Why is West Virginia v. EPA ‘One of the Most Pivotal’ Cases in the US?

On June 30, the US Supreme Court issued a decision in West Virginia v. Environmental Protection Agency (EPA) limiting the latter’s ability to regulate carbon emissions from existing power plants.

The recent Supreme Court decision has sparked fears that the ruling’s impact may extend beyond the issue of climate change and affect major regulatory actions by the executive branch, mostly in newer sectors like tech, as the ruling could potentially endanger efforts by the Federal Communications Commission to restore network neutrality or a range of new regulations in other areas.

In an interview with Sputnik, Jason Fyk, the founder of the Social Media Freedom Foundation and social media entrepreneur who has been suing Facebook since 2018, said that the recent court decision may be favorable in his trial, pointing out that the case was not only “huge,” but might be “one of the most pivotal cases in America right now, even more so than Roe vs. Wade.”

Fyk also expressed his opinion concerning the issue of freedom of speech and Section 230, federal legislation passed more than 20 years ago that provides protection to social media companies from being sued over content on their platforms.

Sputnik: What is the main problem with Section 230 and how does it allow tech giants to restrict freedom of speech?

Jason Fyk: The problem with Section 230 is that it is a broad delegation of regulatory authority that was granted by Congress, and that broad delegation is largely uncontrollable by the courts. What I mean by that is essentially, the only two standards by which this law was really held accountable was that they acted as a Good Samaritan in good faith. That’s in the language of the actual statute. The courts have not been able to implement those in the past 26 years. Enigma vs. Malwarebytes was the first case that even identified the Good Samaritan general provision, which is what’s known as an intelligible principle. That has essentially taken what should have been broad discretion and turned it into effectively sovereignty. They can do anything they want.

In doing so, there is also a separation that most people do not understand, which is how does it infringe upon free speech? A private entity like Big Tech – Facebook, Google, Twitter, whatever – they have a right to take down or put up any information they want, as a private entity. That is their right, it’s a constitutional right; they’re allowed to do it. It’s whatever you want to call it, either God-given or natural-born. They’ve always had that right. Where most people confuse everything is that supposedly Section 230 either protects the First Amendment for the private entities, or it allows them to infringe upon the third party rights. It doesn’t. Here’s where it’s confusing.

Section 230 is essentially a statutory privilege. It has nothing to do with rights at all. It’s a grant of protection. It’s a liability protection. What that does is that a private entity like Facebook or Google can take down anything they want and that is effectively infringing upon the First Amendment right, but that’s not the issue. The issue is that they get the liability protection to do so. That’s where it steps over the line, because Congress is not authorized to abdicate a function that it does not itself possess, meaning Congress can’t infringe upon your First Amendment rights, so therefore it can’t grant the privilege or power or protection to do so to another entity. The law is actually unconstitutional in that form.

Sputnik: Why is the mainstream media burying the story?

Jason Fyk: Well, true. And here’s the thing. This is actually the first time I probably will ever bring this up, but you bring up a really good point. Why is the mainstream media not dealing with this?

Well, unfortunately, we are sort of in an internal war right now in America, where some people want to suppress speech in the name of safety, supposedly, whereas others want to free up speech and say “stop restricting my speech.”

The media wants to be the voice of America, all of it, whatever you want to call it, whoever it is, they want to be the voice. They’re right and no one else is right. That’s kind of the way they’re acting. “We know everything,” so to speak. Surprisingly, and this is something that I think the whole world would be interested to know, on April 26 2022, I stood in front of the Capitol in the United States, in Washington, DC, with Congressman Gohmert. And we announced the first-ever constitutional challenge of Section 230. Every single media was there. I had a congressman agree that we are correct, that it is unconstitutional and that they’re going to give us what is called amicus support, which basically is legal support. And not one single mainstream media reported it.

Sputnik: Why wasn’t there anything about Congressman Gohmert’s support for your lawsuit, which seeks to clarify and strike portions of Section 230 on Capitol Hill?

Jason Fyk: That’s just it. Because people say, well, social media and mainstream media are totally different. They’re not. Years ago, and it’s sort of a complicated interaction between the two, but years ago, social media were able to circumvent mainstream media.

We saw that because of the election of Donald Trump. Essentially, mainstream media allowed individuals like you, me, and everybody else to speak openly. And we managed to circumvent the overseers, the mainstream media, who is supposed to tell us what to do.

Well, mainstream media didn’t like that, so they fought back and they really put social media back in their place, and they ended up striking some sort of deal. Remember, Facebook called them the “trusted sources,” the “authentic trusted sources” that we’re supposed to listen to. Why? Because they’re working in concert. They’re working together. They want to control all information, mainstream media and social media combined.

