Court: Congressional Reps Making Noise About Social Media Moderation Doesn't Make Platforms Extensions Of The Government

from the better-to-be-silent-and-thought-foolish-than-sue-to-remove-all-doubt dept

Wed, Oct 27th 2021 10:48am — Tim Cushing

Another set of plaintiffs insisting social media platforms have it in for "conservative" users have lost in court. The hook for this lawsuit is the (specious) claim that government officials' statements saying social media services should do more to curb the spread of misinformation (COVID, elections, etc.) somehow transformed these private companies into state actors. So, when they did decide to moderate the conspiracy theorists' accounts, it was ACTUAL CENSORSHIP.

Here's Eric Goldman's summary of the case, the plaintiff, and the lawsuit's outcome.

The plaintiffs are “conservative content creators” (i.e., QAnon enthusiasts) who posted videos to YouTube. YouTube suspended their accounts. The plaintiffs sued for First Amendment violations (presumably a 1983 claim). The court previously denied a TRO. YouTube now gets the case dismissed with prejudice. It’s not a close call.

In capable hands, I supposed this would have been handled more like an actual civil rights lawsuit, rather than the collection of novel First Amendment legal arguments it actually is. But, as Goldman points out, the litigants were represented by Cris Armenta, who is best known for representing a couple of actors who appeared in an incredibly bigoted video entitled "The Innocence of Muslims." In an attempt to make their embarrassing involvement in this embarrassing production disappear, the plaintiffs engaged in some ridiculous copyright infringement claims against YouTube. It did not go well for them or their legal rep, even if it took longer for the Ninth Circuit to deliver a solid rejection than it should have.

Things don't go well here either [PDF], which says something about Armenta's legal skills. Or choice of plaintiffs. Or both. The argument is that government people said stuff about moderating certain content. And, because certain content was moderated, YouTube was acting as an extension of the federal government. Hence the ridiculous First Amendment arguments, which the court handily rejects, citing yet another lawsuit represented by Cris Armenta, Daniels v. Alphabet.

The Court finds that the statements by federal lawmakers Plaintiffs point to are insufficient to plead that the government “commanded a particular result in, or otherwise participated in, [Plaintiffs’] specific case.” Heineke, 965 F.3d at 1014; see also Daniels v. Alphabet, No. 20-cv04687-VKD, 2021 WL 1222166, at *6 (N.D. Cal. Mar. 31, 2021). Plaintiffs point to generalized statements from lawmakers pertaining to “coronavirus-related misinformation,” “disinformation proliferating online,” “QAnon-related speech,” and “conspiracy theories.” None of the statements mention Plaintiffs’ names, their YouTube or Google accounts, their channels, or their videos. Plaintiffs argue that state actors “commanded a particular result” in their case because “Plaintiffs have alleged that Congress demanded that the unpopular speech dubbed ‘misinformation,’ and QAnon-related speech be limited and erased, which is precisely what Plaintiffs allege Defendants did.” The Court disagrees that broad lawmaker proclamations regarding “misinformation” or “QAnon-related speech,” for example, are sufficient to show that the government “commanded” the suspension of Plaintiffs’ accounts. Even if Defendants had complied with these lawmaker statements to the letter, they would still have had the ultimate discretion on what videos or accounts fit into buckets like “misinformation” or “QAnon-related speech.”

The lack of specificity in the government statements cannot be the basis for specific actions targeting the users' accounts. And, as the court goes on to point out, the content being sued about isn't clearly linked to any government official's categorical urgings.

The Court also disagrees with Plaintiffs that they have alleged sufficient facts about the content of their videos to link their removal to the broad categories of online content mentioned in the lawmakers’ statements. For example, Plaintiffs plead no facts to indicate that their videos pertained to COVID-19, so none of the statements from members of Congress relating to COVID-19 misinformation have any relevance to Defendants’ alleged conduct. Further, Plaintiffs plead only vague facts about other subjects that leave open the question as to whether all Plaintiffs posted about these subjects, or only some of them. And none of the lawmaker statements Plaintiffs cite contain clear action items relevant to Plaintiffs’ allegations. (encouraging YouTube to “display messages to any users who have engaged with harmful coronavirus-related misinformation”); (generally discussing “misconduct” related to “the division and the disinformation proliferating online”); (encouraging action on the part of the FBI, intelligence community, and “all Americans”).

Neither does a perhaps poorly worded exchange between YouTube and a member of Congress create a legitimate cause of action.

Plaintiffs assert that there is state action under a joint action theory, pointing to a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki in which Ms. Wojnicki states, “We appreciate your partnership and will continue to consult with Members of Congress as we address the evolving issues around #COVID19.” Plaintiffs argue that this Twitter exchange shows Defendants and the federal government were in an “admitted partnership.”

