fick, thank you so much for joining me today.
It's great to have you on.
Thanks for having me on, Mike.
I appreciate it.
Absolutely.
We have spoken a little bit off camera before or exchanged some text.
But I think I need to ask you to start from the very beginning for our audience about what you're working on and how you think Section 230 could be, quote, fixed.
Where do we begin in that discussion?
Well, let's see.
Let's go back.
Let me explain why I got involved in the whole Section 230 world.
And for those that don't know, Section 230 is the law that was written in 1996 to protect these internet companies when they host content that they fail to take down that's potentially harmful, and it gave them some authority to take down content.
Well, That's what happened to me.
I had built an audience of almost 38 million fans on Facebook.
At least in 2012, I recall having at least 17 million.
And we started making a lot of money doing marketing and advertising.
And eventually what happened is Facebook became my competitor and they found reasons to get rid of me.
And ultimately they did.
They ended up wiping out my business.
And I caught them.
I kind of caught them red-handed because, of course, the protections that were given under Section 230 We're to remove offensive content, right?
And the problem with that is that the courts have kind of interpreted it so that they can remove anything objectionable, right?
And that's what a portion of the law says.
Right, but then who defines objectionable?
Exactly.
Exactly.
Who defines what's objectionable?
Well, see, the reason we called them red-handed is because when they took my content down, about three or four months goes by, and I went to a competitor of mine, and I said, hey, I know you guys do a lot of business with Facebook.
They had done roughly $22 million in advertising.
And I said, can you see if Facebook would reinstate it?
You know, check with your reps.
And the reps came back and they said, no, we're not going to do it for Jason.
But if you guys own the pages, we'll do it for you.
So I sold them the pages, you know, relative fire sale.
And I just sort of got it to them.
And sure enough, right after all the contracts were done, they turned the pages back on again.
Everybody asked me, well, what are you posting?
It's irrelevant because the same content that was taken down is the same content that was put back up.
Meaning I violated the rules when I owned it.
But the same exact content didn't violate the rules when it was in another person's hands.
So we knew that it had nothing to do with content.
And we've made that very clear to the courts that my case has absolutely nothing to do with any kind of improper, immoral content at all.
It doesn't matter, right?
So we went to the court.
We sued.
In 2018, I sued Facebook versus Facebook.
And the story will sort of tell you exactly what's wrong with 230.
It's a very strange sort of process.
And when we went to the courts, the Northern District of California and the Ninth Circuit Court basically concurred, and they said, you're treating them as a publisher.
You can't treat them as a publisher.
And they dismissed my case under what's called 230C1, right?
Because Section 230 works just like an outline.
There's 230C, C1, C2, C2A, C2B, right?
Well, they dismissed it under C1, claiming that I was treating them as a publisher.
And we thought to ourselves, well, they are a publisher.
I mean, they're acting as a publisher, and of course, you know, that's always in the vernacular with everybody, is they're a publisher.
Well, this might surprise you, and I'm sure you've probably heard that you can't treat them as a publisher, correct?
Mm-hmm.
I'm sure you've heard that, places.
I've heard that, right.
Because a publisher is responsible for the content, because they're making editorial decisions.
Correct, normally a publisher is.
Right.
Right.
It's responsible for its actions, right?
Right.
And that a passive distributor, meaning a passive host, wouldn't be because they're not involved in the content decisions, right?
Right.
What if I told you that you can actually treat them as a publisher?
Well, it seems like by them taking the action against you that they took, wouldn't they then define themselves as a publisher?
They were.
They were a publisher.
But see, this is where everything gets, you know, got, I guess it got confused because I'm sure you've heard Gonzalez versus Google.
It's in the Supreme Court right now.
They're considering it's a Section 230 case.
No, I'm not familiar.
In Gonzalez, I'm sorry, excuse me?
I'm not familiar with that case, no.
Well, okay, so the Supreme Court has accepted two cases that are Section 230 cases.
So they're already considering Section 230 right now.
So that's a good thing for everybody.
But Gonzalez, which was a case about recommending terrorist content, and they say, well, we can recommend content.
And, well, they can't actually, believe it or not.
And when I say they can't, meaning in a correct interpretation, they shouldn't be able to because, as Gonzalez actually recognized, a very, very subtle but very distinct issue.
They said they're not holding them accountable for recommending content.
They're not holding them accountable for the content.
They're holding them accountable for the recommendation.
So in my case, it wasn't about content.
I was holding them accountable for their actions, their conduct.
So the question is, if you go back and you say, well, can they be treated as a publisher?
Well, if you read it very carefully, and you know how they say every word of the law is important, or the letter of the law.
There's a reason, because the text is written very carefully by the legislatures, and it's enacted.
It goes through all different processes, so it has to be correct, because every letter matters.
Well, what if I told you it says, under 230C1, it says, no provider user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Now, you might be thinking to yourself, well, Yeah, it says you can't treat them as a publisher, right?
