Facebook Wins Appeal Over Allegedly Discriminatory Content Removal–Sikhs for Justice v. Facebook

[It’s impossible to blog about Section 230 without reminding you that Congress is on the cusp of gutting it.]

I previously summarized this case:

Sikhs for Justice (“SFJ”) is a human rights group advocating for Sikh independence in the Indian state of Punjab. It set up a Facebook page for its organization. SFJ alleges that, in May, Facebook blocked its page in India at the Indian government’s behest. Facebook allegedly did not restore access to the page despite repeated requests, nor did it provide any explanation for the page block. SFJ sued Facebook for several causes of action, including a federal claim of race discrimination.

Judge Koh granted Facebook’s motion to dismiss on Section 230 grounds. The Ninth Circuit affirmed in a short non-precedential memo opinion. The court’s entire discussion about Section 230:

The district court properly dismissed Sikhs for Justice, Inc.’s (SFJ) discrimination claim under Title II of the Civil Rights Act of 1964. The Communications Decency Act (CDA) provides interactive computer service providers immunity from civil liability when the claim is premised upon the provider’s role as “the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1), (c)(2). “This grant of immunity applies only if the interactive computer service provider is not also an ‘information content provider,’ which is defined as someone who is ‘responsible, in whole or in part, for the creation or development of’ the offending content.” Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (quoting 47 U.S.C. § 230(f)(3)).

Here, it is undisputed that Facebook is an interactive computer service provider. SFJ seeks to hold Facebook liable as a publisher for hosting, and later blocking, SFJ’s online content. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1103 (9th Cir. 2009), as amended (Sept. 28, 2009) (“removing content is something publishers do”). But SFJ, not Facebook, is the party solely responsible for creating and developing the content on SFJ’s webpage. As such, Facebook cannot be deemed an “information content provider,” and it is therefore entitled to the immunity conferred under § 230. Moreover, we have found no authority, and SFJ fails to cite any authority, holding that Title II of the Civil Rights Act of 1964 provides an exception to the immunity afforded to Facebook under the CDA.

Because SFJ’s Title II claim is barred by the CDA, granting SFJ leave to amend its complaint would have been futile. As a result, the district court properly dismissed SFJ’s Title II claim with prejudice.

The appeals court sidesteps the (c)(1) vs. (c)(2) distinction that Judge Koh’s opinion collapsed. In theory, Facebook’s removal of the Sikhs for Justice page should be covered by Section 230(c)(2), which applies to a service’s filtering decisions, i.e., the decision to block content. Instead, Judge Koh ruled for Facebook on Section 230(c)(1) grounds. 230(c)(1) says websites aren’t liable for third party content, and here the “third party” content is the plaintiff’s content, not content from a independent non-litigant. This is a good outcome for Section 230 defendants, but it does seem to highlight Section 230(c)(2)’s increasing irrelevance.

The appeals court’s opinion unambiguously states that Section 230 applies to Title II discrimination claims. This isn’t unprecedented; the 2003 Noah v. AOL opinion said the same thing. Still, it was clear that the Ninth Circuit was troubled by the application of Section 230 to housing discrimination claims in the Roommates.com case. Nearly a decade later, the intersection between Section 230 and discrimination claims apparently generates far less angst in the Ninth Circuit.

Case citation: Sikhs for Justice, Inc. v. Facebook, Inc., 2017 WL 4118358 (9th Cir. Sept. 13, 2017)