Responding to the DiMeo lawsuit against Tucker Max that raises the newly amended 47 U.S.C. 223(a)(1)(c) as a claim, Eugene writes:
I’ve argued before why this law is constitutionally problematic. Here I just want to point out that critics of the new law, such as Declan McCullagh, were right to predict that the law would be used in troubling ways. I hope that eventually the courts will strike down parts of the law as unconstitutional, or interpret the statute very narrowly to avoid constitutional problems. But for now plaintiffs can burden defendants with this cause of action, and perhaps deter prospective speakers and Web site operators.
Incidentally, I think Tucker Max, as the operator of the site rather than the poster, should be immune under 47 U.S.C. ยง 230, both from liability under the new statute and from libel liability. But the anonymous poster, if his name is discovered in the course of the litigation, would have no such immunity, and in any event Max’s immunity claim, while strong, is unfortunately not open and shut.
Unless I’m missing something, though, DiMeo’s claim is utterly frivolous. 47 U.S.C. 223(a)(1)(c) is a criminal statute, not a civil statute. It does not support a private right of action, see, e.g., Jensen v. Shrively, 2003 WL 917969 (N.D. Ca. 2003); Moore v. Principal Credit Corp., 1998 WL 378387 (N.D.Miss. 1998), regardless of whether Section 230 provides immunity.
In light of that, I’m not sure how Eugene’s argument can work. Surely a statute is not burdensome on speech simply because a lawyer read Declan’s article and decided to make a completely silly legal argument. What am I missing?