No, Facebook's Argument In Response To Muslim Advocates' Lawsuit Is Not 'Awkward'; Facebook Caving On 230 Is What's Awkward

from the so-much-silliness dept

Mother Jones has a slightly weird article saying that Facebook is making an "awkward legal argument" in a lawsuit that was filed against the company by Muslim Advocates, arguing that Facebook and its executives lied to Congress when it insisted that the company would remove hate speech. There's a lot to unpack here, though I'd note that there are two things I find awkward here -- and neither of them are Facebook's legal arguments in the case. The real awkwardness is Muslim Advocates trying to argue that Facebook failing to remove certain content violates consumer protection laws. The second awkward bit is Facebook's constant political posturing about its openness to Section 230 reform.

Let's dig into the case, though. The complaint from Muslim Advocates (and filed by a lawyer who is a long-term critic of Section 230) is fairly straightforward. It says that Facebook's execs have testified before Congress that the company removes content that violates its policies. Yet, when Muslim Advocates alerted the company to content that it believed violated Facebook's policies, the company did not always remove it. Ergo (the complaint says), it means that Facebook's execs lied to Congress... and somehow that violates DC's consumer protection laws.

There's plenty here to roll your eyes about. There is no doubt that (tragically) there is plenty of hate speech on Facebook directed at Muslims (and many other groups). It is also true that content moderation is impossible to do well at scale, and that (1) mistakes will be made and (2) lots of people will disagree with Facebook's interpretation of its own rules. And just because Facebook testifies that if it becomes aware of content that violates its policies, it will take it down, if someone else believes that content violates Facebook's policies, but Facebook doesn't take it down, that does not mean that Facebook lied to Congress. It just means that there are differing interpretations of Facebook's policies, and Facebook is the one who gets to have the final say on that.

The lawsuit, obviously, argues otherwise. I find that argument to be kinda silly. And, if it actually wins the day in court, it would be tremendously problematic for the open internet. Enabling basically anyone to sue a company for not taking down content that the person (but not the company) believes violates policies is a recipe for (1) a ton of frivolous, wasteful litgation and (2) the creation of a near automatic heckler's veto for almost any content online. That would be very, very bad.

Also, the specific claims are kinda weird. How is it a "consumer protection" violation? Well, according to the lawsuit:

The CPPA establishes a right to truthful information from merchants about the consumer goods and services that they provide to people in the District of Columbia.

And thus, because this group claims Facebook lied to Congress, that somehow means that it did not provide "truthful information... about the consumer goods and services they provide." That... is a huge stretch. There are also claims of fraudulent and negligent misrepresentations.

Facebook has responded with two separate motions to dismiss. One is a typical 12(b)(6) motion to dismiss for failing to state a legitimate claim. The second is a separate motion to dismiss under DC's anti-SLAPP law. There are lots of interesting arguments made in both of those filings (some of which overlap), but the crux of the defense is exactly as you'd expect: (1) no one at Facebook said that they'd be perfect in moderating and (2) if Facebook disagrees with some 3rd party about whether or not some content violates Facebook's policies, that's not evidence of any lie.

Billions of people use social media to express themselves, which means that content reflecting the full range of human experience finds expression on platforms like Facebook Facebook agrees with Plaintiff Muslim Advocates that anti-Muslim hate speech is vile, and devotes significant resources to keeping such abuse off its platform based on Community Standards that outline what is and is not allowed on Facebook. Enforcement of the Community Standards requires being aware of potentially violating content, ether through Facebook's own efforts or reports by third parties, and making judgments as to whether that content should be removed as violating the Community Standards. As Facebook has candidly acknowledged, these judgments are subject to disagreement and error, but Facebook remains committed to making its service a place where people feel safe to share with others and express themselves.

Managing a global community in this way has never been done before. Facebook is committed to continuing to improve its enforcement efforts and believes that means engaging Congress and other stakeholders to share and seek input on its policies and practices. As part of this ongoing dialogue, Facebook executives have testified before Congress regarding the Community Standards,

The part of the defense that caught Mothers Jones' interest is that Facebook (correctly) note that this lawsuit is clearly barred under Section 230. And that does seem pretty clear. It's not awkward at all.

