Petition for Writ of Certiorari — Bob Lewis, Petitioner v. Google LLC, et al.

Supreme Court briefSep 13, 2021

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BOB LEWIS,

Petitioner,

vs.

GOOGLE INC. and YOUTUBE LLC,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Bob Lewis

Petitioner Pro Se

2695 Patterson Rd., Suite 2, Unit 172

Grand Junction, CO 81506

Ph: 210-888-9200

Email: bobbie.lewis@gmail.com

filed

SEP 1 3 2021

QUESTIONS PRESENTED

1. Does this Court’s holding in Packingham v. North

Carolina, 137 S. Ct. 1730, at 1736-1736, 198 L. Ed. 2d

273 (2017) that First Amendment protections apply to

social media platforms override 47 U.S.C. § 230’s civil

liability indemnification for censorship of constitution

ally protected speech?

2. Does the Petitioner, whose constitutionally pro

tected speech was censored and lost revenues as a di

rect result of the Respondents’ claim he violated their

“hate speech” policies, lack standing to challenge the

constitutionality of 47 U.S.C. § 230 when the Respond

ents employ it as a liability defense?

3. Does 47 U.S.C. § 230 allow private third parties the

unrestricted ability to regulate protected speech in vi

olation of the United States Constitution’s bar on Con

gress enacting laws that indirectly regulate protected

speech in an unrestricted fashion?

4. Does the government’s participation and encour

agement of social media censorship based on “hate

speech” transform the Respondents into joint-enterprise state actors when they censor the Petitioner’s

protected speech on their social media platforms in re

sponse?

5. Because 47 U.S.C. § 230 relies on vague language

and/or does not define its terms to provide indemnifi

cation from civil liability for censoring constitutionally

protected speech, is it itself unconstitutional?

LIST OF PARTIES BELOW

PURSUANT TO RULE 14.1(B)

The Parties to the Ninth Circuit Court action be

low were, Bob Lewis, Google Inc., a for-profit corpora

tion that is a wholly owned subsidiary of Alphabet Inc.,

and YouTube LLC a for-profit limited liability company

that is wholly owned by Google Inc.

RELATED CASES

Trump v. Facebook Inc. and Mark Zuckerberg> filed in

Federal District Court S.D. of Florida, #l:21-cv-22440.

Trump v. YouTube LLC and Sunda Pichai, filed in Fed

eral District Court S.D. of Florida, #l:21-cv-22445.

Trump v. Twitter Inc. and Jack Dorsey, filed in Federal

District Court S.D. of Florida, #l:21-cv-22441.

Ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..................................

LIST OF PARTIES BELOW PURSUANT TO

RULE 14.1(B)......................................................

RELATED CASES..................................................

TABLE OF CONTENTS........................................

TABLE OF AUTHORITIES...................................

PETITION FOR WRIT OF CERTIORARI...........

OPINIONS BELOW................................................

JURISDICTION......................................................

CONSTITUTIONAL PROVISIONS AND STAT

UTES INVOLVED...............................................

STATEMENT OF THE CASE............... ................

REASONS FOR GRANTING THE WRIT............

I. THIS COURT HAS HELD FIRST

AMENDMENT PROTECTIONS APPLY

TO SOCIAL MEDIA PLATFORMS...........

II. CENSORSHIP CONFERS STANDING

TO CHALLENGE § 230 .............................

III. § 230 IMPROPERLY DELEGATES THE

REGULATION OF SPEECH TO PRI

VATE PARTIES............................ ...............

IV. GOOGLE AND YOUTUBE ARE JOINTENTERPRISE STATE ACTORS...............

V. § 230 IS UNCONSTITUTIONALLY OVER

BROAD .......................................................... 12

CONCLUSION......................................................... 19

TABLE OF CONTENTS—Continued

Page

APPENDIX

Memorandum, United States Court of Appeals

for the Ninth Circuit (Apr. 15, 2021).............. App. 1

Order on Motion to Dismiss, United States Dis

trict Court, Northern District of California

(May 20, 2020)................................................... App. 8

Second Amended Complaint, United States Dis

trict Court for the District of Colorado (Nov.

