Content Regulation – Technology & Marketing Law Blog

11th Circuit Says Grocery Store Website Isn’t Covered by the ADA–Gil v. Winn-Dixie

Eric Goldman — Sun, 18 Apr 2021 14:48:29 +0000

Winn-Dixie is a major grocery store chain in the South. Their website offers multiple functions, but does NOT take grocery orders online. The website features at issue in this case are the ability to refill prescriptions online and to link coupons to the shopper’s account so they will automatically apply at in-store checkout.

The plaintiff, Gil, has a visual impairment, and he uses screen reading software to browse the Internet. The parties stipulated that Winn-Dixie’s website “was not designed specifically to integrate with screen reader software.” As a consequence, the screen reader software didn’t work with the website’s prescription refill functionality.

Gil sued Winn-Dixie for violating the ADA (Title III). Winn-Dixie admitted that its physical stores were places of public accommodation subject to Title III, but denied that its websites were similarly covered by Title III. After a bench trial, the district court ruled for Gil. In a 2-1 decision, the 11th Circuit reversed.

Are Websites Places of Public Accommodation? Title III expressly defines “grocery stores” as places of public accommodation. However, the majority says:

The statutory language in Title III of the ADA defining ‘public accommodation’ is unambiguous and clear….All of these listed types of locations are tangible, physical places. No intangible places or spaces, such as websites, are listed. Thus, we conclude that, pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places. Necessarily then, we hold hat websites are not a place of public accommodation under Title III of the ADA. Therefore, Gil’s inability to access and communicate with the website itself is not a violation of Title III

The majority notes a circuit split on this question. It cites the 3rd, 6th, and 9th Circuits on its side, and the 1st and 7th Circuits in opposition.

Title III also can be violated if there are “intangible barriers” to enjoying places of public accommodation. That doctrine doesn’t help Gil either:

Winn-Dixie’s limited use website, although inaccessible by individuals who are visually disabled, does not function as an intangible barrier to an individual with a visual disability accessing the goods, services, privileges, or advantages of Winn-Dixie’s physical stores (the operative place of public accommodation). Specifically, Winn-Dixie’s website has only limited functionality. Most importantly, it is not a point of sale; all purchases must occur at the store. Further, all interactions with Winn-Dixie which can be (although need not be) initiated on the website must be completed in-store: prescription pick-ups and redemption of coupons. And nothing prevents Gil from shopping at the physical store. In fact, he had done so for many years before he freely chose to stop shopping there. Although Gil was not always happy with the speed or privacy of the service he received at the pharmacy, nothing prevented Gil from refilling his prescriptions during his time as a Winn-Dixie customer. And for years, Gil used paper coupons at Winn-Dixie’s stores, despite any inconveniences such use entailed.

The majority distinguishes the Ninth Circuit’s Robles v. Domino’s case because Winn-Dixie didn’t accept online orders, unlike Domino’s website. Also, the Ninth Circuit adopted a legal standard regarding the website’s “nexus” with the physical business, and the 11th Circuit has rejected that nexus theory.

A dissent says: “Winn-Dixie’s visually-impaired customers therefore were treated differently than its sighted customers and denied the full and equal enjoyment of services, privileges, and advantages offered by Winn-Dixie stores. I would hold that this inferior treatment amounted to disability discrimination by the operator of a place of public accommodation under Title III of the ADA….Winn-Dixie treated Gil as a second-class customer, offering him different and inferior prescription and coupon services than it provided to its nondisabled customers.”

Implications

The majority’s conclusion is not novel. I still teach the (uncited) 2003 Noah v. AOL decision. It was a Title II case, not a Title III case, but it defined places of public accommodation as “actual, physical places and structures.” That did not include AOL.

Despite the majority’s rooting in the decades-old precedent, this ruling surely compounds the misery of any lawyer trying to figure out when the ADA applies to websites. Superficially, this ruling can be harmonized with cases like Robles. If the website accepts e-commerce orders, the ADA applies; if not, no. However, the discussion about “intangible barriers,” “auxiliary aids,” and “nexus” between websites and physical businesses is sufficiently cloudy that I doubt any lawyer feels really secure advising on this question. This might be a good case for an en banc rehearing (especially because the deciding vote was cast by a district court judge sitting by designation); and the clutter among the circuits sets this issue up for an eventual Supreme Court cert if Congress doesn’t fix the statutory language itself.

On that front, recall Justice Thomas embraced “places of public accommodation” as a way of mandating must-carry rules on Internet services. If a website ADA case does go up to the Supreme Court, I’m not sure how the “conservative” justices will proceed. Consistent with Justice Thomas’ censorial goals, an activist conservative jurist might actually reject the Gil majority’s reasoning to facilitate allowing suits against websites for discriminatory content moderation. However, the author of the majority opinion in Gil is a Trump appointee. This suggests that “conservative” judges may struggle choosing among the conflicting goals of using civil rights laws to advance censorship or disadvantaging minority interests to favor businesses.

Here’s the piece I don’t understand. Obviously Winn-Dixie didn’t want to get buried by an avalanche of ADA plaintiffs, but according to the majority opinion, Winn-Dixie said it would cost $250k to get its website in compliance with the ADA (or maybe it’s just screen readers–the language isn’t precise). $250k is almost certainly less than Winn-Dixie spent on its defense costs here. So it seems like Winn-Dixie would have saved money by paying some settlement money to Gil and spending $250k to fix the site; plus, compliance would generate additional revenues from visually impaired customers. Why didn’t Winn-Dixie do that?

Case citation: Gil v. Winn-Dixie Stores Inc., 17-13467 (11th Cir. April 7, 2021)

Some related blog posts:

The post 11th Circuit Says Grocery Store Website Isn’t Covered by the ADA–Gil v. Winn-Dixie appeared first on Technology & Marketing Law Blog.

YouTube (Again) Defeats Lawsuit Over Content Removal–Lewis v. Google

Eric Goldman — Sat, 17 Apr 2021 15:36:21 +0000

Lewis ran a YouTube channel, “Misandry Today.” (Misandry = hatred of men). He claims YouTube removed or demonetized some of his videos. The district court rejected his lawsuit. In a short unpublished memo opinion that basically echoes the district court’s analysis, the Ninth Circuit does too.

Constitutional Challenge Against Section 230. Lewis didn’t have standing to challenge Section 230’s constitutionality because any “injury” he suffered did not relate to Section 230. YouTube took its action as a private actor, not a state actor; and Section 230 provides an immunity from suit, not a cause of action.

First Amendment Violations. YouTube is not a state actor (cite to PragerU v. Google).

