One More Time: Facebook Isn’t a State Actor–Atkinson v. Facebook

Cameron Atkinson self-describes as “a Christian, a trial and appellate lawyer at Pattis & Smith, LLC, a former business consultant, a published constitutional scholar, and a general hell-raiser.” Publicly testing his appellate/Conlaw chops and hell-raising skills, he took his own lawsuit to the Ninth Circuit. It didn’t go so well for him.

Atkinson sued Facebook for removing his posts. The district court ruled against him, and that ruling is in our dataset of account termination/content removal cases (reminder: none of them succeeded). On appeal, he advanced several of the standard legal arguments for censoring Internet services. The Ninth Circuit breezily rejected the arguments in an unpublished (and unfortunately not especially well-written) memo opinion issued without oral argument:

State Action. Atkinson “did not allege sufficient facts to infer that Meta Platforms is a government actor.” Federal coercion does not turn the results into state action, plus he didn’t allege federal coercion because “his allegations cast Meta Platforms’ decision to adopt community standards as a self-interested business decision.”

The complaint alleges insufficient facts showing that Facebook took joint actions with the government. The panel suggests that it would take “an agreement between state governments and Meta Platforms; state participation in Meta Platforms’ corporate governance; financial ties between state governments and Meta Platforms; or Meta Platforms’ regulation of state activities,” none of which Atkinson alleged. (Before the next plaintiffs get any ideas, each of these options has many more requirements that you won’t satisfy).

“Finally, Section 230 of the Communications Decency Act does not independently transform Meta Platforms into a government actor for First Amendment purposes.”

Section 230. The court reiterates that Section 230 doesn’t create a private right of action: “to the extent that it addresses private suits at all, Section 230 only uses ‘remedy-foreclosing’ language….in its broader context, Section 230’s ‘aggregate focus’ on promoting free speech online—rather than on ‘the needs of any particular person’—cautions against concluding that a private cause of action exists.”

Breach of Implied Warranty. “Atkinson’s breach of implied warranty claim targets Meta Platforms’ publishing decisions and is, therefore, barred under Section 230(c)(1). Atkinson’s implied warranty allegations all center on Meta Platforms’ removal of his posts….Atkinson cannot circumvent Section 230(c)(1) ‘by changing the name of the theory’ or mislabeling ‘an action that is quintessentially that of a publisher.'” Once again, Section 230 can preempt contract-based claims that are backdoor workarounds to Section 230. The leading case on that point is Murphy v. Twitter.

B&P 17200. “Atkinson’s California Unfair Competition Law claim would target the same publishing conduct as his implied warranty claim—the removal of his posts—it is also barred by Section 230(c)(1).”

Implications. This opinion isn’t precedential, which is too bad because this opinion would be useful precedent for many other censorial cases percolating in the court system.

This ruling provides a good preview of how the Ninth Circuit will handle Trump’s lawsuits against Twitter, Facebook, and YouTube. Those cases have no chance of success in the Ninth Circuit. The only question is whether Trump can get the Supreme Court to grant certiorari. If he can, all bets will be off.

Case Citation: Cameron Lee Atkinson v. Meta Platforms, Inc., 2021 WL 5447022 (9th Cir. Nov. 22, 2021)

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