The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


No U.S. discrimination claims against Facebook for blocking 'Sikhs For Justice' page in India


Sikh men wave banners at a protest organized by Sikhs For Justice at Washington's Lafayette Square Park in 2014. The protest was against Indian Prime Minister Narendra Modi, who has been accused of involvement in anti-Muslim riots in Gujarat in 2002. (Mladen Antonov/Agence France-Press via Getty Images)

The organization Sikhs for Justice (SFJ) has a Facebook page. Facebook allegedly blocked the page in India, and SFJ claims that it did so "on its own or on the behest of the Government of India," "because of discrimination against Plaintiff and Plaintiff's members on the grounds of race, religion, ancestry, and national origin."

SFJ sued under federal and state public-accommodation discrimination laws, but on Wednesday the U.S. Court of Appeals for the 9th Circuit rejected the goup's claim (Sikhs for Justice, Inc. v. Facebook, Inc.). The federal 47 U.S.C. § 230 statute, the court concluded, generally immunizes online service providers from legal liability for their decisions as publishers—and the decision about what to publish and what not to publish on Facebook is one such decision:

The Communications Decency Act (CDA) provides interactive computer service providers immunity from civil liability when the claim is premised upon the provider's role as "the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1), (c)(2). "This grant of immunity applies only if the interactive computer service provider is not also an 'information content provider,' which is defined as someone who is 'responsible, in whole or in part, for the creation or development of' the offending content."

Here, it is undisputed that Facebook is an interactive computer service provider. SFJ seeks to hold Facebook liable as a publisher for hosting, and later blocking, SFJ's online content. See Barnes v. Yahoo!, Inc. (9th Cir. 2009) ("removing content is something publishers do"). But SFJ, not Facebook, is the party solely responsible for creating and developing the content on SFJ's webpage. As such, Facebook cannot be deemed an "information content provider," and it is therefore entitled to the immunity conferred under § 230. Moreover, we have found no authority, and SFJ fails to cite any authority, holding that Title II of the Civil Rights Act of 1964 provides an exception to the immunity afforded to Facebook under the CDA.

Note, though, that the court didn't expressly discuss this, 47 U.S.C. § 230(c)(2) specifically protects online providers' right to block material that they find "objectionable":

No provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.