Title II of Civil Rights Act. “YouTube’s websites are not a ‘place of public accommodation.’…To conclude Google or YouTube were places of public accommodation under Title II ‘would obfuscate the term ‘place’ and render nugatory the examples Congress provides to illuminate the meaning of that term.'”

Lanham Act False Advertising. Lewis lacked standing because he sued as a consumer, not a competitor.

Fraud by Omission. Lewis didn’t allege any duty to disclose that YouTube failed to honor. Plus, “YouTube disclosed that it reviews flagged content to determine whether it violates the Community Guidelines, which in turn prohibit ‘Hateful content.’ YouTube’s monetization policies elaborate that ‘Hateful content’ is ineligible for monetization.”

Covenant of Good Faith and Fair Dealing. YouTube’s contract expressly gave it the right to act, which eliminates any overlapping implied claim.

Tortious Interference. Lewis didn’t allege that YouTube knew of any affected third party.

What a bogus lawsuit. Maybe Lewis will find a more enthusiastic reception on Parler. Plaintiff’s counsel was Andrew Martin of Martin and Peters PLLC.

Case citation: Lewis v. Google LLC, 2021 WL 1423118 (9th Cir. April 15, 2021)

Selected Related Posts About State Action Claims

The post YouTube (Again) Defeats Lawsuit Over Content Removal–Lewis v. Google appeared first on Technology & Marketing Law Blog.

When It Came to @RealDonaldTrump, Twitter Couldn’t Please Everyone–Rutenberg v. Twitter

Eric Goldman — Wed, 14 Apr 2021 15:21:05 +0000

The plaintiff Maria Rutenberg (a lawyer, perhaps not surprisingly) was unhappy Twitter shut down the @realdonaldtrump account, which meant she lost the opportunity to read and engage with Trump’s tweets. So, represented by a lawyer (Mark Javitch), she sued Twitter for violating her civil rights. It only takes a few pages for the court to say that Twitter isn’t a state actor, Section 1983 doesn’t apply to it, case closed:

Rutenburg makes no allegation that Twitter exercised any state right or privilege to restrict her access to former President Trump’s Tweets…At best, the amended complaint merely describes how Twitter using its own technical means reportedly disabled, removed, and otherwise restricted former President Trump’s Tweets and accounts. None of this has any connection with the exercise of authority by a sovereign state.

It is undisputed that Twitter is a private company. Federal courts have uniformly rejected attempts to treat similar social media companies as state actors under Section 1983 [cites to Prager U v. Google, Howard v. AOL, Ebeid v. Facebook, Shulman v. Facebook, Kinderstart v. Google, Langdon v. Google, Cyber Promotions v. AOL, Halleck]….Simply put, Rutenburg cannot transform Twitter into a “state actor” based on an allegation that the company “administered” former President Trump’s account…

Rutenburg conflates decisions finding that former President Trump’s usage of Twitter is a public forum, constraining his ability to summarily block critics, and impermissibly attempts to extend this underlying logic to Twitter. This fails where Twitter is not a state actor, and is not exercising any sovereign state authority

I wonder how Justice Thomas would feel about this decision?

This case provides an eye-opening compare/contrast with the Constituents for Thoughtful Governance v. Twitter case from last summer. The cases are mirror opposites. In the CTG case, plaintiffs unsuccessfully sued Twitter for not removing the @realdonaldtrump account. In the Rutenberg case, the plaintiff unsuccessfully sued Twitter for removing the @realdonaldtrump account. Together, the cases highlight why Twitter and other Internet services feel like content moderation puts them in a no-win position. Twitter will get sued whatever choice it makes. In other words, there are no pareto-optimal outcomes in content moderation. Because of that, any censorial regulatory intervention (mandating that services remove content or must-carry) picks a winner which necessarily imposes a detriment on other constituencies. Fortunately, the First Amendment prevents the government from choosing speech winners and losers.

Case citation: Rutenberg v. Twitter, Inc., 2021 WL 1338958 (N.D. Cal. April 9, 2021). Prior denial of plaintiff’s TRO request. The complaint.

Selected Related Posts About State Action Claims

The post When It Came to @RealDonaldTrump, Twitter Couldn’t Please Everyone–Rutenberg v. Twitter appeared first on Technology & Marketing Law Blog.

Internet Feuds Are Basically Defamation-Free Warzones–Rapaport v. Barstool

Eric Goldman — Tue, 13 Apr 2021 16:45:32 +0000

[WARNING: this post contains coarser-than-usual content.]

This case involves actor Michael Rapaport, who has appeared in many popular TV shows and movies. Apparently he’s edgy in real life, which he demonstrated through a CBS Radio show.

Barstool Productions “has cultivated its brand around providing ‘unfiltered,’ ‘controversial,’ crass, and sometimes humorous views on” sports and pop culture. Barstool poached Rapaport from CBS, and they entered into a “talent agreement.”

8 months into the relationship, it melted down. Rapaport took the bait from a Twitter user and disparaged Barstool’s fanbase for embracing the nickname “stoolies”:

(Remarkably, Rapaport didn’t pick on the “pole” misspelling. It pains me every time I see it).

Barstool fired Rapaport the next day by text (classy).

Rapaport escalated the matter. He still had the login credentials to Barstool’s Twitter account (oops–if you fire someone, IMMEDIATELY terminate their login credentials) and posted a video there calling Portnoy (Barstool’s founder) a “dumb motherfucker,” a “dumb fuck,” and a “bitch.”

In response to that and other provocations, “the Barstool Defendants published dozens of tweets, blog posts, online articles, videos, podcasts, and radio shows that accused Rapaport of being racist, a fraud, a hack, a wannabe, and a liar, having herpes, and stalking and beating his former girlfriend.”

[Unsurprisingly, the judge ran out of patience for these clowns. For example, she writes: “Rapaport’s [evidentiary] objections extend to documents that Rapaport himself produced in discovery. These objections are not well taken and, quite frankly, are borderline sanctionable.” ]

Talent Agreement Breach

The Talent Agreement contained a morals clause. Dafuq? Barstool hired Rapaport to sling garbage, yet the contract provides an immediate out if Rapaport brings himself or Barstool “into public disrepute”? (See a dispute over a similar clause). I wonder how aggressively Rapaport’s counsel negotiated that clause. At minimum, the clause should have established a baseline level of permitted disrepute. After all, Barstool built its brand around “controversial” and “crass” content, and Rapaport’s controversial and crass content is exactly why Barstool poached him. In any case, the court holds the issue of whether Barstool could exercise that termination basis over to trial.