It says the publisher.
It says the publisher.
Now here's where it gets interesting because if you go into the English language carefully, the word the is called a definitive or a definite article.
It defines who the publisher is.
Most courts are always stuck up on what a publisher does or is.
It doesn't matter.
It's who it is, right?
Because Again, this section is called treatment.
It has nothing to do with immunity, believe it or not.
There is no such thing as 230C1 immunity, even though I was dismissed under it.
It's treatment.
It's a statement that says, definitionally, you can't be treated as someone else.
They turn that into they can't be treated as themselves, and here's why.
The definite article defines who the publisher is.
It's somebody that we already know about in the story.
Well, who is that?
Oh, another information content provider, right?
So the publisher refers to the another information content provider.
And that can be anybody but the provider or user.
Because it has to be somebody else.
It has to be somebody else that preexisted.
But when you change that by a simple word and you turn it into a publisher, you've now turned it into what's called an indefinite article, meaning it can be any publisher.
Including the provider or user.
And that changes the entire meaning of that one line from you can't be treated as someone else to they can't be treated as themselves.
Of course, that's what happened to me.
I couldn't treat Facebook as Facebook for Facebook's own conduct.
Yet I was the publisher of my content.
I was never treating them as me.
I was treating them as them.
And that fundamental, what we call the genesis mistake, it was the original mistake that happened, that has been conflated over and over and over again throughout time.
But where did this, as you're calling it, the genesis mistake, which court decision initiated this?
None of them.
They've all, so many courts have gone back and forth between a and the, and actually the origin that I can find of it when it was first mistaken, so to speak.
Now, nobody recognizes that's the problem, right?
This is the first point at which it becomes a mistake.
That happened all the way back in Zoran.
Zoran v.
America Online was the first case that ever considered Section 230 after it was enacted.
And Zoran came to the conclusion that the policy and purpose of the legislature was to protect all publishing decisions, whether to keep content up, take it down, or edit it.
Well, that means that if you can't be treated as a publisher, all publishing decisions, everything is included.
They can do anything they want, right?
Well, that doesn't work because if you can do anything you want, the second part of it is what they're allowed to do as a publisher.
It becomes irrelevant.
It doesn't matter what it says.
It's all publishing.
So they don't make duplicative laws, right?
It's not redundant.
So what happens here is this policy and purpose was realistically they legislated from the bench.
They did not do what Congress intended.
They didn't read the law for what it says.
They just went off on their own sort of direction.
And in fact, what happened is the next case, Barnes, it was Barnes v.
Yahoo, they came up with something called a three-part test.
This is actually how I came to the conclusion that this was the origin mistake.
They used what's called a three-part test in 230C1 immunity, which is ironic because I believe it was Kepler, Attorney General Ken Paxton actually put it in Amicus.
There's no immunity.
There's no such thing as immunity in 230C1. It's treatment.
And this three-part test that they created out of thin air basically said, are they the provider user of an interactive computer service?
Yes.
Are you treating them as a publisher?
Was the second part.
And it specifically said a publisher.
And I was wrestling with this 230C1 issue while I was in litigation.
And I was sitting there and all of a sudden I had an epiphany because I was looking at the actual law, right?
And it doesn't say a publisher.
It said the publisher.
And I ran to my computer and I was like, I got to look this up.
And I looked and sure enough, that three-part test says a publisher.
They converted it.
They changed the actual text of the law.
But if you change it back, it makes sense again.
They didn't quote the actual law.
They went off on their own path.
They made a mistake.
And in doing so, they created this mountain of questionable precedent and And that's what Justice Thomas called it.
But reality was that the first case was wrong.
The second case got it really wrong.
And then every case after that, once you've kind of like – imagine taking a square peg in a round hole.
You shave off the sides of the square peg to ram it in.
None of the other pieces are going to fit correctly.
So they rammed all those pieces in.
Well, that's what's happened is 230 has turned into this huge jumbled mess.
It's not the law.
It's the courts.
The courts screwed it up.
Well, sure, but okay, let me interject a different angle on this, which is that big tech has seemingly unlimited funds, and big tech pressures courts that probably bribe certain judges that get the decisions they want, and also there are a lot of activist judges, as you well know, across even the district courts, and They will interpret any words in any way they want.
They don't care what was written.
They care about protecting whoever's paying them, which is probably big tech in some cases.
I'm not saying they're all on the take, but many of them probably are.
I'm not surprised by what you're saying.
Think about all the other laws that they have abused and misinterpreted over all the years and done so on purpose.
Entirely.
And I believe that that's what's happened to us in the California courts because we've actually did something that was very, very strange.
This is a unique situation and it's where we're at now.
So we went all the way to the Supreme Court with this.
And we were in front of the Supreme Court in 2020 and they considered our case, but they declined it.
