Ninth Circuit Shuts Down 'Terrorists Used Twitter' Case But Not Because Of Section 230

from the this-is-ok-too dept

With the event at Santa Clara earlier this month, and the companion essays published here, we've been talking a lot lately about how platforms moderate content. It can be a challenging task for a platform to figure out how to balance dealing with the sometimes troubling content it can find itself intermediating on the one hand and free speech concerns on the other. But at least, thanks to Section 230, platforms have been free to do the best they could to manage these competing interests. However you may think they make these decisions now, they would not come out any better without that statutory protection insulating them from legal consequence if they did not opt to remove absolutely everything that could tempt trouble. If they had to contend with the specter of liability in making these decisions it would inevitably cause platforms to play a much more censoring role at the expense of legitimate user speech.

Fearing such a result is why the Copia Institute filed an amicus brief at the Ninth Circuit last year in Fields v. Twitter, one of the many "how dare you let terrorists use the Internet" cases that keep getting filed against Internet platforms. While it's problematic that they keep getting filed, they have fortunately not tended to get very far. I say "fortunately," because although it is terrible what has happened to the victims of these attacks, if platforms could be liable for what terrorists do it would end up chilling platforms' ability to intermediate any non-terrorist speech. Thus we, along with the EFF and the Internet Association (representing many of the bigger Internet platforms), had all filed briefs urging the Ninth Circuit to find, as the lower courts have tended to, that Section 230 insulates platforms from these types of lawsuits.

A few weeks ago the Ninth Circuit issued its decision. The good news is that this decision affirms that the end has been reached in this particular case and hopefully will deter future ones. However the court did not base its reasoning on the existence of Section 230. While somewhat disappointing because we saw this case as an important opportunity to buttress Section 230's critical statutory protection, by not speaking to it at all it also didn't undermine it, and the fact the court ruled this way isn't actually bad. By focusing instead on the language of the Anti-Terrorism Act itself (this is the statute barring the material support of terrorists), it was still able to lessen the specter of legal liability that would otherwise chill platforms and force them to censor more speech.

In fact, it may even be better that the court ruled this way. The result is not fundamentally different than what a decision based on Section 230 would have led to: like with the ATA, which the court found would have required some direct furtherance by the platform of the terrorist act, so would Section 230 have required the platform's direct interaction with the creation of user content furthering the act in order for the platform to potentially be liable for its consequences. But the more work Section 230 does to protect platforms legally, the more annoyed people seem to get at it politically. So by not being relevant to the adjudication of these sorts of tragic cases it won't throw more fuel on the political fire seeking to undermine the important speech-protective work Section 230 does, and then it hopefully will remain safely on the books for the next time we need it.

[Side note: the Ninth Circuit originally issued the decision on January 31, but then on 2/2 released an updated version correcting a minor typographical error. The version linked here is the latest and greatest.]


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 12 Feb 2018 @ 3:50pm

    Yeah, you fiends TRIED to gain complete immunity for globalist mega-corporations which fund you, stretching the statute far beyond what it says.

    But that's not LAW which applies to everyone equally, it's a legislated PRIVILEGE that increases your gain because less RISK. Print publishers do not have that immunity.

    However, the topic prior today is not whether "platforms" are responsible for ACTS committed, but whether a "platform" can arbitrarily control or remove accounts when there's no offense under common law.

    And I say NO, corporations with "platforms" are NOT empowered to control the speech of "natural" persons any more -- no, rather less, actually -- than physical venues, because Free Speech is what they offer.

    reply to this | link to this | view in thread ]

  2. identicon
    Jordan, 12 Feb 2018 @ 4:05pm

    Interesting

    I'd like to ask the plaintiffs in their cases what their realistic and reasonable expectations are of a public web service that allows literally billions of people to say whatever they want.

    Is it, they are annoyed it isn't magically blocked, or are they annoyed the moderation doesn't come fast enough? And finally do they believe the victims would be alive in the event the social media platform never existed?

    reply to this | link to this | view in thread ]

  3. icon
    ECA (profile), 12 Feb 2018 @ 4:15pm

    BESIDES all the alternatives..

