Court: No, You Can’t Sue Facebook Claiming It Takes Down More Pro-Palestinian Speech Than Pro-Israel Speech
The Supreme Court is about to review Texas' HB20 law, that (among other unworkable things) says that websites cannot moderate based on viewpoint." Of course, websites don't moderate based on viewpoint, but rather whether or not they think you've violated their rules/terms of service. Should the law be allowed to go into effect, it's not at all clear how websites would go about complying with the law, but you can bet there would be a shit ton of very, very stupid lawsuits.
Prof. Eric Goldman alerts us to just the sort of lawsuit that would likely be common, even though this was filed unrelated to Texas' law. Amro Elansari* filed a pro se lawsuit against Meta, claiming that the company moderates more pro-Palestinian content and less pro-Israel content (this lawsuit was filed prior to October 7th, and various additional news reports suggesting this underlying claim may be accurate).
However, as the court rightly points out to Elansari... so what? The district court dismissed the case and Elansari appealed to the 3rd circuit who easily upheld the lower court decision. The court notes that none of Elansari's own content was moderated, but that he's bringing a general anti-discrimination claim. But, it still doesn't make any sense. As the court (rightly) notes, there's no right to information."
Instead, Elansari relies on Title II, which bars certain forms of discrimination but does not create a right to information. Moreover, this statute cannot be understood as granting him a right to relief because he does not allege that he was personally denied the full and equal enjoyment" of Meta's service or that he could not access the same content as any other Meta user, let alone that he could not do so on the basis of his race or religion. See 42 U.S.C. 2000a(a). Additionally, Title II does not entitle Elansari to a right to relief because Meta is not a place of public accommodation." See Ford v. Schering-Plough Corp., 145 F.3d 601, 612-14 (3d Cir. 1998) (holding that Title II is limited to physical structures and accommodations).
Thankfully, the court also notes that Section 230 would separately kill the lawsuit, as you can't sue an interactive computer service for its moderation decisions.
Furthermore, Elansari seeks to hold Meta liable for its decisions regarding which content to publish, but 230 of the Communications Decency Act precludes courts from entertaining claims that would place a computer service provider in a publisher's role,' and therefore bars lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions - such as deciding whether to publish, withdraw, postpone, or alter content.'" Green v. America Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003) (quoting Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). In sum, Elansari presents no support, nor are we familiar with any, to ground his liberally construed argument that he is legally entitled to relief because Meta does not publish his preferred racial or religious content.
This is a pretty simple and straightforward case, and it's no surprise that the court dismissed the case easily (and that the appeals court upheld that ruling). But as Goldman notes, it is just the type of case we'd likely see flooding the courts if the Supreme Court allows HB20 and other laws like it.
Everyone is mad about some aspects of how websites moderate. I dislike how most websites moderate. But none of that should give me the right to sue over those moderation choices. If I don't like it, I can go elsewhere, or even seek to create my own site that does things differently. Or, of course, I can seek to persuade a website to change. That should be the extent of the recourse anyone has if they disagree with moderation decisions.
I do wonder if people who support laws like HB20 - and falsely think that it will magically end the anti-conservative" bias in moderation that they think exists (but studies repeatedly show does not) - realize how much the laws will be used by the very people they dislike the most to force their content into certain spaces.
* FWIW, Elansari appears to be a serial litigant, as we've written about his failed lawsuits against Runescape for muting his account, and against Tinder for sending notifications that people like you," and convincing him to sign up for a paid account.