And unfortunately, so they could have fixed it a while ago.
But in that circumstance, there was this weird scenario that happened like days before we went to the Supreme Court.
Another case called Enigma v.
Mauerbeitz ended.
It was denied cert in the Supreme Court, and they wrote this 10-page statement.
Justice Thomas was really, really unique.
And everything in Justice Thomas' 10-page statement in that case said exactly what we had been saying since 2018.
Everything.
It called into everything into question.
But it was a unique situation where Enigma did something different.
They said that they relied on policy and purpose again.
To conclude that the Good Samaritan General Provision of the Communications Decency Act does not immunize anti-competitive conduct.
Well, that was different, right?
Have you even heard of the Good Samaritan General Provision?
No, but now...
Most people have not.
If they're quoting anti-competitive conduct, then doesn't this...
They're trying to make an antitrust type of argument then, right?
It already exists.
That's why the antitrust laws and the legislation are all going to become moot.
Let me explain.
So the Good Samaritan general provision, if you look at the law carefully, is actually not in C1 or C2. It's 230C. It precedes both.
It's what's called a long title.
And in there, it says Good Samaritan in quotes.
It says protection for Good Samaritan blocking and screening of offensive materials.
Well, what most people miss is that there's three parts to that.
The protection is the consideration.
That's what they get from the government.
To block and screen offensive materials is the directive from government.
So it is actually a state requirement that they blocked and screen offensive materials in order to get the protection.
And Good Samaritan is what they're calling a general provision, right?
But its formal name, because it's denoted in quotes, is called an intelligible principle.
Most people have never heard about that before.
And now, do you know what an intelligible principle does?
It's very interesting.
No.
Please explain.
An intelligible principle relates to any time there's a delegation of regulatory authority.
Even the United States Postal Service, the intelligible principle is universal service.
And what it is, it's essentially a motivation by which they're supposed to make up all of their regulations.
So the regulations have to stay within there.
And the reason for that is because without one, It's legislative power.
If they have an intelligible principle, it's executive power because they're carrying out what Congress told them to do.
And the reason I know that is because there was another case, Tarkessy v.
SEC, that determined if it doesn't have an intelligible principle but it allows them to regulate third parties, which is exactly what Section 230 does, it's unconstitutional.
Because it's legislative power.
It has to be executive.
Does this relate to the recent EPA decision where the Supreme Court said the EPA overreached its original founding principles when it was declaring that carbon dioxide is a pollutant?
You got it.
Same thing?
Very, very similar.
There's two doctrines of the Constitution.
One, the EPA case was what's called a major questions doctrine.
And it basically was saying, well, you don't get to just shut the coal mining industry down for all citizens of America just because you're the EPA. You don't have that power.
Legislatures are the ones that have to do that.
Right?
Well, that's very similar to the non-delegation doctrine.
They're kind of like cousins.
Non-delegation basically says that you can't delegate regulatory authority to infringe upon life, liberty, or property of any individuals without it being a legislative decision.
Right?
So...
When I went to the Supreme Court, and this is where it gets unique, I never got a day in court.
I never got a single hearing.
I have never seen a judge.
And you would think, oh, I lost.
I didn't really lose.
I was never heard.
And the thing is, is that Facebook clearly took my property, right?
They denied me my liberties, and they did so under the protection of government, correct?
Okay.
Well, if they did that under the protection of government, and then the government dismissed my case without Granting me a single hearing, well, if they take my life, liberty, or property, what am I entitled to?
Due process, right?
The United States government violated my Fifth Amendment rights.
Everybody's talking about First Amendment, and granted, it's in there, but the Fifth Amendment is a cleaner path because you can't do anything legally because they just block everything.
Well, I turned and I actually started another case.
We have the only constitutional challenge against the United States right now over Section 230.
So while everybody's scrambling about Twitter files and just finding out that the government has been involved in these decisions back and forth, we've been saying it on paper in a legal challenge since 2018, and nobody knows it exists.
We're going after the law itself.
So now, normally, I would be done on my personal case against Facebook, right?
I'd have the constitutional challenge still running, but because the Good Samaritan general provision prevents anti-competitive blocking, that's exactly what my case was about.
It's literally one of the four causes of action we had.
It was identical.
So now, which court decision is correct?
Was it my decision that they can't be treated as a publisher correct, or does the general provision, which precedes it, it's in C, and C1 is what I was dismissed on, does C1 Does it basically overturn my case?
So we went back to the Northern District of California.
Procedurally, we could do that because we have a change in law.
And we said, these don't make sense together.
You have to rectify them.
Well, lo and behold, the district court comes around and they said, well, Enigma considered 230C2. Your case was a 230C1 case dismissed.
What?
Well, where is Good Samaritan located?
It's not in C2, is it?
It's in C2. So that means it would essentially think of it this way.
You would think that a general provision would apply generally, correct?
Yes.