13, 2019)

App. 54

TABLE OF AUTHORITIES

Page

Cases:

Arkansas Writers' Project, Inc. v. Ragland, 481

U.S. 221,107 S. Ct. 1722, 95 L. Ed. 2d 209, 13

Media L. Rep. (BNA) 2313 (1987)......................

Bartnicki u. Vopper, 532 U.S. 514, 121 S. Ct.

1753,149 L. Ed. 2d 787 (2001)...........................

Baxley u. United States, 134 F.2d 937 (4th Cir.

1943).........................................................................

Board ofAirport Comm’rs v. Jews for Jesus, Inc.,

482 U.S. 569,107 S. Ct. 2568,96 L. Ed. 2d 500

(1987)........................................................................

Carlson u. California, 310 U.S. 106, 84 L. Ed.

1104, 60 S. Ct. 746(1940)....................................

Child Evangelism Fellowship v. Anderson Sch.

Dist. Five, 470 F.3d 1062 (4th Cir. 2006)..........

Citizens for Better Environment v. Schaumburg,

590 F.2d 220 (7th Cir. 1978).................................

Elrod u. Burns, 427 U.S. 347 (1976)...................... 8,14

Federal Election Comm’n v. Massachusetts Citi

zens for Life, Inc., 479 U.S. 238,107 S. Ct. 616,

93 L. Ed. 2d 539(1986)........................................

Gallagher v. Neil Young Freedom Concert, 49

F.3d 1442 (10th Cir. 1995)....................................

Heffernan v. City of Paterson, New Jersey, 136

S. Ct. 1412 (2016)...................................................

Hill v. Colorado, 530 U.S. 703, 120 S. Ct. 2480,

147 L. Ed. 2d 597 (2000)......................................

TABLE OF AUTHORITIES—Continued

Page

interstate Circuit, Inc. v. Dallas, 390 U.S. 676,88

S. Ct. 1298, 20 L. Ed. 2d 225 (1968)................

Jackson v. Curry Cty., 343 F. Supp. 3d 1103

(D.N.M. 2018).....................................................

Jones v. Moultrie, 196 Ga. 526, 27 S.E.2d 39

(1943)..................................................................

Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77

S. Ct. 1325, 1 L. Ed. 2d 1469, 1 Media L. Rep.

(BNA) 1111 (1957).............................................

Lansing v. City of Memphis, 202 F.3d 821 (6th

Cir. 2000)............................................................

Lewis v. Clarke, 137 S. Ct. 1285, 197 L. Ed. 2d

631(2017)........................................................... 11,12

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,121

S. Ct. 2404,150 L. Ed. 2d 532 (2001)..............

Lugar v. Edmondson Oil Co., 457 U.S. 922, 102

S. Ct. 2744, 73 L. Ed. 2d 482 (1982)................

Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276,

90 L. Ed. 265 (1946)..........................................

Matal v. Tam, 137 S. Ct. 1744,198 L. Ed. 2d 366

(2017).................................................................. 9,17

Packingham v. North Carolina, 137 S. Ct. 1730,

198 L. Ed. 2d 273 (2017)................................... 4,17

People v. Fogelson, 21 Cal. 3d 158,145 Cal. Rptr.

542, 577 P.2d 677 (Cal. 1978)............................

Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct.

438, 88 L. Ed. 645(1944)..................................

Vll

TABLE OF AUTHORITIES—Continued

Page

Quigley v. Yelp, Inc., 2017 U.S. Dist. LEXIS

103771................................................................

Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020

(5th Cir. 1981).....................................................

Reno v. ACLU, 521 U.S. 844,117 S. Ct. 2329,138

L. Ed. 2d 874(1997)................................ ..........

Sanders v. 11 Kennedy, 794 F.2d 478 (9th Cir.

1986)...................................................................

Sargi v. Kent City Bd. OfEduc., 70 F.3d 907 (6th

Cir. 1995)............................................................

