If Facebook Is Immunized From User Content, What About the "Shitty Media Men" List Creator?

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A few weeks ago, a Facebook user posted a doctored video of House Speaker Nancy Pelosi stumbling over her words and appearing to be either drunk or crazy. As esteemed tech journalist Kara Swisher saw it, Facebook's decision to keep up that edited video was ridiculous and irresponsible. What's more, as she wrote in a New York Times opinion piece, the lack of action on Facebook's part could be partly explained by the law.

"No other media could get away with spreading anything like this because they lack the immunity protection that Facebook and other tech companies enjoy under Section 230 of the Communications Decency Act," wrote Swisher. "Section 230 was intended to spur innovation and encourage start-ups. Now it’s a shield to protect behemoths from any sensible rules."

In the past few months, upon all sorts of hateful content appearing on social media sites, and companies like Facebook and YouTube drawing confusing lines in the sand, Section 230 has become a favored target to explain the evils of digital modernity. The law may have been enacted in the mid-1990s partly to encourage content moderation (after Stratton Oakmont v. Prodigy, a 1995 ruling of special interest to fans of The Wolf of Wall Street), but such motivation is almost lost these days. As Missouri Senator Josh Hawley, who is now proposing changing the law, tweeted Thursday, "[T]he industry’s biggest, monopoly platforms can use 230 to stifle competition, censor speech, and invade privacy."

Swisher was wrong with one of her implications.

In fact, media companies including The New York Times take advantage of Section 230 to shield themselves from false and deceptive third-party content every single day. If Section 230 went away, no news site would dare have a reader comment section.

And when Hawley says that some companies are using 230 to censor speech, he's ignoring those using 230 to save speech.

Provocatively, it's no longer just companies using Facebook's favorite law to advantage themselves. Now, at least one individual is attempting to raise 230 immunity in a legal fight with implications for the #metoo movement. Her name is Moira Donegan, the creator of the "Shitty Media Men" spreadsheet, which allowed women to anonymously post sexual abuse accusations against others.

Stephen Elliott, a widely published author and director of About Cherry and Happy Baby, is suing Donegan and 30 anonymous women for defamation over the anonymous suggestion in a spreadsheet that he is a rapist. It's possible, maybe even likely, that his lawsuit will fail due to the author's struggle to articulate actual malice on Donegan's part, but he's giving it a go. In an amended complaint, Elliott asserts alternative theories on her culpability: Donegan allegedly fabricated the rape allegation against Elliott herself or she recklessly published accusations from a stranger she didn't know or she contributed to the circulation of the spreadsheet or she was at least responsible for taking that allegation of rape and highlighting Elliott's entry in red.

U.S. District Court Judge Lashann Dearcy Hall could tackle the issues raised here on fairly traditional defamation lines, and if so, there might be no need to even reach the Section 230 debate that has come up, but just maybe, the case could provide a vehicle for not only exploring the novel issue of whether individuals can be considered "interactive service providers" under the Communications Decency Act, but also some of the more contentious and confusing aspects tripping up lawmakers who are currently sounding off about Section 230.

First, can an individual like Donegan be deemed a service provider?

Here's what Elliott's attorney Andrew Miltenberg wrote in a court brief last week:

"[I]f Section 230 immunized individuals who create an interactive Internet document and then personally post onto it unlawful content learned from a third party, the results would be absurd," he stated. "Suppose an individual wanted knowingly and unlawfully to publish a false and malicious rumor about A that she had heard from B; or to disclose true but private facts about C that she’d heard from D; or to publish a trade secret confided to her by E; or to identify the real name of a covert agent revealed to her by F. These acts would all be unlawful, yet on Defendant’s argument, she could do any of them and gain Section 230 immunity through the simple expedient of creating an online interactive spreadsheet and then posting the unlawful content herself. Nothing in the text of Section 230 remotely supports so absurd a conclusion."

As Miltenberg sees it, Donegan is "plainly the content provider," not the service provider.

The CDA may not make a distinction between "publisher" and "platform," as has been the subject of some discussion, and folks like Sen. Ted Cruz may go too far by suggesting that a digital platform has to remain neutral before gaining Section 230 immunity. Nevertheless, thanks to some quirky opinions from the past decade — namely, Fair Housing Council of San Fernando Valley v. Roommates.com (2012), which dealt with a website alleged to have violated the anti-discrimination provisions of the Fair Housing Act, and Fed. Trade Comm’n v. LeadClick Media (2016), which involved fake news sites advertising weight loss products — there's at least some legal debate over the outer perimeters of these topics.

Pointing to those decisions, Elliott's attorney makes the proposition that immunity is afforded only to an interactive service provider acting as a "neutral intermediary" for others' content and not to content providers. Additionally, he argues that such providers forfeit their immunity if through their website’s design, or through its headers, or through personal communications with other people, they specifically encourage unlawful content.

"Publishing false, unverified and unsubstantiated 'rumors' of defamatory sexual misconduct is of course unlawful; it is, and has long been, libel per se," he adds.

In response, Donegan's attorney Roberta Kaplan argues in a brief filed Thursday (read here) that her client doesn't become a content provider simply because she allegedly published a falsehood or built a spreadsheet in a matter that would encourage illegality.

"'[E]ncouragement' that consists of creating an online forum — even one in which unlawful content could be posted — does not transform a publisher into an information content provider," she states. "For that to occur, the publisher must personally direct illegal statements, see Fed. Trade Comm’n v. LeadClick Media, LLC, 838 F.3d 158, 174 (2d Cir. 2016), or require the provision of information that necessarily leads to illegality, see Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1167 (9th Cir. 2008). This case comes nowhere close to that. Nothing on the Spreadsheet necessarily generated defamatory statements; indeed, its stated purpose would be achieved only through truthful entries."

Kaplan adds that highlighting the rape allegation in red would be an exercise in "a traditional editorial function — and thus remains shielded by the CDA."

Oral argument has yet to be scheduled.