Well, intelligible principles do.
They apply to the entire statute.
So we went back to the Ninth Circuit Court and we said, okay, look, if this is the intelligible principle, it applies to the whole statute.
End of story, I should beat my dismissal, overturn my case.
And we said, well, per Jarkessi versus the SEC, if it's Not the intelligible principle.
It's legislative power.
It's unconstitutional.
My dismissal should be overturned.
It's a catch-22.
We had them coming and going.
What do you think the Ninth Circuit did?
I don't know.
How did they thread that needle?
Exactly.
They threaded the needle.
They went procedural.
They said, oh, you didn't file timely enough.
Rather than giving me justice.
Correct.
Rather than fixing their own mistake.
It's obvious now.
I mean, we had them in a catch-22.
Rather than fix their own mistake, they dumped me on a procedural nonsense, which, of course, wasn't really even legit anyhow because several of the cases we filed were called supplemental authority, which means right after the cases conflicted with our case, we filed within days or weeks, which means those cases are still in conflict, and those cases were all timely.
So it was complete crap.
Yeah.
We are now in a position, and this is just about to happen, we're about to file a second petition to the Supreme Court, which is almost unheard of, but we had a massive change.
But we had an even bigger one happen.
As we're literally just about done with the Ninth Circuit Court, a case called Henderson v.
Public Data, which has gotten no attention whatsoever, it ended.
Do you know what Henderson did?
If you recall, I talked about Saran v.
America Online being the first case that kind of got it wrong, right?
That was a Fourth Circuit case.
Well, Henderson v.
Public Data was also done in the Fourth Circuit.
It was based on Section 230, and they undermined all of Zoran.
They basically said it was wrong.
So all of the precedent that they based their decisions on, which Barnes based its decision on, which all of these other cases that stacked on top of about foundation, the Fourth Circuit just blew out the foundation.
And of course, one, it was timely because we filed it within four days.
And secondly, here we are with going to the Supreme Court now with not only just a conflict with internal circuit issues, we have what's called a competing circuit conflict, meaning the Supreme Court is inclined to fix it because you have two courts that conflict with one another, two circuit courts.
Nobody can break that tie.
So we have this perfect storm where they're already considering two Section 230 cases.
They're already considering Section 230C1. My case, Section 230C1 just got undermined by Henderson.
Section 230C conflicts with it in terms of the motivation aspect.
And what the courts did was unconstitutional because they're denying me of constitutional rights.
So I have a constitutional issue, circuit court conflict.
I have a competing circuit conflict with all of these things happening simultaneously just as we're about to hit the Supreme Court.
This is the perfect storm.
And we still have the constitutional challenge, which is addressing everything about the government impeding or basically laundering state action through private entities.
We've been working on this 230 thing for six years, six and a half years at this point, and we may be able to pull this off.
So what steps are required to get this in front of the Supreme Court?
Well, our next step, I've been working diligently with my attorneys to finish what's called a Petition for writ of certiorari, which is essentially a big appeal.
I mean, you have to put this whole book together and everything else like that.
It's very expensive.
So anybody, just so you know, it's a 501c3, socialmediafreedom.org.
We can always use such support because stuff's not cheap.
So essentially, we have to put this petition together.
We need to go back to the Supreme Court.
We need to explain where all of these things went wrong.
And the reason that we're back here is because essentially we have now conflicts with all these other Law is like there's been changes in the law and it's kind of a moving target.
And we need the Supreme Court to fix this because the lower courts can't anymore.
It's not possible because if you have two courts that are saying different things, those two courts are on the same level.
We need the big guy to take care of it.
So hopefully they can take our case, consider it separately or consolidate it with Gonzalez.
But one way or the other, it's a better case because Gonzalez is dealing with essentially a Terrorist-recommended content, where ours deals with the whole mess.
What's the timeline on the Gonzalez case?
I believe they're set for oral arguments January 21st and 22nd.
Oh, wow.
Yeah, so that would be the start of it.
It takes months for them to go through it, so it's not like we're down and out.
We actually have to be filed before February 15th.
We're hoping to file in the next two weeks.
That's our goal.
I see.
And can I ask you, the Gonzalez case, is that...
I don't quite understand it.
Is the plaintiff saying that a tech platform recommended terrorist content and therefore he was harmed by that?
Or what is that?
I believe it was a female and she was killed.
Oh, gosh.
Okay.
And what they're doing is they're saying...
And see, this is another small, subtle nuance, but there's a distinction...
They're saying, well, they can recommend content, and of course the courts have come along and said, well, recommending content amongst platforms, they recommend content the same.
No, they recommend recommended content the same, but the unrecommended content is not treated the same.
In other words, if you're recommending content, wouldn't you say that that's developing that content?
You're advancing it.
You're making it more prominent or more available.
By recommend, does that mean that they simply displayed that content to other users, for example?
Yeah, they advanced it.