First off, says the court, the thing about COVID and your lack of content related to COVID doesn't support your argument. Second, your hot take on a friendly social media exchange isn't actionable.

As a threshold matter, the Schiff-Wojnicki Twitter exchange Plaintiffs point to in support of their joint action claim clearly pertains to misinformation regarding COVID-19. As the Court discussed above, Plaintiffs have failed to allege any facts indicating that their posts pertained to COVID-19. Accordingly, it is unclear how this Twitter exchange supports a joint action theory pertaining to the suspension of Plaintiffs’ channels. Since the Twitter exchange appears to be the fact Plaintiffs primarily rely on to allege joint action, Plaintiffs’ failure to plead the relevance of this fact renders their joint action claim essentially unsupported. Further, it is simply implausible to read a casual Twitter exchange between one member of Congress and YouTube’s CEO as joint action. Plaintiffs’ theory would effectively cause companies to cease communicating with their elected representatives for fear of liability, as Defendants compellingly argue.

In other words, a little social media related grandstanding by politicians is not even remotely close to the government directly interceding in social media moderation or delivering mandates that strip platforms of their own discretion and replace that with the government's.

Of course, this will be appealed. And, on appeal, it will be rejected for exactly these reasons. And another attempt to bypass Section 230 immunity fails for reasons unrelated to this statute "conservatives" continue to believe violates their First Amendment rights.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 1st amendment, congress, conspiracy theories, content moderation, section 230, state action
Companies: youtube

33 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Samuel Abram (profile), 27 Oct 2021 @ 9:36am

Attention Shenran, er, Stephen T. Stone:
I have gathered all seven of the Dragon Balls, and I hereby wish that you would post the Brian Kavanaugh copypasta to preëmpt the likely Koby bullshit.
[ link to this | view in thread ]
Stephen T. Stone (profile), 27 Oct 2021 @ 10:54am

YOUR WISH IS GRANTED.
Social media services are not public fora. A Supreme Court ruling from 2019, for which Justice Brett Kavanaugh wrote the majority opinion, doesn’t directly address social media but still provides the logic necessary to counter any “yes they are public fora” argument:

Under the Court’s cases, a private entity may qualify as a state actor when it exercises “powers traditionally exclusively reserved to the State.” … It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function.

The Court has stressed that “very few” functions fall into that category. … Under the Court’s cases, those functions include, for example, running elections and operating a company town. … The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity. …

When the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content[.]

By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine[.]

The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment[”.]

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” … Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” … That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” … The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property. …

A private entity … who opens its property for speech by others is not transformed by that fact alone into a state actor.

[ link to this | view in thread ]
Anonymous Coward, 27 Oct 2021 @ 11:25am

Re: Attention Shenran, er, Stephen T. Stone:
Not even the great Shenron can stop someone of Koby's powerlevel!
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 27 Oct 2021 @ 11:30am

Democrat politicians: We want you to take down anything we disagree with!

Tech oligarchs: OK! No problem!

Court: There was no joint action here!
[ link to this | view in thread ]
Stephen T. Stone (profile), 27 Oct 2021 @ 11:34am

And if that actually happened, you might have a point. But it didn’t. So you don’t.

And more to the point: What speech do you believe is being censored from social media? Be specific.
[ link to this | view in thread ]
Toom1275 (profile), 27 Oct 2021 @ 11:39am

Re:

Democrat politicians: We want you to take down anything we disagree with!

Tech oligarchs: OK! No problem!

[Hallucinates events not in reality]
[ link to this | view in thread ]
Anonymous Coward, 27 Oct 2021 @ 11:48am

You would think the right would be backing social media companies since they are following one on the main Conservative principles... make obscene amounts of money by any means available. Only when it starts to affect the bottom line do you cut it loose.
[ link to this | view in thread ]
That Anonymous Coward (profile), 27 Oct 2021 @ 11:56am

I found the problem..

"that government officials' statements saying"
As a large portion of these statements lack truth, foundation, connection with reality only the most brain damaged would believe this would make it true... Oh they were Q believers... carry on.
[ link to this | view in thread ]
Bloof (profile), 27 Oct 2021 @ 1:01pm

Re:
I like the notion that the libertarians and flat out republicans in power at tech companies are just chomping at bit to do the bidding of Democrats. I'm sure Mark 'Secret off the record meetings at the Trump whitehouse' Zuckerberg and Peter 'Massive Trump Donor' Thiel are huge proponents of being an instrument of democrat policy.
[ link to this | view in thread ]
That One Guy (profile), 27 Oct 2021 @ 1:25pm

'Uncle Saaaaam, the popular platforms were mean to me!'
Funny how the 'Small government' people always seem to want the government to step in when they get their feelings hurt and/or it's advantageous for them...
[ link to this | view in thread ]
That Anonymous Coward (profile), 27 Oct 2021 @ 1:31pm

Re: 'Uncle Saaaaam, the popular platforms were mean to me!'
Mental picture of the TeaParty storming DC to make their wishes known with signs on the back of their Medicare/aid paid for hover rounds saying 'No Socialism!'
[ link to this | view in thread ]
That One Guy (profile), 27 Oct 2021 @ 1:32pm

Or run away, that'll answer too
Democrat politicians: We want you to take down anything we disagree with!

