Russia Fucked With American Democracy, But It Can’t Fuck With Section 230–Federal Agency of News v. Facebook

July 22, 2019 · by · in Content Regulation, Derivative Liability, Licensing/Contracts

230-tattoo-300x300The plaintiff FAN allegedly is part of a Russian government agency, Internet Research Agency, that undermined the integrity of our 2016 presidential elections. In other words, FAN apparently was a Russian troll operation. As part of its post-2016 election cleanup, Facebook removed FAN’s account. I think most folks would cheer that removal–except they are angry that Facebook didn’t do it before the election. FAN was less pleased by the removal. It sued Facebook for removing the account, asserting 5 claims: “(1) a Bivens claim for violation of the First Amendment; (2) “damages under Title II of the U.S. Civil Rights Act of 1964 and 42 U.S.C. Section 1983”; (3) “damages under the California Unruh Civil Rights Act”; (4) breach of contract; and (5) breach of implied covenant of good faith and fair dealing.” Facebook defended the Bivens claim on lack of state action and the other claims on Section 230. Judge Koh rules for Facebook on all fronts.

Section 230

Judge Koh applies the standard three-part test for Section 230(c)(1) (as usual, Section 230(c)(2) doesn’t even get a mention):

ICS Provider: “Facebook is unquestionably an interactive computer service.” Cites to Sikhs for Justice v. Facebook rulings (both the lower court and appellate court), Klayman v. Zuckerberg, and Caracciolli v. Facebook.

Third-Party Content. As she did in her Sikhs for Justice ruling, Judge Koh treats the plaintiff’s content as third-party content to Facebook: “Plaintiffs do not challenge that the information for which Plaintiffs seek to hold Facebook liable for removing—FAN’s Facebook account, posts, and content—was not provided by Facebook, but rather, by FAN.” Cite to Lancaster v. Alphabet.

Publisher/Speaker Claims. “Plaintiffs’ claims are based on Facebook’s decision not to publish FAN’s content…because Plaintiffs’ second through fifth claims are predicated on Facebook’s decision to remove content, Ninth Circuit law under Barnes unambiguously establishes that Plaintiffs’ claims treat Facebook as a publisher.” 

Facebook satisfied the prima facie elements of a Section 230 defense for all claims other than the Bivens claim. Thus, Section 230 once again immunized claims for breach of contract and the implied covenant of good faith. That isn’t unprecedented, but it’s a reminder to plaintiffs who think that contract claims naturally bypass Section 230. They don’t.

In an unusual move, the plaintiff argued that Section 230(c)(1) doesn’t apply to political speech. I can’t recall seeing this argument before, which isn’t surprising because it’s so dumb. At best, it’s the kind of argument we’d expect from pro se litigants, not expensive BigLaw lawyers. Judge Koh’s response is terse and exceptionally clear: “Immunity under the Communications Decency Act does not contain a political speech exception…No distinction is made between political speech and non-political speech.” Cites to Sikhs for Justice v. Facebook and Ebeid v. Facebook.

The plaintiff also argued that Facebook’s immunity runs contrary to Congress’ goals for Section 230(c)(1). This is completely ahistorical; it jaw-droppingly misapprehends why Congress enacted Section 230 in the first place. Is the plaintiff really arguing that Congress intended to force online services to carry content from Russian trolls??? Judge Koh doesn’t directly respond to this argument; she just points out that policy arguments are irrelevant in the face of the clear statutory text.

Judge Koh generously gives the plaintiff a chance to replead. Because that surely will be futile, I hope she shreds any further attempts to resurrect this case. [Note: unfortunately, this is not an anti-SLAPP motion to strike. Otherwise, the inevitable fee shift possibly would have been the only time Facebook legitimately accepted money from the Russians.]

No State Action

Judge Koh says Facebook isn’t a state actor. Cites to Freedom Watch v. Facebook, Young v. Facebook, and Shulman v. Facebook. “Thus, Facebook’s deletion of FAN’s profile, page, and content is private conduct that does not constitute governmental action.” [More precisely, I’d say it’s the result of Facebook’s editorial discretion subject to Constitutional protections for free speech and free press.]

