Facebook Isn’t a Constructive Public Trust–Cameron Atkinson v. Facebook

Cameron Atkinson self-describes himself as “a Christian, a published constitutional scholar, a soon-to-be trial and appellate lawyer, and a general hell-raiser.” He also describes himself as “Liberty’s sheriff” and you can even buy t-shirts apparently depicting him in that role. Atkinson sued Facebook for allegedly censoring several of his posts. The court dismisses his lawsuit.

First Amendment. As confirmed in PragerU v. YouTube, an online service “censors” its users only if it is a state actor. Citing Packingham, Atkinson argued that Facebook has (as the court summarized) “a quasi-monopolistic power over a quintessential public forum….[and] social networks like Facebook are akin to the public squares and meeting places conventionally managed by the government.” The court gently responds that these “arguments have been considered and rejected before,” citing Halleck and PragerU. The court attempts to explain:

Atkinson does not differentiate Facebook from YouTube or other social networks that primarily host the speech of others. He does not grapple with this Circuit’s precedent. Instead, he attempts to craft a niche for Facebook among completely unrelated, recognized public functions such as the maintenance of bridges, ferries, turnpikes, and railroads

Atkinson also suggested “that state officials are involved in Facebook’s decision-making process” which means Facebook is intertwined with the government. However, the court says:

Atkinson pleads no specific facts about which members of the United States government pressured Facebook, how they did so, or any causal connection between the alleged pressure and Facebook’s actions. He has therefore pointed to no facts creating an inference “plausible on its face” that the federal government forced Facebook to create fuzzy community standards capable of being weaponized against the Trump administration….Atkinson stumbles at the threshold. Because he cannot show that Facebook’s actions are attributable to the government, he may not proceed to the substance of his First Amendment claim.

Section 230. The court says Atkinson advanced “the novel theory that the immunity granted to publishers under the CDA ‘transforms [Facebook’s] editorial decision-making process into management of a constructive public trust,’ which provides the basis for a private right of action.” (If you’re confused by how constructive public trusts could apply to this context, trust me, you’re not the only one). The court gently responds:

Atkinson’s invitation to find a new, private right of action under § 230, as well as a new application of the public trust doctrine, must be declined…He does not…set forth any support for the proposition that Congress intended to impose the management of a constructive public trust as the tradeoff for the receipt of publishing immunity. Additionally, Atkinson does not, and cannot, point to any textual support in § 230 for a private right of action. To the contrary, while subsections (a) and (b) set out, in specific detail, the findings and policy animating the passage of the CDA, those sections do not evince or even allude to a Congressional intent to imbue third parties with the right to sue the very internet providers to which protection was being provided. Furthermore, the public trust doctrine has never been applied outside the environmental context, and certainly not to the internet at large. The degree of departure from settled law for which Plaintiff is pressing is considerable. Without statutory, precedential, or policy basis, the public trust doctrine will not find a new application to the internet context.

Phew, I don’t need to do a crash-course on the law of constructive public trusts to maintain my Section 230 expertise!

As many other plaintiffs have done, Atkinson tried to get around Section 230 by claiming a violation of the implied covenant of good faith and fair dealing. This fails too. Citing Barnes, the court says “Atkinson’s claim turns on Facebook’s editorial decision to remove, or decline to publish, his posts to its platform. This type of decision is exactly within the scope of a publisher’s task to ‘review[] material submitted for publication’ and ‘decide[] whether to publish it.’…Though Atkinson’s claim is styled as a contract cause of action, he is really accusing Facebook of utilizing its community standards to make classic publishing decisions.” This ruling adds to the jurisprudence finding that Section 230 can immunize breach of express/implied contract claims.

In a footnote, the court adds: “Atkinson’s reliance on § 230(c)(2)(A) is also misguided. Though Facebook did not assert it as an affirmative defense in its Motion to Dismiss, it need not. That provision is merely an alternative ledge on which interactive computer providers seeking immunity may perch.”

Not surprisingly, Atkinson has already appealed this decision to the Ninth Circuit. After all, he promised he was “a soon-to-be trial and appellate lawyer.”

Case citation: Atkinson v. Facebook Inc., 20-cv-05546-RS (N.D. Cal. Dec. 7, 2020)

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