Speiser v. Randall, 357 U.S. 513 (1958).............. 8,14

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 194

L. Ed. 2d 635 (2016)..........................................

Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736,

84 L. Ed. 1093, 6 L.R.R.M. (BNA) 697, 2 Lab.

Cas. (CCH) K17059 (1940)................................

United States v. Playboy Entertainment Group,

Inc., 529 U.S. 803, 120 S. Ct. 1878, 146

L. Ed. 2d 865, 2000 WL 646196 (U.S. 2000)....

Constitutional Provisions:

United States Constitution,

First Amendment............

passim

Statutes:

47 U.S.C. § 230

passim

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Bob Lewis, respectfully prays that

a writ of certiorari be issued to review the ruling of the

United States Court of Appeals for the Ninth Circuit

entered in this proceeding on April 15,2021 for the rea

sons set forth below.

OPINIONS BELOW

The Judgment and Opinion of the United States

Court of Appeals for the Ninth Circuit is reported as

Lewis v. Google LLC, 851 Fed. Appx. 723, 2021 U.S.

App. LEXIS 10782,2021WL 1423118 and is designated

as not for publication. (App. 1-7). The United States

District Court for the Northern District of California is

reported as Lewis v. Google LLC, 461 F. Supp. 3d 938,

2020 U.S. Dist. LEXIS 150603, 2020 WL 2745253 is

designated as published. (App. 8-53).

JURISDICTION

Pursuant to the Court’s COVID related order that

allows petitions seeking review of orders within 150day filing deadline for cases where a relevant judg

ment was issues prior to July 19, 2021, per Order 594,

issued by the Court on July 19, 2021. Therefore this

Court has jurisdiction to review the aforementioned

Ninth Circuit Court of Appeals ruling pursuant to 28

U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

United States Constitution, First Amendment

which states as follows: “Congress shall make no law

respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peace

ably to assemble, and to petition the Government for a

redress of grievances.”

47 U.S.C. § 230(c), which states as follows in perti

nent part: (c) Protection for “Good Samaritan” blocking

and screening of offensive material.

(1) Treatment of publisher or speaker. No

provider or user of an interactive computer

service shall be treated as the publisher or

speaker of any information provided by an

other information content provider.

(2) Civil liability. No provider or user of an

interactive computer service shall be held lia

ble on account of—

(A) any action voluntarily taken in good

faith to restrict access to or availability of

material that the provider or user consid

ers to be obscene, lewd, lascivious, filthy,

excessively violent, harassing, or other

wise objectionable, whether or not such

material is constitutionally protected; or

(B) any action taken to enable or make

available to information content provid

ers or others the technical means to

restrict access to material described in

paragraph (1) [subparagraph (A)].

STATEMENT OF THE CASE

As a result of the Respondents censoring the

Petitioner’s protected speech on their platform

YouTube.com for violating their hate speech policies,

Then they unilaterally cancelled their revenue sharing

agreement with the Petitioner under the pretext that

advertisers are adverse to advertising on channels

such as the Petitioner’s because of his alleged hate

speech violations. However, even today, the Respond

ents run advertisements during the Petitioner’s videos,

which undermines their claims. Then, the Petitioner

started receiving reports from his subscribers that

YouTube was not only refusing to notify them of his

newly published videos, but also that the Respondents

were actively unsubscribing them from his channel. All

these things caused potentially irreparable brand

damage to the Petitioner.

In August of 2019, Lewis filed the underlying suit

in Colorado that led to this writ. In response, the Re

spondents filed a motion to dismiss based on § 230’s in

demnification clause. This led to the Lewis challenging

the constitutionality of § 230, which is the core of this

suit.

Then the underlying case was transferred to Cali

fornia and the California Federal Court dismissed the

suit, inaccurately finding the Lewis never pled any

injury in fact. When the Ninth Circuit finally issued its

ruling, it admitted that while Lewis did suffer injury,

it was not due to § 230. It’s important to note the Ap

pellate ruling offered no meaningful explanation as to

why § 230 wasn’t necessarily implicated.

This writ followed.