They made it more available.
They suggested it, so to speak, right?
Okay.
Well, to develop something is to advance it, is to make it more available, especially, as they say, especially by deliberate effort over time.
Okay.
Right?
Same with, like, developing film.
You didn't create the film...
You just manipulated it, right?
But what if they only displayed it to people who had subscribed to that person's channel?
Then that wouldn't be a recommendation.
It would just be a delivery.
Correct.
That would be dissemination.
But they recommend it.
Just like when you see...
Take Facebook.
You see suggested posts.
Uh-huh.
That's not my feed.
I never follow them at all.
They are giving me that information.
They are developing it.
And the reason I'm using the word develop is because if you create or develop, and courts conflate those two.
They're two different things.
Create is to bring something into existence, whereas develop is to manipulate it after it exists.
Fundamentally, that's what they mean.
Well, there's actually a definition in Section 230F3. You go into what a content provider is.
Content providers are not covered.
They don't get any protection.
And the courts basically annihilated the use of development because of trying to make everything else, the square pegs, fit in the round hole.
Because development made no more sense anymore because if they're manipulating content in any manner, it conflicts with, well, if you can't be treated as a publisher, you can develop information.
Well, you can't.
Development actually makes them a content provider by legal definition, and they should be held accountable for that.
Meaning, Gonzalez is right.
The recommendation of the content, you should be able to hold them accountable for the recommendation.
And of course, everybody talks about having an absolute meltdown.
Oh no, the internet's going to end.
No, it's actually not.
In fact, Justice Thomas said that If you par back, if you just reduce back to a narrow interpretation of Section 230, it means that you would be able to at least advance your case.
It doesn't mean you're going to win it.
You still have to beat it on the merits.
People think, oh, well, they took down my content.
I'll sue.
You can't necessarily.
I'll give you a good example.
If you had a puppy dog site and you didn't allow kitty cats and you take down kitty cats, that's totally cool, right?
Like there's nothing illegal about that.
Therefore, there's no cause of action.
There's no reason you can go after them.
You lose.
But let's say, for example, they make their terms of service.
Black people can't go on there.
Well, that's a violation of discrimination laws, right?
It's completely outside of 230.
In that circumstance, you would be able to advance your cause of action of discrimination.
You would be able to get your day in court, prove it, and you'd win.
The problem right now is they could do anything to you.
Right.
So I was going to say civil rights laws don't protect, for example, conservative thinking or conservative speech, right?
No.
And unfortunately, because everybody asked me that, would it stop them banning my information because it's conservative?
No, it would not.
In fact, it never will.
And there's no way to write it that way because you would compel speech, but there is hope.
Ready for this one?
Do you recall Mark Zuckerberg sitting in front of Congress?
Yeah.
Remember when he had all those?
Do you remember him saying that Facebook is a platform for all ideas?
No, I don't remember that quote, but I believe you.
Okay, well, he said it, and he said it on record, and he said it in front of Congress.
Are political ideas ideas?
Absolutely.
Absolutely.
And it would be included in all ideas, right?
Right.
So that was a fraudulent statement, wasn't it?
Absolutely.
Fraud is a cause of action.
Yes.
So the point there is that it does not stop them from removing political speech, but it does hold them into account that if they're going to do it, they're going to have to tell us.
They're going to actually have to do it on the level and not this nonsense anymore.
And frankly speaking, because everybody says, well, what about the government involvement and the suggestions and so forth?
What about all that, the Twitter files, etc.?
Well, I say, well, in that circumstance, you actually have to sue your government.
Everybody thinks they're going to have to go after big tech.
No, no, no, no, no.
That's why my constitutional challenge is so vital here.
I'm already going after the government.
I'm going after the source.
Because it's the government that's actually violating your rights, not the big tech company.
They're two different things.
So for example, if you sue the FBI, you actually are suing the government.
The FBI itself is not the entity that is sued.
Even though it's named, it's not sued.
So you'd have to go after the government source.
And the question is, how do we stop that?
Well, we're already advancing that issue.
And of course, we have to be in a motion to dismiss.
It's a ridiculous motion to dismiss.
They're saying that none of what Facebook did is traceable to the United States, and it's like, well, Facebook didn't dismiss itself, did it?
And Facebook didn't write the law, did it?
That's all traceable to the United States.
It's just a ridiculous motion to dismiss trying to push us out on a standing issue.
So we are postured in the best scenario we possibly can.
I've been stopped at every single level.
I stood on the Capitol steps, Mike, with Congressman Gohmert and announced a full-blown constitutional challenge of one of the most contentious laws in America, and not one media source reported it.
None.
It's because we've become the news.
Yeah.
Gentlemen like you, the people that are getting the news out even at our own detriment.
A lot of times this really costs us.
Well, it has cost our nation.
It's cost all of us.
It is.
It is.
