Facebook says it’s a publisher in court filing
Facebook says it’s a publisher, invokes First Amendment rights to call Laura Loomer a “dangerous individual”
Didi Rankovic September 17, 2019
When Facebook, the
planet's by-far biggest and most influential social media platform, a veritable
behemoth with some 2.5 billion users, brands you as “a dangerous individual
trafficking in hate” – and bans you on those grounds – that's about as massive a
blow to both your reputation and your livelihood as can be imagined.
It's almost like an
informal verdict of an equally informal, but hugely powerful yet unaccountable
court – and the situation would leave you with precious few options. Either
accept the label and “revel” in the global infamy that the tech giant has just
crashed upon you like a ton of bricks – or defend yourself, and sue. Turn to
real courts, such as they are, and seek protection there.
The latter option is
exactly what conservative US commentator and congressional candidate Laura
Loomer decided to do when she earlier in the year filed
a lawsuit against Facebook, alleging defamation of character
committed against her by the tech giant.
And now, Facebook has filed
a motion to dismiss the case.
The argument used by those
banned by Facebook and other giants has often been that their free speech
rights guaranteed by the US Constitution's First Amendment had been violated as
they were silenced on these massive platforms; but the argument of the giants
engaged in this type of “moderation” – or if you prefer, “censorship” – is
that, as humble private companies, they don't represent
the public square, and are therefore not under any obligation to respect the
First Amendment.
But in an impressive
display of moral gymnastics, Facebook is now trying to claim First Amendment
protections for itself. Mark Zuckerberg's company is arguing in its motion to
dismiss Loomer's lawsuit that it has the right to call somebody a dangerous
person and a hate peddler – whether or not that's true – because the First
Amendment gives Facebook that right.
Are some First Amendment rights
more equal than others?
The controversy stems from
Facebook's decision to ban
Loomer and a host of other conservative voices from its
platform earlier in 2019. The company explained this by saying these public
figures had violated its “Dangerous Individuals and Organizations” policy and
did so by “amplifying or trafficking in hate.”
In the court filing,
Facebook now further expands on its original decision to ban Loomer by going
for vague language brimming with qualifiers – and then doubles down on the
serious accusation that she actually is a “dangerous person.” Not necessarily
because it's true, as it turns out – but because Facebook thinks it has the
right to protected speech under the First Amendment:
“She claims Facebook
labeled her as a ‘dangerous' person who promotes hate – yet, the First
Amendment has long protected such statements because they are opinions that are
not capable of being proven true or false,” Facebook states in its motion to
dismiss.
Hot on the heels of this,
in the same document, Facebook next denies Loomer's own right to express her
opinions that might or might not be “capable of being proven true or false.”
Next, Facebook cited more
legal precedents like the e-ventures Worldwide vs. Google case, when Google was
given the right to remove “the plaintiff's websites from search engine results
because the plaintiff had allegedly violated Google's policies” – and that's
because the court held that the First Amendment “protects these decisions,
whether they are fair or unfair, or motivated by profit or altruism.”
To be a platform, or not to be
a platform
Facebook's mind-boggling
claim that its First Amendment rights allow it to ban users for exercising
their own First Amendment rights – and that's not even the only puzzling
and contradictory point from the filing.
Another is the way
Facebook refers to itself as “a publisher” at one point – only to later in the
same document invoke Section 230.
“(…) to the extent Ms.
Loomer's claim targets Facebook's decision to deactivate her accounts, it is
also deficient. Under well-established law, neither Facebook nor any other
publisher can be liable for failing to publish someone else's message. The First
Amendment provides absolute protection for such decisions,” Facebook's motion
said on page 3.
But then on page 18, the
motion refers to Section 230, a provision in the US Communications Decency Act
(CDA).
It's a fundamental
provision that allows Facebook and its ilk safe harbor protections – however,
explicitly as providers of internet services rather than as publishers, who
would otherwise be legally liable for content posted by third parties, i.e.,
their users. And it's a provision that's been the very foundation of the
phenomenal rise and success of social media giants – so it's unclear why
Facebook's motion to dismiss Loomer's lawsuit would play this fast and loose
with that particular concept.
Particularly at this point
in time, amid a brewing controversy over the legal status of social media
platforms. Facebook's latest slip of the tongue doesn't
seem likely to end up helping its case in this overarching debate. If anything,
it will help those who say Facebook has grown too big and powerful and too demonstrably
politically biased, to be allowed to continue to reap the benefits afforded to
them by Section 230.
Read Facebook's motion for
dismissal here.
Comments
Post a Comment