...all of Plaintiff's claims are barred by Section 230 of the Communications Decency Act, 47 U.S.C. § 230 (“CDA”), because they seek to impose liability on Facebook for not removing third-party content that Plaintiff believes should be removed. Plaintiff attempts to plead around the CDA by bringing misrepresentation claims, but it is clear from the Complaint that Plaintiff is challenging Facebook's alleged failure to remove certain third-party content that Plaintiff believes violates the Community Standards. These are editorial decisions that go to the core of conduct protected by the CDA.

Mother Jones claims that this is an awkward legal argument because of Facebook's openness to reforming Section 230. But, even for those of us who don't trust Facebook's proposal for reform, there is no indication at all that if Facebook got what it wanted out of 230 reform that this case wouldn't still be barred by it. Facebook's reform proposal is basically that if it engages in best practices regarding content moderation, it still gets 230 protections. And even if Muslim Advocates disagrees, Facebook can make a pretty strong case that it engages in "best practices" regarding content moderation. Indeed, Facebook's proposal also made clear that no reform should punish a company for missing any particular pieces of content.

So, there's nothing in Facebook's legal arguments that goes against its own advocacy regarding 230 reform. So it's difficult to say why that legal argument is "awkward." It's not. It's just Mother Jones trying to spin this into a story -- which is pretty disappointing. Especially considering that Mother Jones has been so active in the good fight for stronger and better anti-SLAPP laws which (as the other filing in this case shows) would protect Facebook here, since this lawsuit seems (also) to be an attempt to punish Facebook and its execs for their speech at Congressional hearings (which is a classic kind of SLAPP situation).

If anything, the "awkward" part is why is Facebook continuing to be so willing to throw Section 230 under the bus, when cases like this (and so many others) show why it totally makes sense and does what it needs to do in making sure that websites can moderate without fear of facing liability for their many, many difficult subjective choices. Of course, we all know the real reason Facebook is doing this: because the politics of the day means that it has to "give" something here since so many people are mad at the company, and Facebook has (unfortunately, probably correctly) realized that if it undermines 230, it can do so in a manner that Facebook can survive, and its smaller competitors cannot.

The rest of the motions to dismiss are worth reading as well, as they deftly call out the silliness of the complaint, including the fact that when Facebook execs say that they remove content that violates policies, that is only after (1) they're aware of it and (2) they, themselves, determine if the content actually violated the policies, something that is inherently subjective:

Contrary to Plaintiff's assertion that Facebook executives represented in Congressional testimony that Facebook removes all content that violates the Community Standards, that testimony makes clear that enforcement of the Community Standards depends on Facebook being aware of potentially violating content and making judgments that are subject to disagreement and error.

As for the argument that this is a consumer protection issue, Facebook notes that that law is about the sale of products, which just doesn't apply here at all:

Plaintiff cannot state any claim under the CPPA because it regulates conduct arising out of consumer-merchant relationships, and Plaintiff does not, and cannot, allege any such relationship with Facebook, or that the alleged misrepresentations were made in connection with the sale of goods or services to Plaintiff or anyone else.

As noted, there's a lot more detail in the filings that is worth reading, but this should give you the gist of both sides of the argument. This lawsuit seems an unfortunately silly one by Muslim Advocates, and frankly undermines the work that the organization does. And, if Facebook wins the anti-SLAPP argument (which is certainly possible), then the organization might even end up on the hook for Facebook's (I'm sure quite expensive, given the multiple well known lawyers it has working on this case) legal bills.

There is one separate thing that is probably worth noting in this case: it does have some similarities to the somewhat infamous Barnes v. Yahoo case in the 9th Circuit, in which the court ruled that via "promissory estoppel," a plaintiff could get around Section 230. In that case, the plaintiff spoke to someone at Yahoo who promised them they would remove some content, but then did not. In that case, the court said that once an employee promised the plaintiff that the content would be removed, the company loses the 230 protections.

