Russian Troll Farm Tries Again To Sue Facebook, Despite Having Its Original Complaint Dismissed On 230 Grounds

Legal Issues

from the try,-try-again dept

Last month we wrote about how Section 230 of the Communications Decency Act did exactly what it was supposed to do in protecting Facebook from a bogus lawsuit from a Russian news trolling operation, called Federal Agency of News (FAN). Facebook had kicked FAN off its platform soon after the 2016 election, when it realized it was a Russian operation spewing nonsense, often targeting people voting in the 2016 US election. FAN somehow found US lawyers from a previously reputable firm to represent them in this quixotic attempt to sue Facebook. The whole thing flopped, of course, because Facebook is free to kick whomever it wants off its platform, including Russian trolls seeking to spread fake news to influence an election. The court dismissed the case easily under Section 230. All of the Russian attempts to claim it violated their 1st Amendment rights, California civil rights, breach of contract, etc., went nowhere fast.

But, since the court left FAN free to try an amended complaint, it has now filed an amended complaint (first spotted by John Roddy). Somewhat incredibly, it does not appear to make any new arguments. It just repeats the old ones with more emphasis.

The key to the new filing is an incredibly, laughably weak attempt to connect Facebook to the US government, in an attempt to argue that the Constitution applies to Facebook as well. This is almost comically badly done in the complaint. It basically looks for any scrap of evidence of Facebook working with the US government to combat Russian election interference as somehow proof that Facebook magically becomes a state actor.

The United States government has been complicit in Facebook?s efforts to rid the platform of Russian language accounts.

In a United States Intelligence Community report regarding alleged Russian activities and intentions in the 2016 United States presidential election, published in January 2017, the United States Intelligence Community referred to the IRA as an agency of ?professional trolls? whose likely financier is ?a close Putin ally with ties to Russian intelligence.? United States Intelligence Community, Assessing Russian Activities and Intentions in Recent U.S. Elections, available at: https://www.dni.gov/files/documents/ICA_2017_01.pdf.

[….]

On September 21, 2017, Facebook?s General Counsel, Colin Stretch, stated that Facebook would provide the United States Congress with information related to the 3,000 advertisements Facebook previously located. Colin Stretch, Facebook to Provide Congress With Ads Linked to Internet Research Agency, available at: https://newsroom.fb.com/news/2017/09/providing-congress-with-ads-linked-to-internet-researchagency/.

[….]

On or about September 21, 2017, co-founder, chairman and chief executive officer of Facebook, Mark Zuckerberg, published a video on Facebook explicitly stating that Facebook is ?actively working with the U.S. government on its ongoing investigations into Russian interference? and providing information to the United States Department of Justice Office of Special Counsel (?Special Counsel?), headed by Robert Mueller.

Sorry, but sharing some information on Russian interference with the US government does not, in any way, make Facebook a state actor. Even if what happened was presented honestly (and it is not), at best, it would show that the trolls have an argument against the US government for supposedly telling platforms to remove the Russian trolls’ content and accounts. But that’s clearly not what happened. And nothing in the complaint comes anywhere close to the standards necessary to turn a private company into a public state actor.

But, hey, FAN’s lawyers seem to be happy to give it a shot.

The internet is a public forum available to all persons around the world to post or otherwise publish news articles. It also is intended to allow persons around the world, including citizens of the United States to access news and opinions from entities around the world.

The internet may be a public forum, but Facebook is a private company guys. Nice try.

The ?Rules of Facebook? state that anyone who abides by Facebook?s rules and signs a user agreement is entitled to use its forum.

They also state that Facebook can remove your account, so, who cares?

The constitutional protections of the Bill of Rights of the U.S. Constitution apply to all public fora and, since Facebook is a public forum, or at least a limited public forum, the constitutional protections of the Bill of Rights apply to Facebook and the actions it takes to curtail free speech on the internet.

This is not how any of this works — and indeed, the court, in its ruling last month, totally rejected this. From that ruling, which the lawyers here ignore:

Courts have rejected the notion that private corporations providing services via the internet are public fora for purposes of the First Amendment. For instance, in Prager Univ. v. Google LLC, this Court rejected the notion that ?private social media corporations . . . are state actors that must regulate the content of their websites according to the strictures of the First Amendment? under public forum analysis. 2018 WL 1471939, at *8 (N.D. Cal. Mar. 26, 2018) (emphasis in original). In addition, the Ebeid court rejected the argument that Facebook is a public forum. 2019 WL 2059662, at *6. Moreover, in Buza v. Yahoo!, Inc., the court held that the plaintiff?s assertion that ?Yahoo!?s services should be seen as a ?public forum? in which the guarantees of the First Amendment apply is not tenable under federal law. As a private actor, Yahoo! has every right to control the content of material on its servers, and appearing on websites that it hosts.? 2011 WL 5041174, at *1 (N.D. Cal. Oct. 24, 2011). Furthermore, in Langdon v. Google, Inc., the court held that ?Plaintiff?s analogy of [Google and other] Defendants? private networks to shopping centers and [plaintiff?s] position that since they are open to the public they become public forums is not supported by case law.? 474 F. Supp. 2d 622, 632 (D. Del. 2007).

At bottom, the United States Supreme Court has held that property does not ?lose its private character merely because the public is generally invited to use it for designated purposes.? Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). Thus, simply because Facebook has many users that create or share content, it does not mean that Facebook, a private social media company by Plaintiffs? own admission in the complaint, becomes a public forum.

This lawsuit’s weak attempt to tie Facebook to the US government is not going to work. This is just Russian trolls throwing money away to expensive US lawyers.

In addition, Facebook also acts at the behest of the government of the United States in its attempts to regulate free speech.

If this were true (and it’s not), then their complaint would be with the US government and not Facebook. But you don’t see them suing the US government.

Facebook founder and CEO, Mark Zuckerberg, published a video on Facebook explicitly stating that Facebook is ?actively working with the U.S. government on its ongoing investigations into Russian interference.? In addition, it is believed that many of Facebook?s current security personnel are former members of the U.S. intelligence and law enforcement communities.

None of that makes Facebook a state actor.

This agreement between Facebook and the U.S. government constitutes a conspiracy to deny FAN its free speech rights guaranteed under the U.S. Constitution.

Bring on the RICO claims…

This lawsuit is going to get tossed. And probably pretty quickly. I’m guessing the judge won’t be particularly happy about it. But, hey, the lawyers will get their cash for filing what they must know is a laughably silly amended complaint.

Filed Under: cda 230, fake news, russian trolls, section 230
Companies: facebook, federal agency of news