REASONS FOR GRANTING THE WRIT

THIS COURT HAS HELD FIRST AMEND

MENT PROTECTIONS APPLY TO SOCIAL

MEDIA PLATFORMS

In 2017, this Court extended First Amendment

protections to social media websites such as the

YouTube.com platform owned and operated by Google,

by designating them “digital public squares.” Packingham v. North Carolina, 137 S. Ct; 1730, at 1736-1736,

198 L. Ed. 2d 273 (2017).

Yet, this fact has been ignored by both the Federal

District Court of Northern California and the 9th Cir

cuit Court of Appeals in this case by virtue of failing to

apply the Packingham Standard to social media plat

form YouTube.com. (App. 1-53).

Therefore, because the Courts below refuse to fol

low the direction of this Court provided in Packingham, this writ should be granted.

II.

CENSORSHIP CONFERS STANDING TO

CHALLENGE § 230

To have standing to challenge § 230, Lewis must

demonstrate three elements: (1) he suffered an injury

in fact, (2) that is fairly traceable to the challenged con

duct of Google in the Court below, and (3) that it is

likely to be redressed by a favorable judicial decision.

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, at 1547-1548,

194 L. Ed. 2d 635 (2016).

Lewis must also show he suffered an invasion of a

legally protected interest that’s “concrete and particu

larized” that is actual or imminent, not conjectural or

hypothetical. For an injury to be “particularized,” it

must affect Lewis in a personal and individual way.

Thus, standing requires that Lewis demonstrate he’s

personally suffered an actual or threatened injury. Par

ticularization is necessary to establish injury in fact,

but it is not sufficient by itself. An injury in fact must

also be “concrete.” A “concrete” injury must actually ex

ist. When the U.S. Supreme Court has used the adjec

tive “concrete,” they mean the usual meaning of the

term: “real,” and not “abstract.” Further, “concrete” is

not always synonymous with “tangible.” Although tan

gible injuries are easier to perceive, the U.S. Supreme

Court confirmed that, in many cases, intangible inju

ries are also concrete. Spokeo, Inc. v. Robins, at 15481549.

More to the point, Lewis’ § 230 constitutional chal

lenge should not be lightly dismissed for lack of justi

ciable controversy since the normal injury in fact

standard for standing is to be relaxed in cases alleg

ing facial overbreadth of a statute because of the

danger of tolerating the existence of statutes sus

ceptible to improper censorship in violation of the

First Amendment, such as the case at bar. Red Bluff

Drive-In, Inc. v. Vance, 648 F.2d 1020,1025 n.l (5th Cir.

1981).

Further, Lewis is claiming § 230 creates an ac

ceptable species of censorship because it expressly al

lows censorship based on unconstitutionally vague

terms such as, “obscene, lewd, lascivious, filthy, exces

sively violent, harassing, or otherwise objectionable

...” which constitute a form of impermissible censor

ship. Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88

S. Ct. 1298, 20 L. Ed. 2d 225 (1968).

In Lewis’ response to Google’s motion to dismiss,

Lewis attached and incorporated his second amended

complaint (“SAC”) as Exhibit 1 (App. 54-142). Thus,

it’s consideration was mandated by both Courts below,

yet there is no indication in either order that they did

so in any meaningful way.

In the SAC, the following injuries were pled: (1)

Lewis’ revenue contract was cancelled; (2) Lewis’ vid

eos were censored in a variety of ways; and (3) his video

channel’s reach was severely limited by Google. These

acts combined caused Lewis brand damage and di

rectly impacted revenues he previously received from

the YouTube.com platform. (App. 95-108).

The District Court’s order inaccurately stated

these injuries never were pled. (App. 26). The Court of

Appeals claimed that while Lewis’ censorship was an

injury ... it didn’t apply to § 230, even though the Dis

trict Court below dismissed all Lewis’ claims based on

§ 230 protections after Google deployed it as an indem

nification defense. (App. 2).

At best, the only conclusion any reasonable person

can draw from these orders is that the District Court

made its decision with its head in the sand, completely

ignoring the record properly before it. Then, the Appel

late Court, while admitting Lewis suffered injuries as

a result of Google’s censorship, stated those injuries

didn’t implicate § 230, even though Google employed it

as a liability defense for censorship of Lewis.