Because there's also, I want to ask you about what about the public square argument where, I know you're familiar with this argument, but just for those listening, you know, a telephone company can't decide to censor the speech or to cut off certain customers because they don't like the way people are using the phone lines to talk about certain ideas.
What about that argument?
So, there's sort of two arguments you just threw in there.
One is a public square.
One is what's called a common carrier.
Yeah, common carrier.
That's right.
Big tech companies are not common carriers.
They're not straight conduits.
They do make decisions.
If it was a straight conduit, meaning if all of the Bill of Rights applied right to big tech, it would be a mess.
They wouldn't be able to function their company.
I mean, you still have to consider the average.
I mean, even though you mean...
I hate Facebook, personally.
But...
I still have to recognize they still have to function as a business, right?
And if they do function as a business, how would they do that?
Well, in that circumstance, you can't prevent them from just stopping, you know, because that is compelling speech, because you're forcing them to carry somebody's business.
So what's the point of carrying it?
They would just shut down.
They have to be able to monetize it.
So it would be detrimental.
I don't believe that they're a common carrier.
Now, the public space, public square issue, that goes back to Prunyard, Prunyard Mall.
And the situation there is that when a corporation – because a corporation is allowed to incorporate through government, right?
They're given the power to be a corporation through government.
And guess who gave the government the power to be a government?
We did.
So a corporation should be subject to the Bill of Rights because they're granted power.
Now, a lot of people confuse being a private entity.
Well, no.
There's a difference between acting in the private and the constitutional common law sense.
And being considered a person, which is how they consider a corporation, but it's a person, and essentially it's a privately held corporation.
They're subject to different laws, different constitution, and they're treated differently.
And in the circumstance of Pruneyard Mall, just to give you an idea of what was happening, is people were coming in and giving flyers and basically exerting their First Amendment rights.
The mall didn't like it.
They wanted to kick them out.
And they said, no, we have a First Amendment right.
And they said, no, we're a private business.
No, you're a mall that's regularly held open to the public.
And therefore, since it's a corporation regularly held open to the public, it is subject to the Bill of Rights.
Well, they were allowed to come in and protest and so forth.
Well, that's the thing.
There's never been a case in advance that everybody talks about it.
And I believe in some aspects the Prager University did that.
But I'm not sure exactly where it went, and I know that they – I believe they stopped the circuit court level.
But I'm not 100% sure about that, actually.
It's funny because I talk to Susan Prager all the time, so I'll have to ask her.
But the point there is it's – everybody is looking at it from the standpoint of essentially a public square.
If we go back to what I was saying about the constitutional challenge, we're saying that the state action, the agency directive is directly in the statute.
You don't have to look at all this other nonsense.
You don't – the Twitter files are just evidentiary.
They're not relevant to the initial, which was we're saying, no, the statute itself grants authority from the government to do a job.
And you know how like you proof a math problem?
You work it backwards.
Well, think about what it says.
Protection for Good Samaritan blocking and screening of offensive materials.
If they blocked and screened offensive materials, which is what Congress told them to do, They get the protection.
Therefore, if they're seeking the protection, what did they have to do?
What Congress told them to do?
They can choose whether to do it.
It's voluntary.
And everybody thinks it's any voluntary act they want.
It's not.
It's the voluntary choice to do it.
But if they do it, If I said to you, I want you to do this, you can choose to do it or not, but you do it, did you do what I asked you to do?
Yes.
Exactly.
So if they choose to remove and block and screen offensive materials and they seek protection from the courts, they had to have acted as a state agent.
Right.
So the state action is right there in the statute.
Just nobody's ever challenged it.
We are.
Well, what's your confidence level in changing – having a Supreme Court decision here that would change the interpretation, force the lower courts to reconsider their decisions?
So there's a couple of different levels to this.
If I were to give you a percentage of whether I'm right or wrong, I'm 100% right.
Unequivocally, I will debate any attorney in this nation, and I'm not even bar-licensed.
I know I'm right.
It only works one way.
The percentage of whether or not I'm going to get in the Supreme Court, well, that's a little tougher because generally they take about one out of every thousand cases.
It is incredibly difficult to get in the Supreme Court.
However, my odds get way better because they're already considering 230.
They're considering the statute that I'm actually fighting, and they've got two cases active, and it's really not a burden on the Supreme Court to take a better case, a better vehicle to consider all of it and get it all fixed.
and So if the Supreme Court takes it, they actually could do a better job because they'll have more information than just this one little subsection.
Mine addresses all sorts of issues that are going on in there.
Essentially, it unwinds the Gordian Knot.
We took it and we took it all apart.
We said, here's the only way it works.
And so...
those odds, I would say maybe 50-50, which is incredibly good for the Supreme Court.
If they do – now, the last odds would be, well, what would be my success?
If the Supreme Court takes my case and considers it, it's so straightforward and so strong at this point.