Rapaport also alleged that Barstool didn’t try hard enough to procure advertisers for his “rant videos” (seriously, that’s what the court called them), as required by the contract. Again, dafuq? How many advertisers want to be associated with rant videos? (If you are such an advertiser, please contact me–I’d happily take your money). Barstool responded that advertisers weren’t interested because Rapaport was “very unpredictable” and used the C-word “incessantly.” This issue gets kicked to trial too.

Also…Rapaport used the C-word all the time and Barstool didn’t think that violated the morals clause? Instead, Barstool only became upset when Rapaport insulted the “intelligence” of an audience that was loyal to someone who routinely drops C-bombs?

Defamation

Rapaport claimed that the Barstool team said Rapaport is “racist,” a “fraud,” a “hack,” a “wannabe,” and a “liar.” (They also called Rapaport a “loser,” one of Trump’s favorite insults). The court says “these labels represent nothing more than the Barstool Defendants’ subjective evaluations of Rapaport that are incapable of being objectively proven true or false.”

Accusations that Rapaport had herpes and engaged in criminal conduct are capable of a defamatory meaning. The court responds:

audiences would readily recognize the challenged statements as representing the (often overtly biased) viewpoints of the Barstool Defendants…the statements were largely laden with epithets, vulgarities, hyperbole, and non-literal language and imagery; delivered in the midst of a public and very acrimonious dispute between the Barstool Defendants and Rapaport that would have been obvious to even the most casual observer; and published on social media, blogs, and sports talk radio, which are all platforms where audiences reasonably anticipate hearing opinionated statements.

For example, Barstool did a “diss track” where they said terrible things about Rapaport. The court says:

The tone and apparent purpose of the diss track reinforce for audiences that the video is not intended to reflect an accurate factual assessment of Rapaport. Exaggerated, vitriolic words and imagery pervade the six-minute-plus video to attack all aspects of Rapaport’s life, including his career, popularity, relationships, appearance, age, and legal troubles. For example, alongside the obviously hyperbolic statements that Rapaport identifies as defamatory are similarly sensational assertions that Rapaport is a “fucking 10 gallon drum of curdled milk,” a “walking blob of jizz,” a “snake-oil salesman with nothing to sell,” and a “puddle of pudding,” and that he looks like “Larry Bird’s mom’s sister,” or a “chemo Yertle the Turtle.” The video also suggests that Rapaport has such poor rap skills that the speaker would rather “get a spinal tap” or “go out to Neverland Ranch and sit in Michael’s lap” than listen to him rap.

I’m not sure why the comparison t0 Larry Bird and his family was unflattering. Larry Bird is a basketball hall-of-famer and a good-looking man. Plus, he has more class in his pinky finger than all of the litigants in this case combined. Also, Barstool fired Rapaport for bringing public disrepute onto them, but they are also fine calling someone a “walking blob of jizz”….seriously?

The diss track also included several photoshopped images:

(Some background on the term “cracker”).

The court says:

the context of this “diss track” video reasonably signals to viewers that the challenged statements are the prejudiced, opinionated viewpoints of the Barstool Defendants, not accurate factual assessments of Rapaport.

The court also says the Barstool team disclosed the basis of their “herpes” statement by showing these images:

Several times, the court vacillates between saying that the statements aren’t capable of defamation and saying the statements provided adequate support. To me, these photos suggest the Barstool team made a factual claim that Rapaport had herpes, but they provided their evidence supporting that claim, and that turned their characterization of the situation into non-actionable interpretation of the source data. It also negates actual malice. The court could have been more doctrinally precise here.

The Barstool team also made a “Fired Up” video. The court’s evaluation is similar to the diss track:

Just as no reasonable viewer would interpret the cartoon as asserting for a fact that Rapaport died as a result of having “Ding Dongs for Brains,” those same viewers would not understand the cartoon as factually asserting that Rapaport has herpes or that a lesion on his face speaks and serves as his producer.

The following t-shirt, offered for sale, didn’t claim Rapaport had herpes:

This is very close to the facts I tested in my Fall 2020 Internet Law exam. I really can’t make up exam facts crazier than real life. I kept thinking of the clown emoji while working on this blog post. This image reinforced why. Judy Collins’ song from the mid-1970s kept playing in my mind: “Send in the clowns. Don’t bother, they’re here.”

With respect to subsequent tweets, the court says “courts interpreting New York law have generally found that comments made on Twitter are more likely to be understood by audiences as statements of opinion than statements of fact” (citing, among others, Jacobus v. Trump). For example, the court says “Given that the escalating quarrel was apparent to anyone who came across the tweet, Clancy’s rejoinder that Rapaport is a ‘creepy herpes riddled failure’ is best understood as an intemperate epithet delivered in the heat of a series of charged personal attacks rather than as an objective factual observation that Rapaport is a failure, is creepy, and has herpes.” The court similarly says blog posts are viewed as typically the author’s opinion, citing Wexler v. Dorsey & Whitney.

Defamation Implications. I think the court’s approach reflects the modern jurisprudence of Internet defamation. Courts adjust their evaluation of fact-like statements to reflect the rough-and-tumble nature of online discourse. The more outrageous the claim, the more obvious that it’s hyperbolic. Other examples include LeBlanc v. Skinner (“terrorist”) and Finkel v. Dauber (bestiality accusations). In the heat of Internet beefs, courts apparently will let people say pretty much anything. See also Higgins v. Kentucky Sports Radio.

I’m glad that defamation claims are hard to win online. I see too many thin-skinned plaintiffs using defamation to suppress truthful information. However, I wonder if defamation-free zones online have enhanced the coarseness of our discourse across our society. People say terrible things online and, sadly, find a market for it. I don’t think more law is the solution to that problem, but we can and should vote with our eyeballs to not reward people who produce trash content.

Closing note. Covering a beef like this brings me zero joy. I wanted all of the litigants to lose. Maybe they were actually well-matched for each other. As the maxim goes, you lie with dogs, you’re going to get fleas.

Case citation: Rapaport v. Barstool Sports, Inc., 1:18-cv-08783-NRB (S.D.N.Y. March 29, 2021)

The post Internet Feuds Are Basically Defamation-Free Warzones–Rapaport v. Barstool appeared first on Technology & Marketing Law Blog.

Deconstructing Justice Thomas’ Pro-Censorship Statement in Knight First Amendment v. Trump

Eric Goldman — Mon, 12 Apr 2021 15:27:01 +0000

Last week, the Supreme Court vacated the Second Circuit’s Knight v. Trump ruling. The Second Circuit held that Trump violated the First Amendment when he blocked other Twitter users from engaging with his @realdonaldtrump account. Other courts are holding that government officials can’t block social media users from their official accounts, but they can freely block from personal or campaign accounts. Vacating the Second Circuit opinion probably won’t materially change that caselaw.