    Forget that there are 1000+ chat programs and you can use them from ANY PLACE IN THIS WORLD..

    ASK those filing 1 question..
    How would it be, that a person in your Family/group/company/corp went out and SHOT/killed someone...
    AND you were held liable?

    THE BEST LEADER is the one that LEADS from the front, not the CHICKEN thats still sitting at home EATING DINER, Watching you DO as HE WISHES..

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 12 Feb 2018 @ 4:23pm

    >However, the topic prior today is not whether "platforms" are responsible for ACTS committed, but whether a "platform" can arbitrarily control or remove accounts when there's no offense under common law.

    >And I say NO, corporations with "platforms" are NOT empowered to control the speech of "natural" persons any more -- no, rather less, actually -- than physical venues, because Free Speech is what they offer.

    I've found a very good definition of "crackpot" is someone who asks a stupid question, and then offers such an astonishingly stupid answer that everyone forgets how stupid the question was, and starts trying to give the correct answer as if the question mattered.

    Anybody can have a "platform"--whether or not they collaborate with other people to operate it, and regardless of what collaboration agreement they have. Anyone who (like me) has ever helped moderate a "platform" will have deleted posts or accounts without attempting to define, let alone apply, anyone's concept of "natural law"--even supposing by some miracle there were actually two "natural persons" on earth who agreed on exactly what "natural law" might be.

    To a crackpot, "arbitrary" is one of those irregular adjectives--I "make judgment calls", you "act arbitrarily", he's "a control freak".

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 12 Feb 2018 @ 5:28pm

    I think this ruling is better than one from Section 230 would be. A ruling based on the CDA would be good news for Internet companies: they would not have to worry about incidentally providing services to terrorists. A ruling based on the Anti-Terrorism Act is good news for all law-abiding companies: unless they give the terrorist a special break, they do not have to worry about incidentally providing Internet services, renting cars, selling saws, or providing transit for terrorists.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 12 Feb 2018 @ 5:41pm

    Re:

    Gobble that RIAA cock blue! You can do it!

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 12 Feb 2018 @ 5:54pm

    Re: Yeah, you fiends TRIED to gain complete immunity for globalist mega-corporations which fund you, stretching the statute far beyond what it says.

    lol

    reply to this | link to this | view in thread ]

  8. identicon
    Christenson, 12 Feb 2018 @ 6:44pm

    Why the delay on something this big?

    Is this PACER that has slowed down the news in the form of the court's ruling?

    Or is it something more along the lines of Hanlon's razor somewhere?

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 12 Feb 2018 @ 7:26pm

    Re: Yeah, you fiends TRIED to gain complete immunity for globalist mega-corporations which fund you, stretching the statute far beyond what it says.

    And I say yes they are.

    Because I’m the goddamn Batman.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 12 Feb 2018 @ 9:21pm

    Re: Yeah, you fiends TRIED to gain complete immunity for globalist mega-corporations which fund you, stretching the statute far beyond what it says.

    > *Print publishers do not have that immunity.*

    You do know that this is the internet right? It doesn't work the same as traditional print.

    In traditional print for anything to be published, the publisher had to actually actively give permission to someone to print something, so they were actively involved in whatever was being printed. The internet removed that requirement/limitation.

    On forums/comments/reddit/facebook/twitter/etc... there are no people, moderators, administrators, or otherwise that give a thumbs up or down to it going live. You click post/submit/enter/etc... and it is immediately viewable. The companies are basically putting out a big sandbox and telling everyone to go have fun. Only when someone starts making enough noise do they step in and actually do moderation.

    reply to this | link to this | view in thread ]

  11. icon
    PaulT (profile), 13 Feb 2018 @ 2:26am

    Re: Re: Yeah, you fiends TRIED to gain complete immunity for globalist mega-corporations which fund you, stretching the statute far beyond what it says.

    Exactly. It's like complaining that there's different rules for drivers than there are for cyclists, or that a telephone conversation is treated differently to a mailed letter. No matter how similar they are in principle, publishing works on a fundamentally different level on a site with user-generated content than it does in a medium where everything is pre-approved by an editor. Hence, different rules apply where those fundamental difference exist.