Both rulings, in this regard, defy any rational or

legal reasoning . . . which explains why both decisions

related to this contain neither citations to the record,

nor apply any relevant case precedent.

What makes these rulings even more egregious is

that there is no indication in either the District Court’s

order, or in the Appellate Ruling that either court ana

lyzed the facts in the underlying case below in the light

most favorable to Lewis. Sanders v. 11 Kennedy, 794

F.2d 478,481 (9th Cir. 1986).

Were they afraid of a home visit from Antifa or

BLM? If so, succumbing to this sort of fear constitutes

a “heckler’s veto” and only leads to the death of our

constitutional republic.

Therefore, because the Courts below not only

failed to view the facts in a light most favorable to

Lewis and ignored not only well-settled case precedent,

but also ignored the undisputed facts related to Lewis*

injuries as a result of Google’s unconstitutional censor

ship, this writ should be granted.

III. §230 IMPROPERLY DELEGATES THE

REGULATION OF SPEECH TO PRIVATE

PARTIES

When Congress enacted § 230, it delegated its au

thority to regulate speech to private parties. In doing

so, when a private party, in this case Google, uses § 230

as a liability defense to claims of First Amendment in

fringement, it de facto regulates speech on behalf of

Congress by definition.

Yet, the Courts have previously held that Congress

cannot pass a law that allows them to indirectly do

what it may not do directly. Therefore, because the

First Amendment bars Congress from enacting laws

that allow the unrestrained censorship of protected ex

pression, it also cannot enact laws that allow third par

ties or private parties to censor free speech in an

unrestrained fashion either, which is exactly what

§ 230 does and is exactly the reason Lewis was cen

sored by Google. This is because Google knew that

§ 230 would indemnify them for their First Amend

ment infringements on Lewis’ protected speech ...

which is an express clause in § 230. Elrod v. Burns, 427

U.S. 347, 359 (1976); Speiser u. Randall, 357 U.S. 513,

526 (1958).

‘

Further, Google admitted in both Courts below

they’ve censored Lewis based on violations of their pol

icies . . . specifically, their hate speech policy. Yet, this

Court has repeatedly and consistently ruled hate

speech is protected speech under the First Amend

ment. Matal v. Tam, 137 S. Ct. 1744 at 1751,198 L. Ed.

2d 366 (2017).

Therefore, because § 230 improperly delegates au

thority to unconstitutionally regulate censorship of

Lewis’ Speech to Google, this writ should be accepted.

IV. GOOGLE AND YOUTUBE ARE JOINT-EN

TERPRISE STATE ACTORS

It’s important to note that since this case was orig

inally filed in August 2019, many sitting members of

Congress and many other elected and unelected fed

eral government officials have not only sanctioned

Google’s censorship, they have actively encouraged it.

To that end, many in government have and continue to

make public admissions of this and these admissions

have been reported all over the media for at least two

years.

In the case at bar, Lewis perceives the relevant

state-actor test is the nexus test. Under this test, the

Google’s actions constitute state action when there’s

sufficiently close nexus between the state and the chal

lenged action of the regulated entity so that the

Google’s actions may be fairly treated as those of the

state itself. Lansing v. City of Memphis, 202 F.3d 821,

at 830 (6th Cir. 2000).

Previously, the Northern District of California

Federal District Court stated that a finding of state ac

tion through a joint-enterprise is appropriate where a

the defendant and the state engage in a joint enter

prise with respect to the private party’s challenged ac

tions. In this case, the challenged action is the Google’s

regulation and censorship of Lewis’ protected speech

pursuant to § 230, the regulation of which is the pur

view of the State. Quigley v. Yelp, Inc., 2017 U.S. Dist.

LEXIS 103771.

Additionally, a private party’s joint participation

with the state in the seizure of disputed property in

terest is sufficient to characterize that party as a state

actor. Lewis has a property interest in his protected

speech and in Google continuing their revenue-sharing

contract, free from discrimination. Lugar v. Edmond

son Oil Co.,457 U.S. 922,941,102 S. Ct. 2744,73 L. Ed.