That outcome was overshadowed by a concurring statement from Justice Thomas wherein he again embraced censorship. I blogged a similar statement from Justice Thomas from the October 2020 cert denial of Enigma v. Malwarebytes. That time, Justice Thomas criticized Section 230–by addressing topics he wasn’t briefed on and clearly did not understand. This time, his statement is even more unhinged and disconnected from the case at issue. It’s clear Justice Thomas feels free to publish whatever thoughts are on his mind. This is what bloggers do. I think he, and all of us, would benefit if he moved his musings to a personal blog, instead of misusing our tax dollars to issue official government statements.

Justice Thomas’ statement ends (emphasis added):

As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.

So Justice Thomas acknowledges he wasn’t briefed on any of the interesting topics he wanted to discuss. He’s just making stuff up. This isn’t what Supreme Court justices do, or should do. I’m a little surprised that his colleagues haven’t publicly rebuked him for writing free-association statements. Such statements hurt the court’s credibility and abuse the privilege afforded Supreme Court justices.

Justice Thomas starts with an apparent contradiction he positions as a gotcha. The Second Circuit said that Trump created a public forum on Twitter, so Justice Thomas wonders how that could be when Twitter could unilaterally shut down that public forum. He says public forums are “government-controlled spaces,” but any “control Mr. Trump exercised over the account greatly paled in comparison to Twitter’s authority.” Still, Justice Thomas himself acknowledges that if the government rents private real property and uses it to create a public forum, it’s still a public forum even when a private landlord has the unilateral right to terminate the lease and evict the government. So….where’s the gotcha?

Having failed to define that problem, Justice Thomas manufactures a strawman. He says: “If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude.” Notice the conditional grammar to assume a problem without proving it. This is the foundation for a discussion about hypothetical solutions to hypothesized problems.

The two doctrines that “limit the right of a private company to exclude” are common carriage and public accommodations. That leads to this bone-chilling declaration:

Internet platforms of course have their own First Amendment interests, but regulations that might affect speech are valid if they would have been permissible at the time of the founding. See United States v. Stevens, 559 U. S. 460, 468 (2010). The long history in this country and in England of restricting the exclusion right of common carriers and places of public accommodation may save similar regulations today from triggering heightened scrutiny—especially where a restriction would not prohibit the company from speaking or force the company to endorse the speech. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 684 (1994) (O’Connor, J., concurring in part and dissenting in part); PruneYard Shopping Center v. Robins, 447 U. S. 74, 88 (1980). There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.

[Freeze frame and record scratch…] What did he just say?

First, notice how far Justice Thomas has strayed from the case before him. Somehow he’s talking about common carriage and public accommodations when neither doctrine had anything to do with Trump’s management of his Twitter account.

Second, did Justice Thomas just favorably cite Pruneyard? Most “conservatives” view Pruneyard skeptically because of its dramatic incursion into private property ownership. It’s also on the wane as precedent. Courts have been reluctant to extend it to new facts. The Pruneyard decision may be a low-water mark for private property ownership rights, not the foundation of expanded censorship. (There is also the standard Internet exceptionalism problem with applying an offline analogy like physical-space shopping malls to online media venues).

Third, he is about to make a “fair argument” that “some digital platforms are sufficiently akin to common carriers or places of accommodation.” OK, but are there any counterarguments to that “fair” argument? Normally an opposing litigant would be aggressively telling its side of the story, and other Supreme Court justices would be pointing out the weaknesses in Justice Thomas’ “fair” arguments. Without these tempering forces, Justice Thomas is engaging in personal advocacy, not judicial analysis.

Regarding common carriers, Justice Thomas claims:

In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they “carry” information from one user to another…unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public.

It should not matter how an editorial publication sources the content it publishes. I remember Zagat, which tried to faithfully mirror the opinions of ordinary restaurant consumers. Did “distributing the speech of the broader public” make Zagat a common carrier? Of course not, because Zagat layered substantial editorial value on top of the consumer comments. But so does Twitter, which enforces its house rules and performs many crucial curatorial functions. Justice Thomas ignores those value-added editorial functions.

Justice Thomas then links common carriage to network effects:

The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today’s dominant digital platforms derive much of their value from network size….The Facebook suite of apps is valuable largely because 3 billion people use it. Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry….

It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is.

The companies Justice Thomas disparages would hotly contest his assessment. But they weren’t in his courtroom to explain themselves.

More generally, normally common carriage redresses natural monopolies, where it would be socially wasteful to build duplicative infrastructure. Assuming Facebook and Google in fact benefit from network effects, they still lack that key attribute of natural monopolists. In particular, competitors can and will successfully compete by providing non-identical orthogonal solutions.

Justice Thomas continues smearing non-litigants:

Much like with a communications utility, this concentration gives some digital platforms enormous control over speech. When a user does not already know exactly where to find something on the Internet—and users rarely do—Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results. Grind, Schechner, McMillan, & West, How Google Interferes With Its Search Algorithms and Changes Your Results, Wall Street Journal, Nov. 15, 2019. Facebook and Twitter can greatly narrow a person’s information flow through similar means. And, as the distributor of the clear majority of e-books and about half of all physical books, Amazon can impose cataclysmic consequences on authors by, among other things, blocking a listing.

Is Justice Thomas suggesting all of these services–including Amazon’s book retailing–should be treated like common carriers? Where does that stop?

Also, media industry consolidation is ubiquitous in every media niche. For example, there are 3 major record labels, and Disney has eaten a huge chunk of the movie business. Does that make them common carriers? In the 1970s and 1980s, there was a single daily newspaper in each metro area. Should they have been deemed common carriers because of that? Recall Florida tried to do that in Miami Herald v. Tornillo (though it didn’t use the term “common carrier”). The Supreme Court held that the Miami Herald newspaper’s local market dominance did not reduce the newspaper’s constitutional protection.

With respect to public accommodations, Justice Thomas says “a company ordinarily is a place of public accommodation if it provides ‘lodging, food, entertainment, or other services to the public . . . in general.’ Twitter and other digital platforms bear resemblance to that definition.” Every business will bear some “resemblance” to that definition because they offer goods or services to their customers, but not every business is a place of public accommodation. Justice Thomas closes the thought by saying “no party has identified any public accommodation restriction that applies here.” That’s because IT WASN’T RELEVANT TO THE CASE.