Which content would that be, and be specific.
[ link to this | view in thread ]
bt, 27 Oct 2021 @ 1:58pm

Not Meant to Win in the first place
There's a category of lawsuit that is not filed in order to succeed.

They are filed to further a narrative. This is one of those lawsuits.

Many of Trump's lawsuits are also like this.
[ link to this | view in thread ]
Anonymous Coward, 27 Oct 2021 @ 4:56pm

Re:
It's the cake and eat it × the victimized powerful crossover they love to LARP.
[ link to this | view in thread ]
Anonymous Coward, 27 Oct 2021 @ 4:59pm

What happened to all the gov officials or elected muppets who have been screaming the exact opposite thing at social media the whole time? How does this work?
[ link to this | view in thread ]
basstabs (profile), 27 Oct 2021 @ 5:38pm

I always find it amusing when the conservatives cry about Google/Youtube, Twitter, and Facebook censoring them because they're absolutely infesting all three platforms. Twitter is ground zero for every culture war they're trying to make a thing, and the only people who use Facebook anymore are old people screaming at the younguns to get off their lawn. I don't even watch political videos on Youtube, and my recommendations are chalk full of varying degrees of right-wing content, Fox News and all its mongrel siblings pasted everywhere.

To be fair, this is definitely, without fail, no doubt about it, the first time the Republicants have lied about a problem that doesn't exist and then tried to create "solutions" to the "problem" that just end up infringing on everyone's rights.
[ link to this | view in thread ]
tin-foil-hat, 27 Oct 2021 @ 10:03pm

Congressional Shit Show
There's nothing stopping congress from creating a new agency to administrater a Twitter like site that is 100% uncensored.
[ link to this | view in thread ]
PaulT (profile), 27 Oct 2021 @ 11:20pm

Re:
"Democrat politicians: We want you to take down anything we disagree with!"

Weird, that's not mentioned in the article, and you would have an extremely concerning point if you have evidence that this happened. Please provide it so we can examine it further.

Hint: the fact that lunatics and hatemongers seem to be congregating on the right and that some Republicans are people who actually seem to believe the wilder fantasies, does not mean that when they're shut down it has anything to do with their politics - and certainly doesn't mean that the only people asking for it to be removed from their daily lives are their political opponents. Sometimes a shithead is just a shithead, and asking to ranting lunatic to leave the bar does not mean that it has anything to do with something other than their personal conduct.
[ link to this | view in thread ]
PaulT (profile), 27 Oct 2021 @ 11:22pm

Re: Congressional Shit Show
Well, apart from common sense. If there's anything likely worse than the sewers that the right have created for themselves already, it's probably one that's government controlled and thus unable to legally remove the worst offenders - and let's face it, anything 100% uncensored would quickly devolve into another sewer.
[ link to this | view in thread ]
That One Guy (profile), 27 Oct 2021 @ 11:29pm

An own-goal of epic proportions
Other than the fact that inside of a day such a platform would make it abundantly clear why that's a terrible idea and why it's so important that sites be allowed to engage in moderation on their own platforms.
[ link to this | view in thread ]
Scary Devil Monastery (profile), 28 Oct 2021 @ 2:10am

Re:
"Democrat politicians: We want you to take down anything we disagree with!"

And since by "anything" you guys usually mean nazism, racism, long rants about the liberal cannibal cult and other Qanon gibberish, or an attempt to get more people killed by trying to explain away medical science...

...I hate to be the bearer of bad news but the whole world is with the democrats on that one.

The fact that a small, utterly vile minority feels butthurt and infringed upon when they aren't allowed to spout KKK slogans in other people's living rooms isn't really relevant. Nor is it in any way weird or strange when sane people ask to have such asshats banned from the forums they frequent, nor that some such sane people happen to be democrats.
[ link to this | view in thread ]
Scary Devil Monastery (profile), 28 Oct 2021 @ 2:52am

Re: Re: 'Uncle Saaaaam, the popular platforms were mean to me!'
It was ironic and amusing the first few years that the biggest beneficiaries of american socialist systems - social aid, food stamps, subsidized healthcare etc. - kept screaming about the evils of socialism...
...but by now it's just embarrassing to have to own up to being the same species as these lackwits.