2d 482(1982).

Further, private parties, jointly engaged with the

state in prohibited action, are acting “under color” of

law. To act “under color” of law does not require that

the accused be an officer of the State. It is enough that

the party is a willful participant in joint activity with

the State or its agents. Id. at 941.

While normally private parties cannot be held as

state actors, there are exceptional circumstances in

which there is a constitutional right to protection. Such

a right may arise if a “special relationship” exists be

tween the state and the private party. Sargi v. Kent

City Bd. OfEduc., 70 F.3d 907, 910-13 (6th Cir. 1995).

To reiterate, the joint-action test to determine

when a private party can be considered a state actor is

also present if a private party is a willful participant

in joint action with the State or its agents, such as the

case at bar. Gallagher v. Neil Young Freedom Concert,

49 F.3d 1442 (10th Cir. 1995).

In Jackson v. Curry County, that Court dealt with

a case very similar to the case at bar regarding a pri

vate party acting in a state capacity. In that case, the

Court found the private party’s action constituted

state action. The Court applied the nexus test from the

Gallagher Court stating: In Gallagher, the Tenth Cir

cuit explained that under the nexus test, a plaintiff

must demonstrate that “there is a sufficiently close

nexus” between the government and the challenged

conduct such that the conduct may be fairly treated as

that of the State itself. Gallagher, 49 F.3d at 1448. Spe

cifically, under the nexus test, a state normally can be

held responsible for a private decision only when it has

exercised coercive power or has provided such signifi

cant encouragement, either overt or covert, that the

choice must in law be deemed to be that of the State,

such as the case herein. Gallagher, 49 F.3d at 1448.

Further, the “required inquiry” under the nexus test “is

fact-specific.” Gallagher, 49 F.3d at 1448. Jackson v.

Curry Cty, 343 F. Supp. 3d 1103,1110 (D.N.M. 2018).

In 2017, the U.S. Supreme Court in Lewis v. Clarke

considered private parties acting on behalf of foreign

sovereigns on American soil as state actors. In that

case, the state actor in question was an employee and

a member of an Indian Tribe, sued in his personal

capacity. Like the case at bar, the foreign sovereign was

never named as a party. In that case, the Court stated

that a state actor of a foreign sovereign could be held

accountable for torts committed on U.S. soil. Lewis v.

Clarke, 137 S. Ct. 1285, 197 L. Ed. 2d 631 (2017).

To reiterate, Google not only has censored Lewis,

in part, as the result of encouragement from govern

ment officials, but they’ve also publicly admitted that

they employ government officials, both domestic and

foreign, as “trusted flaggers” to bring content to

Google’s attention for censorship. (App. 10-11).

Therefore, because § 230 transforms Google into a

joint enterprise state actor who acts on the encourage

ment of government officials, this writ should be

granted.

§ 230 IS UNCONSTITUTIONALLY OVER

BROAD

Since § 230 allows content-based speech re

striction, it can stand only if it satisfies strict scrutiny.

If a statute allows the regulation of speech based on

content, it must be narrowly tailored to promote a com- .

pelling state interest. If a less restrictive alternative

would serve the states purpose, Congress-must use

that alternative. To do otherwise would be to restrict

speech without adequate justification, a course the

First Amendment does not permit. United States v.

Playboy Entertainment Group, Inc., 529 U.S. 803 at

813, 120 S. Ct. 1878, 146 L. Ed. 2d 865, 2000 WL

646196 (U.S. 2000).

The First Amendment of the U.S. Constitution

states in pertinent part: “Congress shall make no law

abridging the freedom of speech, or of the press.”

Although § 230 would normally enjoy the pre

sumption of constitutionality, this does not apply when

there’s a question of improper infringement on First

Amendment rights. Citizens for Better Environment v.

Schaumburg, 590 F.2d 220 (7th Cir. 1978), aff’d, 444

U.S. 620,100 S. Ct. 826, 63 L. Ed. 2d 73 (1980).