If I come out and they let the world know that, “oh, by the way, here’s this constitutional challenge which draws in to account all of Section 230 and says this is unconstitutional”, I damage all of media. Media loses their power. They don’t want anybody to know, and the most dangerous stories to the powerful are the most suppressed. They want people chasing their tail. They want people to misunderstand 230. I’m sure you’ve heard that Section 230 is a protection for the First Amendment. That’s ridiculous. It’s not, the First Amendment is an insured right. It’s God-given or natural-born. So all this is, is a privilege for liability protection. It has nothing to do with it, but yet they will promote that. And the reason they’re promoting it is to confuse people. They want people to not understand what’s going on so they would just give up their power. They don’t want anybody to know that there’s a constitutional challenge.

It’s huge because there’s even something more important about it that most people also don’t know. And this is something that you’ll be one of the first to be reporting on. Our constitutional challenge brought into account the non-delegation doctrine, the major questions doctrine, the void-for-vagueness doctrine, and the substantial overbreadth doctrine. These are the four main doctrines that we use in the constitutional challenge. Recently there was a case, West Virginia vs. the EPA, and it was a huge ruling that, of course, the media completely suppressed. “Don’t pay attention to this, look somewhere else!”

But that West Virginia vs. EPA case was huge. It may be one of the most pivotal cases in America right now, even more so than Roe vs. Wade. Do you know why? Because it actually pulled legislative power from regulatory commissions, including the executive branch.

It said, “Hey, you guys are not allowed to make law. That’s Congress’ job!” It put a lot of our federal government back into its place and it really crippled the EPA and said, “No, you can only follow legislation set forth by Congress, not make it yourself.” Guess what? Our constitutional challenge says the exact same thing. I mean, the same quotes, same case law, same doctrine, same everything. The only difference between that case and ours, is that that is a public regulatory commission, the EPA. And we’re saying “You’ve made every single unqualified interactive computer service, like Facebook, Google, Twitter, you get everybody that is unqualified, you have given them the power to create law. You said ‘Go make rules, enforce those rules, and we will have your back. We will get you protected in court.’” They cannot do that. It’s what one justice called “the most obnoxious form of delegation of regulatory authority that exists”.

Sputnik: How hard is the resistance towards the lawsuit from Big Tech?

Jason Fyk: Of course, they’re there lobbying everybody in Congress. There’s so much pushback. Have you noticed how nobody’s fixing it? It’s “We should do something,” they’re all claiming that there’s a problem. Some want antitrust, some want free speech. What’s coming down the pipeline now is that and I’m sort of telling congressmen, because we are actually working on something called the Online Freedom Act, which is the correct fix for Section 230. It’s a complete replacement, because everybody’s trying to essentially put a band-aid on a gangrenous arm. The problem is not going to be fixed by a band-aid. You can’t do carve-out legislation. The problem has to be fixed at its origin, which is Section 230 of Title 47.

What we’ve done is I’ve actually restructured the law and included all of the qualifications, the procedural guidelines and safeguards that should be there that aren’t when a private entity does this. But I basically said to the Congress, “Look, you don’t have a choice anymore. You can either repeal this thing and replace it voluntarily, or we already have a constitutional challenge coming and this law is going to get taken down. You can decide either wait till it gets struck and maybe come up with a fix, or voluntarily fix it the correct way,” because that was the purpose of the Social Media Freedom Foundation, which is our 501(c)(3). We are fighting any of these unconstitutional laws.

Even if they put legislation in that is a carve-out, if it’s unconstitutional, we’ll fight that too. So it’s a moot point to put in any legislation that won’t work. And several of them are out there. I mean, I’ve seen a lot of legislation where they say, well, there’s like “covered companies”. And what they mean by “covered” is that if the company makes $3 billion, it has a different standard of protection than one that would only make $3 million. The interesting thing about that is all you have to do is look at the 14th Amendment, equal protection under the law, it’s a violation of constitutional rights. It’s going to get taken down. The reality is that it needs to be fixed and fixed properly.

Sputnik: Why is the US government failing to provide its citizens with one of the most vital rights – freedom of speech? Is it simply protecting Big Tech instead?

Jason Fyk: You have to remember that this law was written in 1996. Its origins have been completely lost. People don’t even know why this law exists. And it was well-intentioned, originally. It was not that Congress said, “Hey, look, we’re going to protect Big Tech.” They didn’t even know what Big Tech was back then. It didn’t exist yet. The closest thing back then was probably like America Online. But the purpose of this law, if we go back to its origin, was to protect children from harm. And some people say, “No, that’s not it.” It is, and here’s why.