Facebook Isn’t a Public Forum. “Courts have rejected the notion that private corporations providing services via the internet are public fora for purposes of the First Amendment.” Cites to Prager University v. Google, Ebeid v. Facebook, Buza v. Yahoo, and Langdon v. Google. The judge explains why in clear and crisp language:

simply because Facebook has many users that create or share content, it does not mean that Facebook, a private social media company by Plaintiffs’ own admission in the complaint, becomes a public forum

I hope this passage becomes a standard citation against arguments seeking to weaponize the public forum doctrine into a must-carry requirement.

Judge Koh rejects the Marsh company-town analogy: “Plaintiffs do not allege that Facebook assumes all of the attributes of a state-created municipality or that Facebook was performing the full spectrum of municipal powers and stood in the shoes of the state.”

Performing Government Functions. “Facebook did not engage in functions that are traditionally and exclusively functions of the state….There are no allegations that Facebook holds public elections, governs a town, or serves as an international peacekeeping force.” Cites to Prager University v. Google, Ebeid v. Facebook, Harris v. Kern County Sheriffs, Cyber Promotions v. AOL, Howard v. AOL, KinderStart v. Google, Nyabwa v. Facebook, Shulman v. Facebook, and Langdon v. Google.

Joint Action Doctrine. “Facebook allegedly supplied the government with information that might relate to the government’s investigation into Russian interference with the 2016 presidential election. However, the case law is unequivocal that “supplying information [to the state] alone does not amount to conspiracy or joint action.”… there is no joint action here because there is no indication that the government directly or jointly conceived, facilitated, or performed a role in Facebook’s decision to shut down FAN’s Facebook page or the decision to prevent FAN from accessing its Facebook account.”

Implications

This case raises topics of intense policy interest, and Judge Koh’s opinion resolves those issues in a clean, decisive, and persuasive way. The opinion reinforces that social media providers, and other UGC sites, can remove unwanted content per Section 230, and they can’t be forced into must-carry obligations by twisted Constitutional arguments. Judge Koh’s opinion in Sikhs for Justice v. Facebook became a foundational ruling preserving Facebook’s editorial discretion. I hope this ruling becomes equally seminal. I think the ruling is so well-constructed and well-cited that it will be easy for the Ninth Circuit to affirm it, just as they did with the Sikhs for Justice ruling.

Just a reminder to anyone complaining about Facebook “censoring” them, arguing that Facebook is the new public square, or demanding that Facebook “must carry” content neutrally: you are making the exact same arguments as Russian trolls seeking to destroy our country. Either that’s the goal you intentionally want, or you are so narrowly focused on your concerns that you don’t realize or care how Russian trolls are weaponizing your arguments against our democracy. Want to Make America Great Again? (or keep America great, if we never stopped being great). Stop trying to destroy the editorial freedom of online publishers to decide what’s fit to publish and what isn’t.

In particular, this case reiterates the depravity of Sen. Hawley’s “[Ending] Support for Internet Censorship Act.” FAN was promoting its own political viewpoints, so Sen. Hawley’s proposal would force Facebook and other major Internet companies to treat FAN’s trolling as equally legitimate as the Republican Party’s social media activities. (Please, no “jokes” about how Republicans have become unexpectedly enthusiastic supporters of Russia’s policy and world views). Why would Sen. Hawley–and the few supporters of his bill–want to prevent online crackdowns against Russian trolls? It appears Sen. Hawley doesn’t understand the consequences of his bill–or worse, perhaps he does.

Personnel note: the Russian troll’s lawyers are Dennis Edward Boyle and Blerina Jasari of Whiteford Taylor and Preston LLP and Christopher Daniel Sullivan of Diamond McCarthy LLP. I know lawyers view themselves as having an obligation to represent unpopular clients, but really?

Case citation: Federal Agency of News LLC v. Facebook, Inc., 2019 WL 3254208 (N.D. Cal. July 20, 2019)

Some Related Posts (from 2019):

Plus my 2011 article on 230(c)(2) and account terminations.