When measuring § 230’s constitutionality, free

speech is always the preferred position. Prince v. Mas

sachusetts, 321 U.S. 158, 165, 64 S. Ct. 438, 88 L. Ed.

645 (1944), Marsh v. Alabama, 326 U.S. 501, 66 S. Ct.

276, 90 L. Ed. 265 (1946).

To that end, Courts should generously interpret

First Amendment guarantees. Baxley v. United States,

134 F.2d 937 (4th Cir. 1943); Jones v. Moultrie, 196 Ga.

526, 27 S.E.2d 39(1943).

Further, this Court has held that the proper focus

of any First Amendment analysis is the harm inflicted

on the U.S. citizen, in this case Lewis. Heffernan v. City

of Paterson, New Jersey, 136 S. Ct. 1412,1418 (2016).

Additionally, when considering the constitutional

ity of § 230, which allows censorship, a system of cen

sorship, or classification which places prior restraint

upon expression there’s a heavy presumption that it’s

unconstitutional. Kingsley Books, Inc. v. Brown, 354

U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469, 1 Media L.

Rep. (BNA) 1111 (1957).

Also, when considering whether § 230 is unconsti

tutionally overbroad or vague, the danger that § 230

allows the silencing of some speakers whose messages

may be protected under the First Amendment provides

more reason for requiring a statute not be overly

broad. § 230’s burden on protected speech cannot be

justified if the burden could be avoided by a more care

fully drafted statute. Reno u ACLU, 521 U.S. 844, 872,

117 S. Ct. 2329,138 L. Ed. 2d 874 (1997).

Further, the test of § 230’s overbreadth turns on

the extent to which it lends itself to improper applica

tions to protected conduct, not whether it explicitly re

fers to speech or religion. People v. Fogelson, 21 Cal. 3d

158,145 Cal. Rptr. 542, 577 P.2d 677 (Cal. 1978).

As previously stated, the First Amendment does

not permit the government to do indirectly what it may

not do directly, which in the case at bar, is privatize and

empower Google to censor Lewis’ protected speech. El

rod v. Burns, at 359; Speiser v. Randall, at 513, 526;

Federal Election Comm’n v. Massachusetts Citizens for

Life, Inc., 479 U.S. 238,256,107 S. Ct. 616,93 L. Ed. 2d

539(1986).

In this analysis, § 230 is void upon its face, irre

spective of its application in a particular case, because

it does not aim specifically at evils within allowable ar

eas of state control, but, on the contrary, sweeps within

its purview other activities that in ordinary circum

stances constitute the exercise of protected expression

... then delegates this unconstitutional authority to

private parties. Thornhill v. Alabama, 310 U.S. 88, 60

S. Ct. 736,84 L. Ed. 1093,6 L.R.R.M. (BNA) 697,2 Lab.

Cas. (CCH) 117059 (1940).

To be clear, § 230 is void upon its face where

sweeping, vague, and inexact terms of the statute are

a threat to freedom of speech inherent in its existence.

Carlson v. California, 310 U.S. 106, 84 L. Ed. 1104, 60

S. Ct. 746 (1940).

Thus, under First Amendment overbreadth doc

trine, Lewis (whose own protected expression was cen

sored) has standing and is permitted to challenge § 230

on its face because it also threatens others not before

court. Board ofAirport Comm’rs v. Jews for Jesus, Inc.,

482 U.S. 569,107 S. Ct. 2568, 96 L. Ed. 2d 500 (1987).

To this end, speech is not to be selectively permit

ted or proscribed according to official preference. Child

Evangelism Fellowship v. Anderson Sch. Dist. Five, 470

F.3d 1062 (4th Cir. 2006).

In fact, the First Amendment exists to prohibit im

proper restraints on voluntary public expression of

ideas. It shields Lewis who wants to speak or publish

when Google wishes him silent; Bartnicki v. Vopper,

532 U.S. 514,121 S. Ct. 1753,149 L. Ed. 2d 787 (2001).

Also, the First Amendment’s hostility to contentbased regulation extends not only to restrictions on

particular viewpoints, but also to prohibition of public

discussion of an entire topic, which is what § 230 al

lows. Arkansas Writers’ Project, Inc. v. Ragland, 481

U.S. 221,107 S. Ct. 1722,95 L. Ed. 2d 209,13 Media L.

