Yet Another Court Says Facebook Isn’t a State Actor–Brock v. Zuckerberg

June 28, 2021 · by · in Content Regulation, Derivative Liability

Facebook allegedly “censored” the plaintiff “at least 30 times.” Facebook flagged his content as spam, hate speech, abusive, and “partly false.” He sued Facebook for violating the First, Fifth, Sixth, and Fourteenth Amendments. He also claims Facebook “violated Plaintiff’s ‘right to free speech’ by allowing the “Facebook Oversight Board,” which he presumes is responsible for ensuring user compliance with Facebook’s Community Standards, to ‘censor’ his content.” [Note: this is the first, but surely not the last, appearance of the Oversight Board in the Lexis caselaw database.] Of course, there’s a RICO claim too. A judge has called this plaintiff a serial litigant.

First Amendment. “circuits that have confronted the issue have unanimously held platforms like Facebook are not state actors….Other courts throughout the country have also declined to treat Facebook as a state actor and have upheld the company’s ability to remove content.” Cites to Freedom Watch v. Google; Prager U. v. YouTube; Ebeid v. Facebook; Zimmerman v. Facebook. Thus, the court says plainly, “Facebook is not a state actor.”

To work around this, the plaintiff alleged that Facebook performs a traditional government function, like delivering mail. The court responds:

“[i]t is ‘not enough’ that the relevant function is something that a government has ‘exercised . . . in the past, or still does’ or ‘that the function serves the public good.'” Prager Univ., 951 F.3d at 998 (quoting Halleck, 139 S. Ct. at 1928-29). The government must have performed the function in question exclusively as well. Halleck, 139 S. Ct. at 1929. Facilitating the exchange of communication or hosting a platform for discussion are not activities “that only governmental entities have traditionally performed.” Prager Univ., 951 F.3d at 998 (quoting Halleck, 139 S. Ct. at 1930). Thus, Plaintiff may not “avoid the state action question” by claiming that Facebook is serving a public function.

The plaintiff argued that Facebook is the new town square. Zimmerman rejected that argument, and “courts have refused to extend Marsh’s holding to social media cases” (cite to Prager U). Also, the plaintiff unsuccessfully claimed that Facebook’s status as a publicly traded company made it a state actor. This is a crazy argument, and it was already rejected in the Freedom Watch case.

Section 230. The court is confused exactly what claims were pled, but nevertheless it applies the standard 3-part test for Section 230(c)(1) immunity:

  • ICS. Yes, per Cohen v. Facebook.
  • Third-Party Content. The complaint makes clear that Facebook didn’t provide the content at issue (the plaintiff did).
  • Publisher/Speaker Claims. The court cites the standard Zeran language that 230 protects traditional editorial functions. Cites to LeadClick and Domen.

“Facebook is therefore immune under Section 230(c)(1) from claims related to its removal of objectionable content.”

RICO. It’s never civil RICO.

[Note: Jess Miers and I have a draft article coming very soon comprehensively covering lawsuits over account terminations/content removals like this case. If you are interested in commenting on the draft, email me.]

Case citation: Brock v. Zuckerberg, 2021 U.S. Dist. LEXIS 119021 (S.D.N.Y. June 25, 2021). The complaint.

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