from the idiots-jointly-and-severally-responsible-for-their-idiocy dept
Facebook is being sued again for its involvement in another act of gun violence. [half a h/t to MediaPost, which covered the lawsuit but apparently couldn’t bring itself to post the actual filing]
Following the shooting of a black man by Kenosha, Wisconsin police officers, the city erupted in protests and riots. For no apparent reason, a bunch of self-described militias and their members decided they could protect the city from rioters. Organizing on Facebook, the “Kenosha Guard” group members decided they could be a law unto themselves and decided to strap up and show up, informing the local PD they had 3,000 “RSVPs” representing a bunch of willing and possibly able “militia” and/or “boogaloo” boys locked-and-loaded.
Somehow, Antioch, Illinois resident Kyle Rittenhouse was able to talk his mom into driving him and his guns into the heart of the civil unrest. The 17-year-old shot three protesters, killing two of them during an altercation. Rittenhouse then walked past Kenosha cops back to his mom’s car and went home. He turned himself in to Illinois law enforcement and is now facing multiple charges, including first-degree intentional homicide.
Facebook’s involvement is limited to the pages and groups it hosted. The “Kenosha Guard” page and its call for violence against protesters was reported nearly 400 times. Facebook refused to take it down. At one point, it claimed it had removed it but that statement was later shown to be false. The “call to arms” post had been removed voluntarily by its creator, Kevin Mathewson, shortly after the shooting in Kenosha. (Mathewson and Rittenhouse are also being sued.) Facebook CEO Mark Zuckerberg later called this failure to remove the reported page an “operational mistake.”
When tragedies happen, lawsuits follow. But just because obvious and ample damage has been inflicted on the plaintiffs (the lead plaintiff’s boyfriend was killed by Kyle Rittenhouse) doesn’t mean there’s recourse available, unfortunately. Arguing that Facebook is liable for violence perpetrated by so-called “Kenosha Guard” members (and remember, Rittenhouse was not a member of this Facebook group) is a non-starter. Section 230 shields Facebook from being held responsible for third-party content and its failure to remove a page users complained about isn’t evidence of negligence. (And the decision to list the “Boogaloo Bois” as a defendant is every bit as ridiculous as one cop’s attempt to sue “Black Lives Matter” and a Twitter hashtag.)
But those are the arguments being made in this lawsuit [PDF].
With regard to Defendant Facebook, there were over 400 reports of the violent rhetoric taking place on the Kenosha Guard event page, establishing Facebook had ample knowledge of the conspiracy. Removing this page from its platform would have greatly aided in preventing the organization and popularization of the militias. Perhaps, if Facebook had taken down the page in accordance with its policies, Rittenhouse would never have traveled to Kenosha. Nonetheless, Facebook neglected to prevent the furtherance of the conspiracy, in violation of its duties enumerated in 42 U.S.C. § 1986.
“Perhaps” is not a great legal argument — not when you’re trying to hold a content platform liable for the actions of site users who may or may not have actually been involved with the militia presence in Kenosha. Not only that, there still seems to be no link between Kyle Rittenhouse and the oft-reported “Kenosha Guard” page or its “Call to Arms” event.
This same theory is pursued under state law, where it might be a little more likely to survive a motion to dismiss.
In violation of Wisc. Stat. § 895.045 and the common law standard set forth in Wisconsin case law, Facebook breached its duty to stop the violent and terroristic threats that were made using its tools and platform. A duty consists of “the obligation of due care to refrain from any act which will cause foreseeable harm to others . . . . A defendant’s duty is established when it can be said that it was foreseeable that [the] act or omission to act may cause harm to someone.” Coffey v. Milwaukee, 74 Wis. 2d 526, 536 (1976) (internal citations omitted).
But for Facebook’s failure to respond to the complaints about the Kenosha Guard’s call to Arms and the co-conspirators’ violent rhetoric, the Kenosha Guard would not have been able to amplify its message and summon armed, untrained militia members to assault and terrorize Plaintiffs. As a result of this inaction, Facebook is liable for the harm its negligence caused.
This still requires the plaintiffs to prove Facebook was at least as negligent as those who actually posted violent rhetoric or engaged in violent acts or intimidation because of what they read on the “Kenosha Guard” page. But even a very charitable reading of the law would place most of the liability on those who engaged in the “call to arms” and those who responded.
Social media services have been sued under a variety of legal theories in hopes of holding them accountable for violent actions taken by their users. In almost every case, the social media services have prevailed. For better or worse, the legal obligations of platforms are minimal. Clearly illegal content must be removed. Everything else is at the platforms’ discretion. Good faith moderation and bad faith moderation efforts are the same in the eyes of the law and the law — primarily Section 230 of the CDA — says platforms can’t be sued because some users asked people to bring guns to a protest. And it can’t be sued when one user does what’s requested and kills someone.
This isn’t to say Facebook should have ignored the posting more than 400 times. It’s just saying there’s a lot of legal distance to travel between Facebook being terrible at moderation and Facebook being responsible for a bunch of white dudes with guns doing stupid and harmful things.
Filed Under: content moderation, intermediary liability, kenosha, kenosha guard, kyle rittenhouse, police, protests, section 230, wisconsin