Justice Thomas cheerleads the #MAGA legislators around the country working on censorial bills:

The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms. “[I]t stands to reason that if Congress may demand that telephone companies operate as common carriers, it can ask the same of” digital platforms. Turner, 512 U. S., at 684 (opinion of O’Connor, J.). That is especially true because the space constraints on digital platforms are practically nonexistent (unlike on cable companies), so a regulation restricting a digital platform’s right to exclude might not appreciably impede the platform from speaking.

Justice Thomas somehow overlooked Reno v. ACLU (1997), which came out after Turner and Denver Area. The Supreme Court said that, unlike broadcasting and telecom, there was no basis for qualifying the First Amendment scrutiny applied to Internet content regulations. This is 100% responsive to his invocation of O’Connor’s language from Turner.

Justice Thomas then says “plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.” Not this again. It’s a true statement with respect to “government threats,” but general censorial exhortations by government officials aren’t “threats.” In a footnote, he adds:

Threats directed at digital platforms can be especially problematic in the light of 47 U. S. C. §230, which some courts have misconstrued to give digital platforms immunity for bad-faith removal of third-party content. Malwarebytes, Inc. v. Enigma Software Group USA, LLC, 592 U. S. ___, ___–___ (2020) (THOMAS, J., statement respecting denial of certiorari) (slip op., at 7–8). This immunity eliminates the biggest deterrent—a private lawsuit—against caving to an unconstitutional government threat.

Wait, who is the villain in that story? My vote: The government making unconstitutional threats. Section 230 doesn’t prevent lawsuits directly against the government for issuing these threats. Nevertheless, Justice Thomas apparently thinks that Internet services, receiving unconstitutional demands from government officials, should be sued by individual users for honoring those demands. Yet, an Internet service’s content removal in response to a government threat usually would be considered a “good faith” removal and thus satisfy the statutory requirements of Section 230(c)(2), so I don’t understand why Justice Thomas thinks his Enigma statement is relevant. And if Section 230 didn’t protect the Internet service’s removal, is Justice Thomas saying that the Internet services should be compelled to carry potentially illegal content even if the government executes its threat? Here’s a better idea: we should all work together to stop the government from issuing unconstitutional threats. And the first government threat I think we should stop? I nominate Justice Thomas’ threat to impose must-carry obligations.

Justice Thomas, citing Prof. Volokh, speculates that maybe Section 230 is itself unconstitutional:

some commentators have suggested that immunity provisions like §230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from private censorship

As I’ve said before, the phrase “private censorship” is an oxymoron. Only governments censor. Private entities exercise editorial control.

More generally, I do not see how Section 230(c)(1) is unconstitutional. It’s a speech-enhancing statute that supplements the First Amendment. Section 230(c)(2) is more colorable because it does make distinctions between different content categories. However, so long as courts read the “otherwise objectionable” exclusion broadly, that phrase basically applies to all content equally. Note that various Section 230(c)(2) reforms propose to remove or modify the “otherwise objectionable” language, and those changes could create a constitutional problem where none currently exists.

Justice Thomas says the threats he’s talking about have nothing to do with the case at hand:

But no threat is alleged here…no party has sued Twitter. The question facing the courts below involved only whether a government actor violated the First Amendment by blocking another Twitter user.

I agree. So why is Justice Thomas discussing any of this?

Justice Thomas’ statement concludes:

The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him. But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms.

I strongly disagree about the MOST “glaring concern” here. Twitter lacks the power to order drone killings, separate parents from their children at the border, put a knee on the neck of a suspect for 9 minutes, incarcerate people, impose taxes, garnish people’s wages, or engage in the thousands of other ways that governments can deprive people of their assets, liberty, or life. Compared to the government’s vast power to squelch speech, the power of the “dominant digital platforms” seems puny. Justice Thomas betrays his extraordinary degree of privilege. Due to that privilege, he doesn’t recognize how the truly glaring concern is that the government, fueled by his words, will use its “dominance” to “smother” far more speech than any Internet service ever could.

Implications

I hope Justice Thomas’ colleagues do not share his views and this statement is just idle musings. But even if the statement doesn’t lead to changes at the Supreme Court, it will nevertheless contribute to three unfortunate dynamics.

First, plaintiffs will improperly cite the statement as if it is binding law (which they did with his prior statement: 1, 2). They will especially like the discussion about government threats.

Second, plaintiffs will appeal more censorial cases to the Supreme Court, knowing that Justice Thomas is a reliable vote to grant the cert petition and vote in their favor.

Third, state legislators will view this opinion as permission to pursue unconstitutional must-carry obligations. There are so many proposals percolating in the state legislatures right now, and odds are good that at least one will get enacted and the battle will shift to the court challenges of those laws. The future of the Internet rests on those coming court battles, and I feel less secure about the Internet’s fate knowing that Justice Thomas is one of the final 9 votes.

Finally, remember that Trump’s Twitter account was government speech. The thrust of Justice Thomas’ statement would require Twitter to carry government speech it doesn’t want to carry. That isn’t garden-variety censorship. Justice Thomas seemingly wants private media operations to become government mouthpieces. Forcing media outlets to distribute government propaganda is a hallmark of repressive and autocratic countries. I don’t know what it means to be a “conservative,” but I know it shouldn’t include that.

Case citation: Biden v. Knight First Amendment Institute At Columbia University, 2021 WL 1240931 (U.S. Sup. Ct. April 5, 2021)

BONUS: Justice Thomas isn’t trying to hide his antipathy towards Google. See this passage from his dissent in Google v. Oracle, No. 18–956 (U.S. Sup. Ct. April 5, 2021):

If the majority is going to speculate about what Oracle might do, it at least should consider what Google has done. The majority expresses concern that Oracle might abuse its copyright protection (on outdated Android versions) and “‘attempt to monopolize the market.’” Ante, at 34–35. But it is Google that recently was fined a record $5 billion for abusing Android to violate antitrust laws. Case AT.40099, Google Android, July 18, 2018 (Eur. Comm’n-Competition); European Comm’n Press Release, Commission Fines Google €4.34 Billion for Illegal Practices Regarding Android Mobile Devices to Strengthen Dominance of Google’s Search Engine, July 18, 2018. Google controls the most widely used mobile operating system in the world. And if companies may now freely copy libraries of declaring code whenever it is more convenient than writing their own, others will likely hesitate to spend the resources Oracle did to create intuitive, well-organized libraries that attract programmers and could compete with Android. If the majority is worried about monopolization, it ought to consider whether Google is the greater threat.

