The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Lakin v. Facebook, Inc., filed last week in New York trial court, is quite a remarkable lawsuit. Facebook, the plaintiffs say, is being used by Palestinian groups "to incite violent attacks against Israeli citizens." The plaintiffs argue that Facebook has a legal obligation to police this material, and that a court should order Facebook to do so.
This case is going nowhere, for two reasons.
First, the First Amendment. Part of the supposed basis for the plaintiffs' proposed injunction consists of Israeli laws that restrict speech—for instance, laws that "criminally prohibit the publication of praise, support, calls for support for terrorist organizations." But any such prohibition would be clearly unconstitutionally overbroad under First Amendment law. American courts don't enforce foreign speech restrictions that would be inconsistent with the First Amendment.
Indeed, even the plaintiffs' narrower demand for an order that Facebook "immediately remove all pages, groups and posts containing incitement to murder Jews" is likely foreclosed by the First Amendment. Under American law, constitutionally unprotected "incitement" consists solely of situations in which speakers have the purpose to and are likely to produce imminent criminal conduct; and "imminent" is understood to mean happening in minutes, hours or perhaps days, rather than at "some indefinite future time." Many of the examples that the complaint offers thus wouldn't even qualify as "incitement" under U.S. law. But even if in some situations Facebook users are trying to incite imminent and likely criminal conduct, Facebook itself isn't doing so, because it lacks the purpose of producing such conduct. It can no more be enjoined from distributing such conduct than an impartial cable news company can be enjoined from distributing live video of incitement.
Second, and even more clear, U.S. law—47 U.S.C. § 230—prevents Internet service and content providers from being held liable for speech by their users. Companies don't have to be censors of their users' posts if they don't want to. Google isn't liable for allegedly defamatory material that it links to, and thus doesn't have to monitor the sites it indexes for alleged libel. I'm not liable for allegedly defamatory comments that you post. Facebook isn't liable for allegedly defamatory, privacy-invading or inciting speech that its users post.
The complaint tries to avoid this by arguing that
Facebook actively makes introductions between those who incite to murder and mayhem, and those who are interested in committing murder and mayhem. By facilitating connections between and among terrorist organizations and people who incite, encourage, and train people to commit terrorism, and individuals and groups who have expressed through their Facebook pages that they support or are inclined to commit terrorism, defendant Facebook actively assists the inciters to find people who are interested in their hateful messages of fighting words. Figuratively speaking, Facebook is introducing the people who scream "fire" in a crowded theater to arsonists, or jealous spouses to professional hit men. Just as "fighting words" are not protected speech, Facebook's conduct is indefensible.
But this doesn't avoid the § 230 defense. Facebook, like other content and service providers, provides a place where people can post a wide range of speech, good or bad. It equally facilitates connections among law-abiding users and among criminals. It "assists the inciters to find people who are interested in their hateful messages of fighting words" (a misuse of the legal term "fighting words," by the way, which means something very different) only in the sense that a vast range of Internet companies "assist" people to find a vast range of things. Google assists people in finding bad material alongside the good. It has no obligation under U.S. law to censor its search results. Likewise, Facebook assists people in finding like-minded people for bad purposes alongside the good; it likewise has no obligation under U.S. law to censor its content.
And this is true even if some material posted on the site is "not protected speech." Section 230 protects Internet content and service providers from liability for their users' unprotected speech. (It wouldn't be needed to protect from liability for users' protected speech, since no one—neither the users nor the providers—would be liable for the protected speech in the first place.)
Plaintiffs also argue that "hate speech, calls to murder people based on their religion, and incitement to commit terrorist acts are all outside the realm of 'political discourse … cultural development, and … intellectual activity,' § 230(a)(3), and are plainly within the realm of 'obscenity, stalking, and harassment,' § 230(b)(5)." But there is no First Amendment exception for "hate speech." And § 230 doesn't limit its protection to "political discourse," "cultural development" and "intellectual activity," nor does it exclude from protection providers whose sites end up containing user-posted "obscenity, stalking, and harassment."
The quoted passages from § 230 are from the language Congress included in its general findings and statements of policy. One of the findings was that "the Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." That is not a constraint on § 230 (unsurprising, given how vague those terms are). And one of the statements of policy was that "it is the policy of the United States" "to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer." Section 230 deals with providers' immunity from civil liability, not with enforcement of criminal laws. Nothing in the portions of § 230 that define the scope of congressionally granted immunity limits that immunity the way the plaintiffs allege.
We've heard a lot of talk about how sharia law is coming to American courts, which will use the foreign law to suppress American constitutional rights. That hasn't really happened in any substantial way (see here and here), though I've certainly been glad to speak out in the few situations in which courts have improperly restricted free speech or other rights based on sharia-related claims. But here we have an attempt to do exactly what we've been warned against—except not with sharia.