However, this case strikes me as notably different in multiple ways (and, of course, is not bound by an already problematic 9th Circuit ruling, since it's in DC superior court). In Barnes, there were not only specific pieces of content that the plaintiff alerted Yahoo to, but then the employee told the plaintiff that the company would "take care of" that content. So that was the promise. Here, the plaintiffs are trying to take broad statements regarding Facebook's content moderation practices to Congress and trying to say that this constituted some sort of binding promise to never be wrong or never disagree with Muslim Advocates' own subjective opinion. And that's just silly.

So, in the end, we have an awkward basic legal argument from Muslim Advocates, and an awkward bit of political posturing by Facebook with its publicity campaign to "reform" Section 230. What is not awkward at all is Facebook's legal response to this silly lawsuit.

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Filed Under: congress, consumer protection, content moderation, mark zuckerberg, section 230
Companies: facebook, muslim advocates


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  • icon
    Stephen T. Stone (profile), 21 Jun 2021 @ 9:40am

    Facebook has (unfortunately, probably correctly) realized that if it undermines 230, it can do so in a manner that Facebook can survive, and its smaller competitors cannot.

    Hey, all y’all anti-230 advocates: Does it hurt to know you’re in bed with Facebook on this?

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

  • identicon
    Anonymous Coward, 21 Jun 2021 @ 9:50am

    If section 230 only applies if others agree with your moderation, it becomes a worthless law.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Portent, 21 Jun 2021 @ 11:59am

    "Plaintiff cannot state any claim under the CPPA because it regulates conduct arising out of consumer-merchant relationships, and Plaintiff does not, and cannot, allege any such relationship with Facebook, or that the alleged misrepresentations were made in connection with the sale of goods or services to Plaintiff or anyone else."

    lol. No matter how many times Facebook loses that argument they keep making it.

    They made the same exact argument in FTC v. Facebook 2019 and they ended up paying $5,000,000,000. It was just 2 years ago. I doubt that they have forgotten.

    They are like Mainstream Media who argue that freedom of the press is some special little carve out just for them. No matter how many times the court quashes that argument they keep making it.

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

    • icon
      sumgai (profile), 21 Jun 2021 @ 6:42pm

      Re:

      I call Bojer.

      They made the same exact argument in FTC v. Facebook 2019....

      No, that fine was for privacy violations and not for "consumer-merchant" relationship idiocy. Instead of relying on your memory, you should operate on the principle that DuckDuckGo is your friend.

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

      • icon
        Toom1275 (profile), 21 Jun 2021 @ 9:05pm

        Re: Re:

        It must be embarassing to Portent, that the biggest weakness in his ranting is that everyone else is literate.

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

      • identicon
        Portent, 22 Jun 2021 @ 7:01am

        Re: Re: 'Oh Please'

        Privacy falls under consumer protection. Its a subsection of consumer protection. Jesus your argument is distinction without difference.

        The argument that Facebook is making. The argument that Facebook always makes and always loses on is that since its a "free" service they are free from federal, state, and in this case district consumer protection laws. They have lost that argument time and time again. Facebook and the rest of big tech want this to be true but they always lose.

        This site makes repeated false legal claims because its 3 users regular are legal novices.

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

    • icon
      Darkness Of Course (profile), 22 Jun 2021 @ 12:11am

      Re: FTC is not a court

      So, maby get a least some of your facts right.

      Another part you completely screwed up, this case has NOTHING to do with FB getting fined $5B for ... privacy blunders. Okay, it is FB, bald face lies re users privacy.

      Come on, pretend to be human. Or they will take away your troll license ya lil' bot.

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

      • identicon
        Portent, 22 Jun 2021 @ 7:11am

        Re: Re: FTC is not a court

        Its a court approved settlement. The FTC brought a suit in 2012. FB tried to quash it making the exact same argument they are making above and they were laughed out of the court.

        Are you saying that the court approves illegal settlements?