The post Deconstructing Justice Thomas’ Pro-Censorship Statement in Knight First Amendment v. Trump appeared first on Technology & Marketing Law Blog.

Section 230 Preempts Contract Breach Claims–Morton v. Twitter

Eric Goldman — Wed, 07 Apr 2021 15:04:01 +0000

This case involves the model Genevieve Morton. She created nude images and sold them at her website. An interloper, SpyIRL, tweeted some of the images. Morton asked Twitter to remove the images and suspend the accounts. Twitter removed the images but didn’t immediately remove the associated tweets or suspend the accounts. Morton sued SpyIRL and Twitter for the following claims: copyright, FOSTA, publicity rights, Lanham Act false advertising, privacy invasion, defamation, “contractual fraud,” NIED/IIED, and unjust enrichment. When the complaint was first filed, I noted the oddity of the FOSTA civil claim, which looked ill-fitting. Twitter filed a motion to dismiss all of the claims other than the copyright claim. The court grants Twitter’s motion based on Section 230.

ICS Provider. We get an unusually extended discussion of the ICS provider prong:

Twitter is clearly an interactive computer service provider. As an online microblogging and social media platform, it allows its users to post messages on the platform for the public to see. Every decision the Court has seen to consider the issue has treated Twitter as an interactive computer service provider, even at the motion to dismiss stage….The fact that Twitter ‘generates revenue as an advertising agency and a data broker’ does not change the fact that Twitter ‘provides or enables computer access by multiple users to a computer service.’…Morton suggests that Section 230 no longer applies to Twitter because Twitter now “operates its own Content Delivery Network.” But that fact is irrelevant. The exact mechanism by which Twitter delivers content to its users does not change the fact that Twitter is a social media platform and provides the “prototypical service entitling it to protections of [Section 230].”

So long as Twitter performs the ICS functions, the fact it might perform other functions is irrelevant. That isn’t rocket science.

Publisher/Speaker of Third-Party Content. (The court seems to collapse the two factors into one). “The objectionable content at issue here are tweets posted by SpyIRL. While the tweets are posted on Twitter’s platform, it is clear that it was SpyIRL – not Twitter – that chose to post the offending tweets containing photographs of Morton.” Morton made the bare allegation that Twitter and SpyIRL were the same entity (or close enough), but the court says it’s “common sense” that Twitter isn’t.

The court then cites numerous cases rejecting the specific claims Morton made, including J.B. v. G6 (FOSTA); Ripple v. YouTube (publicity rights/UCL); 924 Bel Air Rd. v. Zillow (false light); Herrick v. Grindr (emotional distress claims); and Parker v. PayPal (unjust enrichment). When the court puts it that way, it’s pretty clear that this case was never really close.

The court says: “The only claim for which the Court has not seen a prior ruling find barred by Section 230 is Morton’s false advertising claim based upon the Lanham Act.” That’s an odd statement because the Ninth Circuit expressly addressed this issue in Enigma v. Malwarebytes. There, the 9th Circuit said that Section 230’s IP “exception does not apply to false advertising claims brought under § 1125(a) of the Lanham Act, unless the claim itself involves intellectual property.” The Enigma case involved 230(c)(2)(B), not 230(c)(1), but no big diff because the exclusion applies equally to both provisions. If for some reason the Enigma case wasn’t close enough, there are other 230(c)(1) cases on point too, including Marshall’s Locksmith v. Google. Despite the court’s perceived lack of precedent, “the Court dismisses [the Lanham Act false advertising] claim as well because Section 230 clearly reaches the allegedly false advertising statements here, i.e., SpyIRL’s tweets.”

Regarding the “contractual fraud” claim, Morton sought to weaponize Twitter’s non-consensual nudity policy (which says Twitter will immediately and permanently suspend accounts for violations), on the theory that Twitter promised to enforce it and didn’t. Yes, it’s 2021, and we’re seeing the exact same arguments that failed in cases like Noah v. AOL from 2004. Unsurprisingly, they fail again.

First, Twitter never promised to suspend offending accounts. Instead, it contractually reserved its discretion. Cite to Caraccioli v. Facebook. That makes Twitter’s policy “merely aspirational statements.”

Second, “a breach of contract claim premised solely on Twitter’s failure to suspend those accounts would be barred by Section 230. This is because the actions that Morton alleges Twitter failed to take – thereby breaching its duty – are suspending a user’s account. ‘But removing content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.’” Cite to Barnes v. Yahoo. The court distinguishes Barnes’ handling of promissory estoppel and 230, saying “liability for promissory estoppel is not necessarily for behavior that is identical to publishing or speaking (e.g., publishing defamatory material in the form of SpyIRL’s tweets or failing to remove those tweets and suspend the account).” I didn’t fully understand the nuanced point the court was trying to make here.

Still, I’m going to bold this language again because it’s central to many cases nowadays: “a breach of contract claim premised solely on Twitter’s failure to suspend those accounts would be barred by Section 230.” Yes, Section 230(c)(1) can support a motion to dismiss contract breach claims. That’s why the contract/230 discussion in Daniels v. Alphabet was weird.

Note that Twitter’s alleged failure to comply with its announced policy is exactly the kind of thing that the PACT Act and many other bills are targeting for greater enforcement activity. This ruling previews the kind of litigation activity that some legislators hope to see more of.

The plaintiffs will get a chance to file an amended complaint (but they haven’t done so, at least not yet), and the copyright claim weren’t challenged and remain unresolved.

Case citation: Morton v. Twitter, Inc., 2021 WL 1181753 (C.D. Cal. Feb. 19, 2021). I’m not sure why the online databases took several weeks to index the case. The complaint. This lawsuit has its own microsite, but it hasn’t been maintained.

The post Section 230 Preempts Contract Breach Claims–Morton v. Twitter appeared first on Technology & Marketing Law Blog.

Another Must-Carry Lawsuit Against YouTube Fails–Daniels v Alphabet

Eric Goldman — Tue, 06 Apr 2021 16:20:01 +0000

[I’ll discuss Justice Thomas’ latest bonkers statement later this week]

Daniels, a/k/a “Young Pharoah,” posted videos to YouTube, apparently of the #MAGA genre. YouTube removed some videos, allegedly “shadowbanned” him (again, I raise questions whether that’s the appropriate term here), and allegedly kept money it should have paid to him. (This looks like a situation where YouTube applied overlapping content moderation remedies). He sued YouTube for a variety of claims, all of which fail.

