Content Regulation / Censorship, Digital Rights
Netchoice v. Paxton
In Progress Mixed Outcome
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On May 9, 2019, the United States District Court of the Northern District of California dismissed a First Amendment claim against Facebook. The case originated after Mr. Sadek Raouf Ebeid argued that Facebook had undermined this advertisement campaign calling for the recall of John Casson, the then-British Ambassador to Egypt. According to the plaintiff, Facebook suppressed visibility and removed some of his posts, and did not boost the content when promoted. The Court determined that Mr. Ebeid had failed to identify the contract and provision within the contract allegedly breached by Facebook. Likewise, the Court deemed he had failed to state a claim under Title II of the Civil Rights Act because he had not adequately alleged that Facebook’s conduct was based on the plaintiff’s race, color, religion, or national origin. More, the Court determined that Facebook’s decision to remove the plaintiff’s posts undoubtedly fell under “publisher” conduct and rejected the argument that Facebook was a state actor because it allegedly regulated speech in a public forum.
Mr. Sadek Raouf Ebeid (the plaintiff) was born and raised in Cairo, Egypt, but at the time of the dispute, he was a resident of Arizona. As part of his active participation in political and national issues of Egypt, in 2010, created a public Facebook page titled “Egypt-Cradle of Love” (the “ECL page”). According to the plaintiff, the page’s purpose “was to promote religious tolerance and the mutual acceptance of people of all faiths in Egypt and the Middle East.” [p. 1] Before the events that originated in the instant case, the plaintiff regularly used Facebook’s boost feature to promote posts on the ECL page.
Between March 2017 and August 2017, Mr. Ebeid started an advertisement campaign on the ECL page calling for the recall of John Casson, the then-British Ambassador to Egypt. Before this, he had regularly used Facebook’s boost feature to promote posts on the ECL page. As the campaign gained popularity, Mr. Ebied allegedly experienced repeated restrictions and interference by Facebook. According to the plaintiff, Facebook removed some posts and restricted or suspended Mr. Ebeid and other administrators of the page access to the platform or certain of its features.
In August 2017, Facebook suspended Mr. Ebeid’s personal Facebook page for 30 days. In response, in September 2017, two people created a Facebook group called “Friends of Dr. Sadek Raouf Ebeid” (the “Friends of Ebeid page”). Over the following months, Mr. Ebeid and others shared posts from the ECL page on their profiles and on the Friends of Ebeid page.
In December 2017, Facebook notified Mr. Ebeid that sharing posts from the ECL page would result in the platform restricting his use of the Facebook platform. Between September 2017 and February 2018, Facebook restricted Mr. Ebeid from posting or joining any Facebook group—including the Friends of Ebeid group—approximately 16 times. Each time Facebook restricted his access, he appealed the decision. Moreover, on at least five occasions, Facebook allegedly removed numerous posts made by the plaintiff on the Friends of Ebeid page and the ECL page, labeling them “spam.” Though Facebook reversed its decision after Ebeid challenged Facebook’s removal of the posts, Facebook subsequently continued to remove similar posts as “spam.”
According to the complaint presented to the Court, Mr. Ebeid’s Facebook removed his posts and restricted “his access solely to interfere with his ability to campaign for the recall of the British Ambassador.” Likewise, Mr. Ebeid claimed that throughout April and May 2018, Facebook told him his posts were being boosted as requested when that was not the case. Regarding the latter, the plaintiff’s sole support for the allegation was that his boosted posts had reached about 100,000 Facebook users in the past, while Ebeid’s April and May posts, which were similar in content and targeted demographic to the past posts, had reached only an insignificant number of users.
On May 1, 2019, Facebook presented a motion to dismiss to the District Court of the Northern District of California.
The main issue for the Court to analyze in this case was if Facebook could be held liable for restricting what Mr. Ebeid could post on the platform.
Mr. Ebeid alleged the following violations: (i) the Civil Rights Act of 1964, 42 USC § 2000a, et seq. (“Title II”); (ii) the First Amendment of the US Constitution; (iii) California’s Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq. (the “UCRA” or “Unruh Act”); (iv) fraud/intentional misrepresentation; (v) breach of contract; (vi) breach of the implied covenant of good faith and fair dealing; and (vii) California’s Unlawful Business Practices Act, Cal. Bus. & Prof. Code § 17200 et seq. (the “UCL”).
The Court recalled that Facebook argued that § 230 of the Communications Decency Act (the “CDA”) immunizes it from users’ claims. In the immediate case, according to the platform, it was immune from Mr. Ebeid’s claims since they essentially sought to hold Facebook liable for restricting what he could post on the platform. The Court agreed with the defendant considering the precedent set in the case of Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, in which it was determined that “Section 230 immunizes providers of interactive computer services against liability arising from content created by third parties.” [p. 5]
The Court highlighted that under § 230(c)(1) of the CDA, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” [p. 5] Regarding whether Facebook’s decision to remove Mr. Ebeid’s posts was under ‘publisher’ conduct, the Court recalled the parties’ arguments on the matter. On the one hand, Facebook contended that Mr. Ebeid’s content-based-restriction claims originated from the company’s decision to remove or restrict his ability to publish posts. According to Facebook, such acts were traditional publisher functions protected by the CDA. On the other hand, Mr. Ebeid argued that the content-based-restriction claims allege discrimination; thus, he didn’t seek to hold Facebook liable as the publisher or speaker of the information at issue. The Court referred to the case of Barnes v. Yahoo! to underscore that when determining whether the CDA immunizes a defendant from liability, the Court must look to “whether the cause of action inherently requires the court to treat the defendant as the ‘publisher or speaker of content provided by another.” [p. 7]
The Court then examined whether Facebook’s alleged violations derived from the company’s status or conduct as a publisher. It then recalled that publication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content. The Court emphasized that publishers determine whether and what to publish. In its opinion, Facebook’s decision to remove Mr. Ebeid’s posts undoubtedly fell under “publisher” conduct. Thus, the Court, by referencing the cases of Riggs v. MySpace, Inc., Fields v. Twitter, Inc., and Gonzalez v. Google, Inc., concluded that the CDA precluded any claim arising from Facebook’s on-and-off restriction of the plaintiff’s use of and ability to post on the platform as a matter of law.