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 21 Jun 2021 @ 12:03pm

    "There's plenty here to roll your eyes about. There is no doubt that (tragically) there is plenty of hate speech on Facebook directed at Muslims (and many other groups). It is also true that content moderation is impossible to do well at scale, and that (1) mistakes will be made and (2) lots of people will disagree with Facebook's interpretation of its own rules. And just because Facebook testifies that if it becomes aware of content that violates its policies, it will take it down, if someone else believes that content violates Facebook's policies, but Facebook doesn't take it down, that does not mean that Facebook lied to Congress. It just means that there are differing interpretations of Facebook's policies, and Facebook is the one who gets to have the final say on that."

    A very round about way of admitting that Facebook's terms of service are ambiguous and therefor not legal contracts.

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

    • icon
      Mike Masnick (profile), 21 Jun 2021 @ 5:46pm

      Re:

      A very round about way of admitting that Facebook's terms of service are ambiguous and therefor not legal contracts.

      That... is not at all what that's saying, and that conclusion is laughably wrong.

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

      • identicon
        Portent, 22 Jun 2021 @ 6:48am

        Re: Re:

        You are clearly admitting to there being no meeting of the minds which the court considers the most base form of ambiguity. Its the very definition of an illegal contract. Unless there is a meeting of the minds between both parties the contract is void. Thanks for plashing mike.

        When I took professional contract law the wording the professor used was 'There is no meeting of the minds. The contract is ambiguous.'

        You are admitting that Facebooks terms of service are not legal contracts.

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

  • icon
    ECA (profile), 21 Jun 2021 @ 12:31pm

    And the problem?

    WHAT laws does FB have to follow?
    200 different ones. Thats about the number of countries admitted to the U.N..
    How do you moderate, when even every state int he USA has its own agenda, and wants to Moderate what FB is allowing to be said, posted, and everything else.

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

    • identicon
      Anonymous Coward, 21 Jun 2021 @ 12:56pm

      Re: And the problem?

      By breaking up into 200 different isolated forums defeating the point of the /worldwide/ web.

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Portent, 21 Jun 2021 @ 1:16pm

      Re: And the problem?

      Oh lord have mercy how on earth is the 5 largest publicly traded company on earth going to deal with all this regulation?

      How do lodging services deal with all this local, state and federal regulation? The amazing thing is how little regulation Facebook and the rest of big tech have to deal with relative to other industries.

      Cry me a river!

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

      • icon
        ECA (profile), 22 Jun 2021 @ 12:45am

        Re: Re: And the problem?

        Lodging?
        International..?
        NONE, only those that are local, ask the kid that got 20 lashes in Taiwan(??) for spitting on the street.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 21 Jun 2021 @ 3:47pm

    One way to protect individual reputations while preserving Section 230 is by applying the Fair Credit Reporting Act (FCRA) to sites which aggregate info on individuals (consumers). One such case has been succeeding.

    A site which puts up false info about someone could easily be said to be compiling a credit report on them.

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

    • icon
      fairuse (profile), 21 Jun 2021 @ 4:27pm

      Re:

      1. Nobody is protecting individual reputation but the individual.

      2. FCRA applies to credit card, i.e. finance.

      3. You can't make up laws.

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

      • This comment has been flagged by the community. Click here to show it
        identicon
        Portent, 22 Jun 2021 @ 12:38pm

        Re: Re:

        Wrong!!!

        Credit, Insurance, and Employment

        Facebook and other big tech are very opaque on who they sell information to. If the information they sell is used in any way for credit, insurance, or employment. Then Facebook is a Credit Reporting Agency. I would not be surprised if large insurers consume Facebook information especially for things like life insurance etc. I also wouldn't be surprised if large employers are also Facebook customers. Lets let discovery play out and see just how Facebook information is used.

        To say "FCRA applies to credit card, i.e. finance." is profoundly ignorant. Why do you research before sprouting?

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

    • identicon
      Anonymous Coward, 21 Jun 2021 @ 5:41pm

      Re:

      One way to protect individual reputations while preserving Section 230

      Yeah, nobody believes you want that, Jhon.

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

    • identicon
      Anonymous Coward, 21 Jun 2021 @ 7:55pm

      Re:

      Why do you nutjubs hate the First Amendment?