Personnel note: the plaintiff’s lawyers are Maria Cristina Armenta and Credence Elizabeth Sol, and this isn’t their first appearance on the blog. They will always hold special status in Internet Law for their ultimately-unsuccessful censorial efforts to force YouTube to remove the Innocence of Muslims video. Now, they are working–again unsuccessfully–to impose censorial must-carry obligations on Internet services.

The opinion covers the standard ground. A couple things to note:

State Action. Daniels claimed that censorial exhortations from Reps. Pelosi and Schiff turned YouTube into a state actor. I discussed this issue in this post about AAPS v. Schiff. TL;DR: it’s terrible when members of Congress ask Internet services to censor, but their garden-variety jawboning doesn’t convert the Internet services into state actors.

Section 230. The court says the defense admitted that Section 230(c)(1) wouldn’t preempt a breach of contract claim. We know this isn’t true. I’ve blogged many cases where Section 230(c)(1) did apply to contract breach claims (and I’ll blog another one soon), including Murphy v. Twitter, a California appellate court that made it 100% clear that Murphy’s contract claims didn’t get around Section 230(c)(1). I believe the court was trying to say that Google wasn’t pressing the Section 230 claim against the plaintiff’s efforts to collect withheld payouts; but the court’s wording was broader, and it makes no sense why the court discussed the contract limits only with respect to Section 230(c)(1) but then turned around and immediately discussed Section 230(c)(2)(A).

Indeed, the court says that Section 230(c)(2)(A) preempts all of the state law claims other than YouTube’s failure to pay. Daniels made the standard argument that YouTube’s removals were in bad faith, but the court says that bare assertion wasn’t enough. Unlike Enigma v. Malwarebytes, “Mr. Daniels does not allege that he is in direct competition with defendants, or that defendants’ removal of his videos stemmed from an anticompetitive animus.” And unlike Song Fi v. Google, “Mr. Daniels does not allege that YouTube removed or restricted access to his videos for a reason unrelated to their content.”

It’s great, but a bit surprising, to see the court’s muscular application of Section 230(c)(2)(A), which parallels the (uncited) Second Circuit Domen v. Vimeo ruling. So long as courts push back on plaintiffs’ weak pleading–like this court did–Section 230(c)(2)(A) could have a valuable role to play in the account termination/content removal space. Instead, I fear other judges will not consistently pushback on weak allegations of bad faith, which is the primary reason why Internet services have avoided relying on Section 230(c)(2)(A) defenses. Still, I’m adding Domen v. Vimeo to the next edition of my Internet Law casebook because I think it’s time to teach 230(c)(2)(A) more seriously.

The plaintiff can replead the contract breach claim for failure-to-pay, but the case has lost all of its ideological implications about must-carry obligations and instead has devolved into a routine collections case (that will likely fail anyways).

Case citation: Daniels v. Alphabet Inc., 2021 WL 1222166 (N.D. Cal. March 31, 2021). The complaint.

The post Another Must-Carry Lawsuit Against YouTube Fails–Daniels v Alphabet appeared first on Technology & Marketing Law Blog.

Snapchat Photos Don’t Constitute “Virtual” Physical Presence–People v. White

Eric Goldman — Sun, 28 Mar 2021 16:01:08 +0000

The defendant was a high school teacher and coach. She sent photos to one of her students, WB, via Snapchat. The court says WB and the defendant never discussed the photos. The court describes the photos as “somewhat risqué” because they featured her partially uncovered breasts. Using a separate phone, WB took photos of the Snapchat photos (this avoided Snapchat’s notifications for screenshotting).

The state prosecuted the defendant for sexual exploitation of a child (Illinois Criminal Code Sec. 11-9.1(a)) on the theory that the defendant exposed herself in a child’s “virtual presence” (a statutorily defined term). The court says virtual presence occurs when:

software, such as webcam video software, creates an ‘environment’ in which the child is virtually in the defendant’s presence….the legislature has in mind a computer artifice that apes physical presence: a webcam video or something like it. To meet the description of “ ‘[v]irtual presence,’ ” the software has to “create[ ]” a you-could-be-there “environment.”

The court says photos on Snapchat don’t satisfy this requirement:

They were merely the digital equivalents of Polaroids, only more ephemeral….Snapchat did not create the illusory environment of presence that the legislature had in mind by its use of the term “virtual presence.” Unlike Zoom, for instance, which is the video communication app that we used for oral arguments in this case, the Snapchat app that defendant and W.B. used was not a stand-in for physical presence.

As a result, the court overturned the defendant’s conviction. The court doesn’t discuss whether other crimes might have applied or why the prosecutors chose to fit the facts into this crime.

This ruling addresses a classic Internet Law topic: the distinctions between “virtual” and “physical” activity and when those matter to the legal outcomes. The court doesn’t unpack the assumptions underlying the legislature’s extension of the crime to “virtual” presence, but apparently synchronous interactions are required. Even then, I wonder if virtual synchronous interactions are equivalent. For example, virtual interactions lack the implied threat of immediate violence or compulsion that exist in physical space.

This ruling possibly conflicts with State v. Decker, which held that texting a dick pic constituted criminal sexual conduct, i.e., “masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present.” The court found sufficient “presence” because the defendant sent the photo in the context of an active chat thread. Perhaps this case can be distinguished because there didn’t seem to be an active chat thread; or because the statutory definition of “virtual presence” differed from the “presence” definition in Decker. It’s also possible these cases reached different results based on varying norms about the importance of physicality in these crimes. As the White court implies, if sending Snapchat photos is covered by this crime, then it’s likely the crime would extend to showing “somewhat risque” “polaroids” to a third party in physical space.

Case citation: People v. White, 2021 IL App (4th) 200354 (Ill. App. Ct. March 25, 2021)

Some Related Posts

The post Snapchat Photos Don’t Constitute “Virtual” Physical Presence–People v. White appeared first on Technology & Marketing Law Blog.

Facebook Defeats Lawsuit Over Alleged ‘Shadowbanning’–De Souza Millan v. Facebook

Eric Goldman — Sat, 27 Mar 2021 15:52:23 +0000

The term “shadowbanning” does not have a single well-accepted definition. In my Content Moderation Remedies paper, I say: “A shadowban keeps a user’s account active, but only the accountholder can see the content.” However, others sometimes use the term as a generic descriptor of undisclosed visibility reduction steps, such as removing an accountholder’s items from internal search indexes.

I can’t say for sure that “shadowbanning” accurately describes what happened to the plaintiff, but close enough. He had multiple Facebook accounts. He posted from one account, but the item didn’t appear when he looked for the item through a different account. He claimed that “Facebook was trying to deceive him into thinking he had posted a publicly visible comment, when in fact the comment was not visible.” Unsurprisingly, his pro se lawsuit goes nowhere.

