Facebook Still Isn’t Obligated to Publish Russian Troll Content–FAN v. Facebook
In response to Russian interference with our 2016 presidential elections, Facebook belatedly purged content that it believed came from Russian trolls. That crackdown shut down the account of the “Federal Agency of News” (FAN), which allegedly has ties to Russia’s troll farm, the Internet Research Agency. Most entities facing similar accusations would try to fade into obscurity, but FAN chose to sue Facebook for the removal. In July, in one of the most important Section 230 rulings of 2019, Judge Koh dismissed FAN’s lawsuit without prejudice. Now, Judge Koh has unsurprisingly dismissed the case with prejudice, teeing up the case for its inevitable and doomed appeal to the Ninth Circuit.
(Note: because of the overlap, I encourage you to review my July blog post as well).
Section 230(c)(1). Judge Koh again says that Section 230(c)(1) applies to account termination because it’s Facebook’s choice not to publish third-party content (in this case, FAN’s content).
To get around this, FAN tried the lame theory that “Facebook utilizes ‘data mining’ ‘to direct users to content in order to generate billions in revenue’ and therefore creates content such that Facebook’s actions fall outside the ambit of Section 230’s protections.” This argument has always struck me as obviously and embarrassingly asinine–it just restates the consequences of publishing content. Not surprisingly, the data mining argument fails in court yet again:
Plaintiffs make a similar argument—that recommending FAN’s content to Facebook users through advertisements makes Facebook a provider of that content. The Ninth Circuit, however, held that such actions do not create “content in and of themselves.” [cites to Dyroff, Force v. Facebook]
The court then explains why Section 230 applies to all of the plaintiff’s claims except the Bivens First Amendment claim: “Plaintiffs’ claims are based on Facebook’s decision not to publish FAN’s content….Ninth Circuit law under Barnes unambiguously establishes that Plaintiffs’ claims treat Facebook as a publisher.” This wipes out the claims for Unruh Civil Rights Act, breach of contract, and breach of the implied covenant of good faith and fair dealing. This reiterates that contract claims are not a guaranteed plead-around to Section 230.
First Amendment Claim. Facebook isn’t a state actor. Duh. Judge Koh says “courts have previously rejected attempts to apply the First Amendment to Facebook.” Cites to Freedom Watch v. Google, Young v. Facebook, Shulman v. Facebook, “Numerous other courts have also declined to treat similar private social media corporations, as well as online service providers, as state actors….by operating its social media website, Facebook has not engaged in any functions exclusively reserved for the government.” Cites to Howard v AOL, KinderStart v. Google, Nyabwa v. Facebook, Shulman v. Facebook, Langdon v. Google.
Facebook also isn’t a public forum: “case law has rejected the notion that private companies such as Facebook are public fora…. 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.” Cites to Prager U v. Google, Buza v. Yahoo, Langdon v. Google.
* * *
As I mentioned in my prior post, FAN’s lawyers were Dennis Edward Boyle, Whiteford Taylor and Preston LLP; Blerina Jasari, Whiteford Taylor and Preston LLP; and Christopher Daniel Sullivan, Diamond McCarthy LLP. I wonder if the rubles were worth it.
While I’m sure most readers aren’t sympathetic to FAN, I can’t get over how many of FAN’s arguments mirror arguments about Section 230 and the First Amendment made by people who I have always assumed are well-meaning. This case should be a wake-up call to those folks. If you’re arguing for a data-mining exception to Section 230, or that social media services are state actors or public fora, YOU AND ALLEGED RUSSIAN TROLLS ARE MAKING THE EXACT SAME ARGUMENTS. Are you OK with that? If I learned that my positions coincided perfectly with those of alleged Russian trolls, I would seriously reconsider my positions.
Case citation: Federal Agency of News LLC v. Facebook, Inc., 2020 WL 137154 (N.D. Cal. Jan. 13, 2020)