Meta’s Attorney Said We Were Wrong About Section 230. But It Is Meta That Is Wrong, Not Us.

During the Massachusetts Supreme Judicial Court’s hearing last Friday on whether Meta should be able to escape a lawsuit alleging it designed its platforms to be addictive to minors, two justices asked Meta’s attorney how Meta’s reading of Section 230 can be reconciled with the one EPIC described in our amicus brief. Our brief, joined by several civil society organizations and a team of prominent law professors, explains how the Ninth Circuit, which hears the bulk of Section 230 cases, has limited Section 230 to liability that forces companies to either abandon content moderation, censor users, or stop hosting user-generated content—the so-called “grim choice” or “moderator’s dilemma.”

Meta’s attorney claimed that EPIC got Ninth Circuit precedent wrong. But really, it is Meta’s attorney whose statements directly contradict Ninth Circuit caselaw and the underlying purpose of Section 230. In fact, the Ninth Circuit has repeatedly rejected Meta’s preferred test: that Section 230 immunizes tech companies for any action that can be characterized as a publishing activity.

The Ninth Circuit has repeatedly said that the purpose of Section 230 is to avoid the moderator’s dilemma

The Meta attorney’s most obvious error was to claim, “The Ninth Circuit does not describe their test as being based on the moderator’s dilemma.” The Ninth Circuit has repeatedly said that Section 230 prevents claims against online companies that would place them in the moderator’s dilemma. The Court has designed its Section 230 test to reflect this aim.

In its seminal decision in Roommates.com, the Ninth Circuit, sitting en banc, observed that “the principal or perhaps the only purpose” Congress identified in enacting Section 230 was “to overrule Stratton–Oakmont [sic] v. Prodigy and any other similar decisions which have treated [online service] providers … as publishers or speakers of content that is not their own because they have restricted access to objectionable material.” The Court explained that

In other words, Stratton Oakmont created the moderator’s dilemma by tying heightened liability for user-generated content to a company’s choice to moderate that content. The decision, if adopted broadly, would have forced companies that wished to avoid unlimited tort liability into either abandoning content moderation, censoring users, or no longer hosting third-party content. In enacting Section 230, “Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete.”

In subsequent opinions, including HomeAway.com, Inc. v. City of Santa Monica and Doe v. Internet Brands, the Ninth Circuit repeated its Roommates.com declaration that avoiding the “grim choice” presented in the moderator’s dilemma was the purpose of Section 230. In these cases, along with others like Barnes v. Yahoo, Lemmon v. Snap, and Calise v. Meta, the Ninth Court developed an interpretation of what it means to “treat” an online service provider “as the publisher” of user-generated content that avoids imposing the moderator’s dilemma.

The clearest single articulation of the Ninth Circuit test is in Calise—a case Meta’s lawyers should be familiar with seeing as how Meta was the defendant. There, the Court said a claim “treats” an online service provider “as the publisher” of user-generated content if it (1) “necessarily require[s] an internet company to monitor user-generated content” and to edit or remove offending content; and (2) the duty to monitor that content “springs” from the provider’s “status as a publisher”—i.e., its choice to host or moderate user-generated content. If the answer to both is “yes,” the company faces the moderator’s dilemma: it has no choice but to over-moderate to ensure no unlawful content remains, abandon content moderation, or stop hosting user-generated content. If, instead, the company does not have to monitor, edit, or remove user-generated content to comply, or the duty springs from something other than hosting or moderating user-generated content, the duty does not force the company to choose between one of the options in the moderator’s dilemma.

Imposing liability on Meta for addictive design would not force Meta into the moderator’s dilemma. Instead, the company could implement alternative designs that would not require them to touch their content moderation processes or any user-generated content. And that is a straightforward application of Ninth Circuit precedent.

The Ninth Circuit has explicitly rejected Meta’s preferred traditional publishing functions test

Rejecting the concept of the moderator’s dilemma, Meta’s attorney claimed that the Ninth Circuit—and almost all other federal circuits—apply Section 230 to protect “traditional publishing functions.” The attorney repeatedly claimed, “If the conduct is publishing activity, it is protected by Section 230.” Again, he is flatly mistaken.

The Ninth Circuit—and others—have repeatedly refused to provide Section 230 protections to traditional publishing activities. For example, in Barnes v. Yahoo!, the Ninth Circuit refused to apply Section 230 to a claim that would have required Yahoo to remove a tortious user-generated post after promising to do so. Removing content is a textbook example of a traditional publishing function, but Yahoo was not protected under Section 230 because the claim did not impose the moderator’s dilemma. Yahoo could have avoided the duty by simply not promising to take the offending content down.

In Calise—again, a case in which Meta was the defendant—the Ninth Circuit explicitly rejected Meta’s plea for the court to adopt the the traditional publishing functions test. There, the Court noted that “Meta asks us to apply a “but for” test: if Plaintiffs’ claims hinge on publishing-related activity, then [Section 230] bars that claim. . . . Such a rudimentary fact-bound inquiry quickly falls apart and runs up against our precedent.”

The Ninth Circuit was right to reject the traditional publishing functions test because it is wildly overbroad and divorced from Section 230’s purposes. One of Meta’s attorney’s own examples from the Massachusetts oral argument helps illustrate this. Meta’s attorney claimed, “If you passed a law and said that comic books need to be published in black and white because colorful comics are too engaging, then that would violate Section 230 because it is a publishing function to decide how to publish.” This is wrong for many reasons, the most important of which is that Section 230 clearly only applies when a claim seeks to hold an internet company liable for third-party speech— “information provided by another information content provider.” The choice of color in a comic book is not third-party speech. It might be protected by the First Amendment but claiming that Section 230 protects it is absurd.

* * *

The Ninth Circuit and other courts have rightfully recognized that Meta’s desired Section 230 test would “create a lawless no-man’s-land on the Internet,” hurting users and society to boost the tech giants’ bottom line. The Massachusetts Supreme Judicial Court should also reject Meta’s argument and let the Commonwealth’s case proceed.