Facebook Can Reject Unwanted Ads–Newton v. Meta

September 8, 2023 · by · in Content Regulation, Derivative Liability, Licensing/Contracts, Marketing

This is yet another online content removal lawsuit, and it reaches the obvious and inevitable result that dozens of cases have reached before it. The plaintiffs sought to run Facebook ads for the movie “Beautiful Blue Eyes,” a movie about the Holocaust. Facebook allegedly rejected the ads as violative of its Holocaust misinformation policy, a determination the film producers disagree with. Allegedly, the inability to run Facebook ads caused the movie to underperform financially. (The Wikipedia entry gives some clues about why the movie may not have performed as well as the producers hoped).

The lawsuit against Facebook for refusing the film ads is an easy dismissal. The court dismisses the contract and IIED claims on Section 230 grounds. The only question at issue is whether the lawsuit treats Facebook’s refusal as a publisher/speaker action. This is not a hard question:

These claims are based entirely on the allegation that Facebook declined to post plaintiffs’ content. That is a quintessential publishing decision for which Facebook is “perforce immune.”

This is true even with respect to the contract breach claim, despite the Barnes ruling:

Barnes states that a platform may be on the hook if it makes a specific promise to the user “with the constructive intent that it be enforceable,” because such a promise operates like a “waiver” of CDA immunity. The promise in Barnes was by a Yahoo executive who told the plaintiff that Yahoo “would take care of” unauthorized profiles. No such promise, or anything like it, is alleged here. The Newtons make only the general allegation that Facebook did not “live up to its written Community Standards.” That will
not do

The court cites King v. Meta, but Murphy v. Twitter would have also been a good citation.

Newton’s fraud claim fails for insufficient pleading. The court defers considering whether 230 could preempt it too.

In our Advertising & Marketing Law casebook, Prof. Tushnet and I include the Langdon v. Google ruling from 2007. That case also involved an online service’s refusal to accept ads, and the court dismissed the claims for multiple reasons, including 230 and the First Amendment. This court didn’t cite the Langdon case, but it shows how the legal principles applied by the court have prevailed for over 15 years. Plus, this is a good policy outcome: had the plaintiffs prevailed in this case, it would create must-carry obligations that are socially suboptimal.

Case citation: Newton v. Meta Platforms, Inc., 2023 WL 5749258 (N.D. Cal. Sept. 6, 2023)

UPDATE: Newton v. Meta Platforms Inc., 2024 U.S. Dist. LEXIS 4642 (N.D. Cal. Jan. 9, 2024). The court dismisses the second amended complaint, which “again underscores that plaintiffs are challenging a publishing decision made by Facebook.” Regarding the fraud claim:

The quoted statements by Facebook do not say that Facebook will eradicate all hate speech from the platform, and the fact that the Newtons’ advertisements were taken down while hate speech was said to stay in circulation on Facebook, does not plausibly allege that the policy was a ruse. Plaintiffs’ suggestions that some of Facebook’s content moderators may be antisemitic is tangentially related at best to anything here that might state a claim against Facebook.