Section 230(b). Section 230(b) contains a series of policy statements from Congress contextualizing Section 230. The court says: “The plain language of the statute shows that these are merely expressions of Congressional policy. These policies are not substantive provisions that provide a basis for liability, nor do they create a private right of action.” It’s interesting to see litigants trying to create substantive rights out of Section 230(b)’s policy statements–I just blogged about another attempted misuse of 230(b).

Section 230(c)(2)(A). Another misguided attempt to weaponize language that doesn’t support a cause of action: “this provision provides an immunity, so even if Facebook acted discriminatorily, at most that would deprive it of the immunity that the statute provides.”

Section 2000a(a) of the Civil Rights Act (42 USC 1981). “Millan alleges in his amended complaint that Facebook discriminated against him by blocking his post because it wanted to stop him from selling his services. Putting aside the question of whether Facebook constitutes a ‘public accommodation,’ the statute does not prohibit businesses from discriminating on this basis.” Another example of a plaintiff weaponizing civil rights laws to advance goals completely unrelated to the goal of protecting minorities.

47 USC 202. This law applies to “common carriers,” so of course it doesn’t apply to Facebook. The court says the plaintiff “does not allege that Facebook transmits these signals from their point of origin to their point of reception. Indeed, such allegations would be contrary to the general operation of the Internet, in which some companies create digital content and others own and operate the wires and other infrastructure that transmits the digital content to users.” Hello, layers of the telecom stack! Furthermore, the court says Facebook qualified as an “information service” in the “info/telecom services” divide.

ECPA. The plaintiff “voluntarily provided the comment to Facebook in the expectation that Facebook would display it publicly. Millan does not explain how the statute can be construed to prohibit this.”

18 USC 1343. This is an anti-fraud criminal statute without a private right of action.

It’s easy to laugh at the plaintiff’s futility here, but I’m not laughing at all. This is the kind of lawsuit we can expect to see regularly when Congress creates more bases for plaintiffs to sue over content moderation decisions. The impending tsunami of lawsuits pose an existential threat to the Internet as we know it, both due to their defense costs and the countermoves Internet services will make to reduce those defense costs. Congress should be fighting against that outcome. Instead, Congress will lean into it.

Case citation: Rodrigo de Souza Millan v. Facebook, Inc., 2021 WL 1149937 (Cal. App. Ct. March 25, 2021)

The post Facebook Defeats Lawsuit Over Alleged ‘Shadowbanning’–De Souza Millan v. Facebook appeared first on Technology & Marketing Law Blog.

New Article: “Content Moderation Remedies”

Eric Goldman — Tue, 23 Mar 2021 16:57:49 +0000

I’m excited to share my latest paper, called “Content Moderation Remedies.” I’ve been working on this project 2+ years, and this is the first time I’m sharing the draft publicly. I think many of you will find it interesting, so I hope you will check it out.

The paper addresses the range of content moderation options between “leave up” and “remove.” Many such moderation/”remedial” options between those two endpoints have actually be deployed in the field. This chart, one of the project’s key deliverables, shows how I taxonomized dozens of options:

(I loved digging into the mind-blowing remedial experiments by 1990s services, such as the now-mostly-forgotten “toading” remedy).

The paper then addresses the natural follow-up question: which of these multitudinous options are the “best”? The usual law professor answer: “it depends.” The paper walks through a normative framework showing why there isn’t a single “best” remedy and why it’s likely that each community will prefer different remedies that reflect their own audiences’ needs and editorial priorities.

I expect this paper will interest many industry participants. Many Internet services have explored and adopted various non-removal remedies, but I’m not sure how many services have approached this issue systematically. Services can benefit from carefully reviewing the paper and thinking about what options might be available to them, how those options might work better than their current approaches, and how their competitors may be innovating around them. I’m hoping this paper will spur a lot of conversations among trust & safety/content moderation professionals.

I also hope regulators will find this paper interesting, but I’m less optimistic they will. (The paper’s conclusion acknowledges the bleak realities). Ideally, this paper would help regulators realize why they should not hard-code removal as the sole remedy for online problems; and perhaps the paper could spur fresh thinking about how lesser remedies might better balance competing interests. Sadly, the current regulatory discourse is exclusively focused on burning down all user-generated content. If regulators continue on that path, this paper will be mooted entirely because there won’t be any user-generated content to moderate/remediate.

This paper tees up several attractive areas for followup research, which I’m sharing with you as possible paper topic ideas because I don’t plan to tackle them. Two I’ll highlight:

1) The paper only glibly addresses about how remedies could be combined to reach better outcomes than any single remedy could achieve. I think this would be a great area for future investigation, especially empirical studies and A/B tests.

2) This paper addresses a slice of a broader topic about how private entities should establish remedial schemes for rule violations by their constituents. Examples of other entities facing similar issues: religious organizations; sports leagues; and membership organizations like fraternities/sororities. Perhaps I missed it, but I never found any precedent literature providing a normative framework for how organizations like these should think about remedial structures. It’s a big hairy topic, way beyond my expertise, but someone might be able to write a career-defining work filling that gap.

This paper is still in draft form, so I’d gratefully welcome your comments. I’d also welcome the opportunity to present on this topic to any interested audience.

A note about placement: I’ve published in the Michigan Technology Law Review before, and I’m happy to do it again. However, I thought this paper would interest general journals, which didn’t happen this time. This placement cycle was unusual due to articles piled up from the 2020 shutdown plus the journals’ remote operations. I got ghosted by a majority of the law reviews I submitted to, even after multiple expedites. I decided that my priority was to close this project out because it’s already been incubating 2+ years and I have other projects in queue. Thus, rather than worrying about possible different homes in a future placement cycle, I am moving on.

The paper abstract:

This Article addresses a critical but underexplored topic of “platform” law: if a user’s online content or actions violate the rules, what should happen next? The longstanding expectation is that Internet services should remove violative content or accounts from their services, and many laws mandate that result. However, Internet services have a wide range of other options—what I call “remedies”—they can use to redress content or accounts that violate the applicable rules. The Article describes dozens of remedies that Internet services have actually imposed. The Article then provides a normative framework to help Internet services and regulators navigate these remedial options to address the many difficult tradeoffs involved in content moderation. By moving past the binary remove-or-not remedy framework that dominates the current discourse about content moderation, this Article helps to improve the efficacy of content moderation, promote free expression, promote competition among Internet services, and improve Internet services’ community-building functions.

The post New Article: “Content Moderation Remedies” appeared first on Technology & Marketing Law Blog.