And the biggest thing is, you know how they shy away from political stuff, right?
Sometimes.
The political stuff, it's not good.
Well, my case isn't about politics.
My case is all economic, and I kept it that way purposely because I don't want it to I don't want it to be about censorship.
It's purely an economic – because economics are easy to understand for courts.
What they did was anti-competitive.
They took my company apart for their own self-benefit.
It had nothing to do with the law, right?
Well, if they take that, it's so straightforward.
And considering what Justice Thomas already said in Enigma, which is basically my entire case – I mean, again, we don't know what the courts are doing these days.
I don't know if they're going to do the right thing, but I don't see why five judges would not agree with – essentially, forget what I said.
Would they agree with what Justice Thomas said?
Because that's effectively my case.
If we get in front of the court, I would say we have a 95% chance of winning it too.
But we've got to get there.
Exactly.
And also, big tech is going to be throwing all kinds of money at legal maneuvers and so on to try to stop this.
Well, can they?
The Supreme Court is not one of the ones that's really influenced by all that.
They don't take money from there.
And I'll be honest with you.
Think about the broader scope of things.
Think of the cases that have actually been overturned recently.
You've got Roe v.
Wade.
You've got the OSHA case where they overturned the vaccine stuff, right?
That was a major questions doctrine issue.
The EPA case you talked about, again, major questions non-delegation.
You've got the gun case out of New York, right?
These are big cases that are flipping.
And do you know what they all have in common?
Delegations of authority.
They're delegating authority out to lower non-legislative bodies to engage in legislative function, and the way I look at it is this.
The Biden administration made a – whether you like them or not, they made a fatal flaw I think.
They went out there, and they threatened the Supreme Court to pack them out.
Well, if you're one of nine justices, you're one-ninth of an entire branch of government, would you want to be threatened to be diluted?
Of course not.
Right.
No.
So if the branch of government, which has lost its mind, decides to threaten another branch of government and says, hey, look, we're going to dilute your power, and they can legally dilute the power of the executive branch because they're writing executive orders and so on.
I honestly think that they may be working on neutering these other two branches.
Legally, completely constitutionally sound.
Right.
They're bringing it back and saying, no, you do not have this power.
Well, yeah.
I mean, if they just extend the EPA decision to other agencies, they will have effectively neutered.
And by the way, I think it was the Fifth Circuit that just overturned the bump stock ban, which is huge.
Unbelievable.
Yeah.
I mean...
The HB 20-230 law out of Texas.
The Fifth Circuit...
Matter of fact, they made a very big distinction there, just that everybody needs to know.
You know how they say big tech has the First Amendment right to censor speech?
No, they don't.
In fact, there's a distinction.
It's subtle, but you have to understand it.
They say that if the content is not published, meaning pre-publishing, if they choose not to put it up, that would be some expression, right?
Because they're denying the ability for that to be seen.
So there's some expression in that.
But if the content is already post-published, meaning it's already there from somebody else and they take it down, there's no expression.
It's only suppression.
Free speech protects the expression of speech.
It does not protect the suppression of speech because it's antithetical to the actual law or to the Constitution.
And they recognize that, no, if...
They don't have a free speech right to suppress other people's speech once it's said.
Yeah, because that's the whole argument of the tech industry is that they say that if they can't censor people and remove content, then it interferes with their free speech.
It doesn't.
It interferes with their business.
And there's a very big distinction there in and of itself.
It's just like Saying to somebody the difference between rights and privileges.
Laws are not rights.
They're privileges.
If big tech then, if they were to pause everything, like you post, and then they have to moderate, it doesn't go live until they approve it, then clearly that makes them publishers.
That would make them a publisher.
Their publisher is whether they do it before or after.
That's irrelevant.
That makes it their free speech because there's some expression in it.
But if they consider speech and see, there's problems with 230 again because some courts have held that they can do that.
They can choose what content to put up.
No.
The moment you put any kind of content decision involved, there is some expression in that.
And that's really the way 230 was supposed to work is that in the first scenario, right, where the provider user can't be treated as the publisher, They're not expressing anything.
They're not involved.
It's essentially, it's protection when they fail to remove content.
Fail to.
I mean, they haven't acted at all.
It doesn't cover publication decisions.
The second portion is where they actually are granted these powers to engage in publishing decisions.
That's it.
And they're limited.
There's a very limited realm.
And everybody says, well, it says otherwise objectionable.
Right?
Well, first off...
The second law doesn't even apply, and believe it or not, out of 500 cases over two and a half decades, do you know that only 19 have ever applied to otherwise objectionable, the second part?
I did not know that.
Because the first one was too broad.
It covers everything.
It's just sovereignty.
But then you get into the discussion about otherwise objectionable, and basically you can either consider it objectively or subjectively.
In the objective sense, it can be anything they choose.
Whatever.
Right?
Because anything can be objectionable.