    No matter how much our resident moron whines, a site like Facebook is literally impossible to operate in the same way as a daily printed newspaper, and thus they need to be regulated differently.

    reply to this | link to this | view in thread ]

  12. icon
    PaulT (profile), 13 Feb 2018 @ 2:36am

    Re: Yeah, you fiends TRIED to gain complete immunity for globalist mega-corporations which fund you, stretching the statute far beyond what it says.

    "But that's not LAW which applies to everyone equally"

    Law applies to everyone equally - if you commit an action, you are responsible for the consequences. You, however, wish to hold platforms responsible for actions that other people committed, which is where your ignorance show and your argument disintegrates before you.

    "whether "platforms" are responsible for ACTS committed"

    You missed the important word out as ever. They should be responsible for acts that THEY committed. They should not be held responsible for acts that OTHERS have committed. It's a very important distinction, but one you deliberately ignore as it undermines your entire schtick.

    "whether a "platform" can arbitrarily control or remove accounts when there's no offense under common law."

    Yet again, if you weren't insistent on being an ignorant dick - yes, they can. The common law you're so obsessed with does not apply. Facebook can kick you out for being a dick, just as your local bar can (and probably has) kicked you out for being to prick. As long as they don't violate any other law in doing so (such as kicking you out for being gay, rather than just being an asshole), they can do what they wish.

    "corporations with "platforms" are NOT empowered to control the speech of "natural" persons any more -- no, rather less, actually -- than physical venues"

    No, they're not. Nor are they attempting to do so. It's only in your deliberately ignorant worldview that they are trying to do such a thing.

    It should be repeated, for the sake of the hard of thinking - all that's happening here is that some people tried to sue Twitter because other people used their service to say things. The court agrees that they should not be held responsible for speech they did not say.

    I support that decision, whether it's Twitter in the defense chair, your local library or whichever council's street corner you choose to rant and rave at passers-by whenever you remove yourself from your grease-stained keyboard and step blinking into the sunlight.

    reply to this | link to this | view in thread ]

  13. icon
    Richard (profile), 13 Feb 2018 @ 3:44am

    Re: Re: Yeah, you fiends TRIED to gain complete immunity for globalist mega-corporations which fund you, stretching the statute far beyond what it says.

    _As long as they don't violate any other law in doing so (such as kicking you out for being gay, rather than just being an asshole),_

    Although they can't kick you out for _being_ gay they are not required to propagate or endorse your opinions on the subject.

    The most recent judgement in this area has made that point clear.

    Hopefully the supreme court will endorse that judgement and we can put an end to the idea that the law requires a business to publish speech that it disagrees with merely because that speech comes from and/or relates to a "protected class".

    reply to this | link to this | view in thread ]

  14. icon
    PaulT (profile), 13 Feb 2018 @ 4:38am

    Re: Re: Re: Yeah, you fiends TRIED to gain complete immunity for globalist mega-corporations which fund you, stretching the statute far beyond what it says.

    "Although they can't kick you out for _being_ gay they are not required to propagate or endorse your opinions on the subject."

    It seems to be a tricky area, but it's one with very good reasons to be complicated. "You can get on the bus but sit at the back and don't talk" is clear discrimination even if you're technically offering the same transport service.

    "The most recent judgement in this area has made that point clear."

    Do you have a link? I don't recall anything specific, though if you tell me which case that might refresh my memory.

    "the law requires a business to publish speech that it disagrees with merely because that speech comes from and/or relates to a "protected class"

    I believe that the right remains for any platform to exercise editorial control. Where it gets sticky is where they have a clear bias - for example, if they have a standard "no discussing gay marriage" policy and they kick off people, gay and straight, for discussing either end of the issue, that's fine. If they keep all the people spreading hateful anti-gay propaganda, and kick off the gay people promoting tolerance, then there might be an issue.

    That's my understanding, anyway, though I'd welcome any correction.

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer
Anonymous number for texting and calling from Hushed. $25 lifetime membership, use code TECHDIRT25
Report this ad  |  Hide Techdirt ads
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.