Honestly, as long as those benighted morons keep sticking around the US remains a lost cause.

Unfortunately to the dems it's still business as usual which means come 2022 and 2024 there's still good odds the winning candidate will be Trump or some similar strongman able to keep a straight face while bullshitting everyone.
[ link to this | view in thread ]
Scary Devil Monastery (profile), 28 Oct 2021 @ 2:55am

Re: Re: Congressional Shit Show
"...and let's face it, anything 100% uncensored would quickly devolve into another sewer."

And yet it might be, at this point, worth the attempt just to provide a case study for the deliberately slow of wit that no, moderation is very much essential for any social platform.

It's like keeping a bar. If you have no rules at all then 99% of patrons may be maintaining some standard of personal decency but there'll always be that 1% who'll regularly shit on the floor - which means the 99% will avoid that bar henceforth.
[ link to this | view in thread ]
That One Guy (profile), 28 Oct 2021 @ 5:18am

Re: Re: Re: Congressional Shit Show
As much as I'd love to think that having a platform that showed why 'anything legal goes' is very much not a viable moderation option and would serve as an example that would shut up those screaming about 'tech tyranny and censorship!' the biggest problem with that idea is that it would require honesty, and as the #1 example of ''conservative' social media persecution complex' on TD regularly shows that lot can't even be honest about what content they are so desperate to see 'protected'.
[ link to this | view in thread ]
That Anonymous Coward (profile), 28 Oct 2021 @ 7:52am

Re: Re: Re: 'Uncle Saaaaam, the popular platforms were mean to m
You said to the guy who claims to be an immortal being not human.

I often love the newspaper stories about welfare queens defrauding the government, & conservatives getting a bit confused when all 24 defendants were white. That can't be right, it must be a mistake.

We demonize those who actually need the help, based on skin color, assume they are just stealing from us... then we treat them as less than. Meanwhile those actually ripping the system off don't even register a blip in their narratives.
[ link to this | view in thread ]
Stephen T. Stone (profile), 28 Oct 2021 @ 1:42pm

To wit: the “Worst People” Problem.
[ link to this | view in thread ]
Bergman (profile), 29 Oct 2021 @ 12:37am

Re: Re:
And isn’t it odd how the people who INSIST they have a right to spout bullshit that would make even the KIK turn white as… ahem… in the living rooms of others, equally INSIST that opinions they disagree with cannot be spouted in their own living rooms?
[ link to this | view in thread ]
Bergman (profile), 29 Oct 2021 @ 12:38am

Re: Re: Re:
WTB edit button, and to know how the heck tapping the K button 3 times resulted in KIK…
[ link to this | view in thread ]
Bergman (profile), 29 Oct 2021 @ 12:40am

Re: Not Meant to Win in the first place
Too bad there isn’t an anti-SLAPP law for these frivolous lawsuits.
[ link to this | view in thread ]
Kleider, 29 Oct 2021 @ 2:37am

Re: Re: Re: Re:
Are you german?
In Germany there is a clothing discounter called Kik so my explanation would be, that your keyboard "thought" that was what you meant and just missed the i.
[ link to this | view in thread ]
PaulT (profile), 29 Oct 2021 @ 2:59am

Re: Re: Re: Re: Congressional Shit Show
There's that, and there's the inevitably tendency for those people to bully and punch down, meaning that anyone who differs from the far right ideal will immediately be shouted down, abused and attacked to the point where nobody like that would choose to use such a platform. This is why Gab, Parler, Frank, whatever don't gain any mainstream traction - when those people are able to speak their mind, it's not a mind that any reasonable person wants to share with them.
[ link to this | view in thread ]
Scary Devil Monastery (profile), 2 Nov 2021 @ 5:57am

Re: Re: Re:
Of course not. Because at the end the racist shitwit from the alt-right isn't interested in any principle other than that the world ought to conform with what they hate or love.

It's not so much that they are being hypocrites as that they have the ethics of pond scum. In that they haven't noticeably changed since the 1930's
[ link to this | view in thread ]
Scary Devil Monastery (profile), 2 Nov 2021 @ 6:04am

Re:
"I always find it amusing when the conservatives cry about Google/Youtube, Twitter, and Facebook censoring them because they're absolutely infesting all three platforms."

Yeah, that's about the current US republican; A petty whiner who'll scream about the evils of socialism from their state-subsidized housing enjoying their food stamps, state-subsidized welfare check and state-subsidized health care.
Who will go into frenzied hysterics at the idea that those who are black, gay, trans, etc, should have the same rights as they themselves.
And who'll unironically post ten thousand wordwalls on social media telling everyone they've been silenced!

Hanlon's razor can't apply to conservatives any longer. There is no longer any difference of significance between their stupidity and actual malice.
[ link to this | view in thread ]