Rep. (BNA) 2313 (1987).

To that end, Free Speech also includes the right to

persuade others to change their views and cannot be

censored simply because the speech is offensive. Hill v.

Colorado, 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d

597 (2000).

Therefore, for purposes of determining the validity

of § 230’s limit on speech under the Constitution’s First

Amendment, there is no de minimis exception for a

speech restriction that lacks sufficient tailoring or jus

tification. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,

541, 121 S. Ct. 2404,150 L. Ed. 2d 532 (2001).

However, when Congress enacted 47 U.S.C. § 230

into law and included the following clause: “No pro

vider or user of an interactive computer service shall

be held liable on account of: (A) any action voluntarily

taken in good faith to restrict access to or availability

of material that the provider or user considers to be

obscene, lewd, lascivious, filthy, excessively violent,

harassing, or otherwise objectionable, whether or not

such material is constitutionally protected ...” they

passed a law so unconstitutionally vague and over

broad that it allows Google to regulate Lewis’ constitu

tionally

protected

speech

without

liability,

transforming them into joint-enterprise state actors.

Since Google finds “hate speech” objectionable, they

use this clause to corrupt § 230 to censor Lewis’ pro

tected expression on that basis as well. (App. 15-18,

App. 49-51).

So we’re clear, Lewis is not the Google’s only vic

tim, tens of millions of other Americans have had their

protected expression censored as well. This has been

widely reported in the news and is common knowledge.

Those censored under § 230’s “otherwise objectionable”

“hate speech” pretext for exercising protected expres

sion include: pundits, government officials, political

commentators, journalists, and active political candi

dates. In U.S. law, there’s no “hate speech” exception to

free speech protections and speech may not be banned

on the ground that it expresses ideas that offend.

Matal v. Tam at 1751.

The fact that § 230 allows any private party or

online computer service to regulate protected speech,

for any reason under the “otherwise objectionable”

standard shocks the conscience and strikes at the

heart of First Amendment overbreadth doctrine.

§ 230 isn’t narrowly tailored limit censorship to

target specific evils and doesn’t define its terms. Fur

ther, because it privatizes government regulation of

speech, which is barred by the Constitution and wellsettled case precedent, it’s unconstitutional on its face.

§ 230 allows Google to censor Lewis whenever and

however they want, without consequence. So, even

though the Packingham Court found that social media

sites like YouTube.com are digital public squares

where speech enjoys constitutional protections under

the First Amendment, § 230, as written, allows Google

to ignore U.S. Supreme Court decisions and void Lewis’

protected speech, and is therefore overbroad on those

grounds as well. Packingham v. North Carolina at

1736-1736.

To be potentially constitutional, § 230 should be

narrowed in scope by removing the clause: “ . . . other

wise objectionable, whether or not such material is

constitutionally protected.” These clauses allow censor

ship of speech based on an unlawful and constitution

ally indefensible “hate speech” standard by virtue of

this language when combined with the “otherwise ob

jectionable” pretext.

The First Amendment’s bar on enacting laws that

allow the abridgment of Free Speech doesn’t exempt

laws that allow censorship delegated by Congress to

private actors. So, even if this Court determines Google

is a private party, that’s irrelevant to whether or not

§ 230 is unconstitutional and void on its face, because

§ 230 transforms Google into joint-enterprise state ac

tors, by virtue of empowering them to regulate and

censor protected expression.

For these reasons, this writ should be granted and

§ 230 should be found unconstitutional and struck

down.

CONCLUSION

For the reasons set forth herein, the Petitioner re

spectfully requests this Honorable Court grant the pe

tition for a writ of certiorari.

Respectfully submitted this 13th day of Septem

ber, 2021

Bob Lewis

Petitioner Pro Se

2695 Patterson Rd., Suite 2, Unit 172

Grand Junction, CO 81506

Ph: 210-888-9200

Email: bobbie.lewis@gmail.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.