The Court then explained why Mr. Ebeid failed to state a Title II claim of the Civil Rights Act. It recalled that Section 2000a(a) of Title II states: “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.” [p. 9]
In the Court’s view, Mr. Ebeid’s complaint alleges the plaintiff’s national origin; other than a conclusory allegation that mirrors the language of § 2000a(a), his First Amendment Complaint did nothing to connect his national origin or his use of Arabic to Facebook’s alleged conduct. More, the Court considered that, if anything, Facebook denied Mr. Ebeid access to its services based on his views about the then-British Ambassador to Egypt. Further, by referencing the case of Clegg v. Cult Awareness Network, the Court highlighted that Title II covers only places, lodgings, facilities, and establishments.
The Court then explained why Mr. Ebeid failed to state a First Amendment Claim. It first recalled that, though the plaintiff conceded that Facebook is a private entity, he argued that Facebook could be held liable under the First Amendment by regulating his speech in a public forum under the public function test, which, when satisfied, treats private entities as state actors. By referencing the case of Brunette v. Humane, the Court emphasized that under the public function test, “private activity becomes a public function only if that action has been traditionally the exclusive prerogative of the State.” [p. 10] More, it cited the Supreme Court decision in the case of Flagg Bros., Inc. v. Brooks to underscore that while many functions have been traditionally performed by governments, very few have been exclusively reserved for the State. In the Court’s views, Mr. Ebeid had failed to demonstrate that such “exclusivity” applied to Facebook’s regulation of speech on its platform.
Further, the Court determined that Mr. Ebeid had failed to state a UCRA claim for two reasons. First, it considered that the plaintiff had not adequately alleged that Facebook’s conduct was animated by discriminatory intent. Additionally, it noted his contention that Facebook’s actions arbitrarily undermined-rather than supported- his UCRA claim since no inference of discrimination could arise from assertions of arbitrariness. Second, the Court esteemed that, as held in the case of Tat Tohumculuk, AS v. H.J. Heinz Co., the application of the Unruh Act is limited to individuals within the jurisdiction of California who suffered harm therein. However, Mr. Ebeid was a resident of Arizona and never asserted that the alleged discrimination occurred while he was in California. Considering the previous, the Court considered that the plaintiff failed to state a UCRA claim.
The Court then analyzed Mr. Ebeid’s argument that the breach of contract and fraud claims were based on Facebook’s alleged failure to boost his posts despite the company notifying him that the content had been boosted. However, the Court considered that Mr. Ebeid’s contract claims failed for three reasons. First, as stated in the case of Young v. Facebook, a plaintiff must allege the specific provisions in the contract creating the obligation the defendant is said to have breached. Yet, Mr. Ebeid did not allege which contract Facebook allegedly breached, much less the breach of a specific provision. Second, Mr. Ebeid failed to prove that Facebook could not fulfill its contractual obligations. Assuming the complaint attempts to allege a breach of Facebook’s Self-Serve Ad Terms (the “SSAT”), which expressly reserved Facebook’s right to “reject or remove any ad for any reason” [p. 13] Third, the Court considered Mr. Ebeid’s breach of contract and fraud claims failed because he did not allege damages due to the violation or alleged misrepresentation.
The Court held that Mr. Ebeid failed to state a breach of the implied covenant of good faith claim since his contention was based on the allegation that Facebook did not boost his posts and interfered with his ability to grow and promote the ECL page and his campaign, and thus Facebook failed to exercise its contractual right to remove or disapprove any post in good faith. The Court considered that such theory could not support Mr. Ebeid’s breach of implied covenant claim for two reasons. First, he had not adequately alleged that Facebook’s actions were discriminatory. Second, as with the theory alleged in the complaint, he conceded that Facebook had the contractual right to remove or disapprove any post or ad at Facebook’s sole discretion.
Lastly, the Court deemed that Mr. Ebeid’s UCL claim relied solely upon the UCL’s “unlawful” prong. Thus, the Court considered the plaintiff’s UCL claim also dismissed by failing to state a predicate violation.
In light of the previous, the court dismissed Mr. Ebids’s complaint with prejudice partly due to failure to state a claim and, additionally, because the CDA immunized the defendant from liability. Concerning the claims dismissed without prejudice, the court provided the plaintiff until May 31, 2019, to file an amended complaint.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In holding that Facebook’s decision to remove the plaintiff’s posts undoubtedly fell under “publisher” conduct, the Court reaffirmed the Communications Decency Act protection of interactive platforms from liability for defamatory claims based on third-party content. Yet, by focusing on the contractual relationship between the plaintiff and Facebook, the Court failed to address if the content published by the user was in line with the standards on Freedom of Expression.
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