But subjectively, it would actually be subject to the previous words.
Meaning it would be lewd, lascivious, excessively violent, harassing, or otherwise objectionable.
So they relate to those other procedures.
In that circumstance, all those other ones are illegal.
Those are actually, there are categories of speech that are physically illegal.
Well, let's think about this for a moment.
I'm sure you've probably heard.
The United States can't grant authority that it itself cannot exercise, correct?
They can't say to the FBI, hey, you're allowed to restrict free speech.
Well, they can't do that technically with this law either.
So if they're saying that you can bring anything objectionable down, which would be lawful speech, that would be unconstitutional, would it not?
So the only way that it would be constitutionally sound is if it only relates to unlawful categories.
Good point.
So it can only be considered subjectively.
Now, it hasn't been because the Supreme Court's never addressed it, but of course, guess what?
It's one of the things we bring up.
It has to be that way, because if it's not that way, it's unconstitutional.
It's Catch-22.
Jason, we're about out of time here.
And I know we could go on, but you've got to give people time to absorb this, too.
It's a lot.
It is intense.
Tell people how they can find you and follow you.
I know you're on Twitter, but what's the best way for people to follow you?
So, yeah, obviously on Twitter, at my name, it's J-A-S-O-N, F as in Frank, Y-K, so at Jason Fick.
I'm on there.
I have a red emblem with my face on it and so forth.
I actually own up to what I say, unlike the trolls.
But you can also find me on socialmediafreedom.org.
If you want more information on this, we have...
I know what's hosted on our front page is three articles.
One is a Gateway article, a Human Events article, and a Federalist article.
Those three articles will give you a really good idea of what all is going on, not told the way big tech says, but the way it really works.
I mean, we've been working on this problem for a long time.
time.
And again, we can even use your help.
This is not free.
This is very expensive.
It's very difficult.
We are tax deductible.
We're fighting for the freedom of everybody online.
So again, socialmediafreedom.org.
You can find information there.
And again, find me on Twitter because I host spaces.
And actually, Mike, I'd like to invite you to come speak in one of our spaces, whether you get your primary account back or not.
I would love to have you come in and have a chat with some people.
Yeah, I'd love to join you on that as well, especially as a platform owner and founder myself.
I'd love to be part of that conversation because lots of implications for us as well.
Of course.
But I'm really thrilled that you're on top of this and you're marching this through the process that's going to be necessary to...
This is like overturning the Roe versus Wade of big tech, in essence.
Yeah.
I try to explain to people the magnitude of this is that if we can get in front of the Supreme Court and fix this, it could potentially save the world.
Because free speech is the fundamental.
You can throw words at somebody before you have to throw lead at them, right?
And the internet is essentially the superhighway of information now.
We have to get free speech back online, or we're going to lose everything.
So...
That's the big...
I mean, people say that the elections is a big part.
No, we need free speech back, like now.
Yeah.
Like yesterday.
Yeah, if we get free speech back...
So yeah, it's important.
Then elections will become more fair and free.
Right.
Especially because...
You want to know a great statement is this.
Do you know when the truth does not matter?
When it can't be heard.
When no one hears it.
Right.
Right.
That's why it's so important, is to get the truth out.
Same stuff with the COVID, the shocks, all of that.
It all came down to the restriction of speech.
That's right.
Including questioning elections or questioning vaccines or questioning anything.
Questioning the government, period.
That's what we have to get.
And in truth, I'm not fighting Facebook.
I'm fighting the government.
That's realistically what's happening here.
Well, we appreciate you joining us and we wish you the best in this.
And I also want to encourage our listeners to consider supporting you.
You take donations at your foundation, your nonprofit website.
Yeah, if they go to socialmediafreedom.org, it's available in there.
You can help us out.
And again, it's tax deductible.
Okay, perfect.
Alright, that's the website folks, socialmediafreedom.org and Mr.
Jason Fick is the founder.
Jason, I really want to thank you for taking the time and working through all this and will you please keep me posted as well because I know we want to have you back on as decisions get made in this.
Absolutely.
I can always be a resource if anything deals with Section 230 or the big tech stuff.
I'd love to come back and And weigh in.
Okay.
Love to have you back.
And especially as things happen, milestones get reached or whatever happens in this space.
Because they sure will.
They will, yeah.
Eventually.
They sure will.
We know it's coming back.
That's right.
All right.
Well, thank you for joining me.
It's been fascinating.
And I really appreciate you spending time and explaining all this.
Much appreciated.
Thank you, Mike.
Take care.
Absolutely.
Take care.
And for those of you listening, I hope you enjoyed this interview.
Feel free to repost this interview on your own channels and other platforms as well.
I'm Mike Adams, the founder of Brighteon.com, a free speech video platform.
By the way, that's why we care about this.
Thank you for listening.
God bless you all.
And may America and the world once again experience freedom and freedom to think.
Take care.
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