The first case that really kind of brought this up was the Stratton Oakmont case. They were sued because the company held themselves out to be family-friendly. What that meant was that they took down any information, any content that was harmful to children. But they missed some, and somebody sued them, and they won. They said, “Well, because you took down some content that was on your site,” they became responsible for all of the content on their site that they missed. What that means is that the information that they unknowingly hosted, they published it, but they published it passively. They just were not involved in the actual act of publishing of it. They were responsible for that.

Congress said, “Wait a second, we want them to be able to help protect children, but we also don’t want them to be held accountable for all of the actions that they’re not even involved in.” That’s how 230 started. What they said was, the first part was that you cannot be treated as the publisher of any information provided by another. “The” publisher. Well, courts mistakenly understood that to be “a” publisher. It’s a very small difference – “the” publisher or “a” publisher. One single word. If you’re the publisher and they can’t be treated as you, it means someone else. But if they actually act as a secondary publisher, meaning they manipulate, develop your information, like whatever content, and they change it, they editorialize it, then they become a publisher. Well, if they can’t be treated as a publisher, it means they can manipulate any content they want, because they can’t be held accountable for it.

That’s actually what happened. In 1997, the very next year, another case called Zeran vs. America Online, the court held that 230(c)(1) allowed traditional editorial function. Well, that’s wrong. It actually is what’s called a “definitional” protection and it says “you can’t be treated as someone else.” And they converted that into “you cannot be treated as yourself,” which became sovereignty instead of what it was intended to do. That means that the very next section, which allows them to be an active publisher, which allows them to remove bad content for children, becomes useless. Because if you can’t be a publisher or ever be treated as a publisher and the next thing says this is a publisher function that you’re allowed to do, it’s irrelevant. It’s superfluous. You don’t need it. It’s redundant. That’s not the way the law works and that’s where everything started to come apart from literally year one.

Sputnik: What would be the timeline of your lawsuit and what is needed to succeed?

Jason Fyk: Right now we’ve sort of taken all of the peripheral needs out of the mix. A constitutional challenge is something that has to be handled. Now, I have direct harm by the United States, because my personal case against Facebook went all the way to the Supreme Court, and I never once had a single hearing, not even an oral argument. That means that the United States denied me of my due process. They gave these companies legislative power. They said “You can be an administrator.” And they denied me of my liberty and my property. They took my stuff away from me without reason, and the United States government protected them to do so. It gave them the authority to do it, and they protected them. And then they never gave me a single day in court to ever hear my case.

Because of that they, meaning the government, harmed me directly, which gives me the standing to go after the United States itself. That is what a constitutional challenge is. We’re saying to the United States government, “Your law is unconstitutional. It harmed me.

It was an illegal taking, meaning you gave this authority to this company to take my liberty, my property, and I could not do a thing about it.” That’s a denial of due process, the Fifth Amendment. Timeline-wise, we filed in April. We have to serve the United States attorney general, essentially, with theoretically suing the executive branch and saying “Your law is unconstitutional.” The attorney general has 60 days to respond. So we’re looking at August 6, I think it is our deadline, or August 7, one of those two dates, before the attorney general has to enter their appearance. If the attorney general does not enter their appearance, an unrebutted challenge means we win. That means Section 230 would be struck. That would fundamentally change not only America, it would change the entire world.

This is something that is very important to everyone. Now the attorney general can enter their appearance and begin to fight us. That will tell us a lot about the executive branch, because if the executive branch fighting to keep Section 230, it means they’re trying to keep it as a weapon. It’s a free speech weapon. Then they’re really not interested in fixing 230 or getting rid of 230 if they’re actually fighting it. Do I think it will be a futile endeavor? Yes. Why? Because the Supreme Court just found in another case, West Virginia vs. the EPA, that we’re right. If they stay with the same principles and the same doctrines, we’re correct. This is correct. It’s going to get struck. And if it gets struck, I just changed the world.

Do I need anybody? No. It’s already in process. It took us two years to draft this. This is probably one of the most important lawsuits out there. It will determine whether or not they can continue to infringe upon our free speech under the protection of government.

They can still do it, but they get no protection from government. It’s funny, because I just recently this morning looked at another case that was brought up, Taylor vs. Twitter, where Twitter came in there and said, “Hey, look, if we want to restrict you because you’re gay or because you’re a woman,” that’s what they argued in their case, they could. And that’s just it. The United States gave them the ability to break laws. That’s discrimination in the United States. They’re a part of the discriminatory classes. Why is it that this law circumvents all other laws? It shouldn’t and it can’t. And that’s what we’re about to stop.