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

    • icon
      PaulT (profile), 21 Jun 2021 @ 11:17pm

      Re:

      Wow. Are the facts in the article that far against you that you have to stretch that far to make a worthless point against them? Wouldn't it be easier to just not be a raging moron?

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

      • icon
        Darkness Of Course (profile), 22 Jun 2021 @ 12:15am

        Re: Re: I do believe you saw a moron

        A moron in a rage.

        Maybe we should teach civics again. Like to get an online account. Court =/= FTC. Law =/= some Moron's trumped up BS more closely related to telling some gossip over the trailer park fence.

        See, I totally respected the moron because I capped the M once.

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

      • icon
        Scary Devil Monastery (profile), 22 Jun 2021 @ 2:20am

        Re: Re:

        "Wouldn't it be easier to just not be a raging moron?"

        It certainly would, but "not being a raging moron" won't produce the narrative he's looking for, because facts are not on his side.

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

        • identicon
          Portent, 22 Jun 2021 @ 7:17am

          Re: Re: Re: Ah the Unemployed

          Look I know that you and the rest of the regulars here are unemployed but for those of us in the real world dealing with federal, state, and local regulation is just a fact of life.

          I used lodging as an example because lodging is a heavily regulated industry because despite being private it is in the "public interest" and therefore heavily regulated at all levels of government.

          Most industries have to deal with such multiple jurisdiction regulation. An electrician wiring a home has to deal with federal regulations, state regulations, and local regulations.

          This argument of OMG how can Facebook be expected to deal with so many levels of regulation is just ignorant. It shows a bunch of adult children who have never worked in the real world and you are just LARPing online.

          I have no sympathy for Facebook with any small contractor has to deal with pages upon pages more regulation than Facebook.

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

          • identicon
            Rocky, 24 Jun 2021 @ 4:53pm

            Re: Re: Re: Re: Ah the Unemployed

            I used lodging as an example because lodging is a heavily regulated industry because despite being private it is in the "public interest" and therefore heavily regulated at all levels of government.

            And when posting on social media can have the same consequences as being a lodger you would have a point. Lodging is a heavily regulated industry for the simple reason to protect people from physical and monetary harms. Just like how electricians must follow regulations, because otherwise people can get electrocuted or burned to death due to shoddy wiring.

            Come back when people can actually be physically harmed as direct result for using social media.

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

        • icon
          That One Guy (profile), 22 Jun 2021 @ 9:23am

          Re: Re: Re:

          When the facts are on your side, pound on the facts.
          When the law is on your side, pound on the law.
          When neither the facts nor the law are on your side, pound on your keyboard.

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

  • icon
    Lostinlodos (profile), 22 Jun 2021 @ 3:06pm

    :(

    Poor Facebook. Seriously!
    They remove too much. They don’t remove enough. Everyone sue!
    Woohoo.
    Has to suck to be in that business right now.

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

  • icon
    Lyn784wood (profile), 23 Jun 2021 @ 2:15am

    No, Facebook's Argument In Response To Muslim Advocates' Lawsuit

    Facebook Makes an Awkward Legal Argument in Dispute With Muslim Advocacy Group In April, the civil rights group Muslim Advocates sued Facebook and four of what they do is spreading hate, we will ban them from the platform.

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

  • icon
    BJC (profile), 23 Jun 2021 @ 7:12am

    Different Definitions of "Silly"

    I know you guys at Techdirt are mostly non-lawyers, but when saying, "this case is silly," can we distinguish:

    1) In the jurisdictions I'm most familiar with this argument wouldn't fly and I consider it bad policy, but I haven't actually done the research to find out whether we'll be unpleasantly surprised that DC law allows such general averments to incur consumer protection liability

    from

    2) I have carefully examined the consumer protection act at issue to determine that it is not as liberal as the plaintiffs claim as to what counts as a misrepresentation under DC law

    ?

    Because I feel like I'm flying blind trying to comment on this lawsuit; I don't want to have to spend half an hour looking up caselaw on the DC CPPA to determine how far out of the usual realm of claims against statements by services plaintiffs are.

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


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