The Volokh Conspiracy

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Free Speech

Rep. Devin Nunes's $250M Lawsuit Against Twitter Will Go Nowhere

The defamation (and negligence) claims against Twiter are blocked by 47 U.S.C. § 230.


You can read the Complaint, and see a story about it here. Nunes is accusing political consultant Liz Mair and some unknown commenters of libeling him—a fact-intensive question on which I have no opinion—but is also suing Twitter for "negligence," which in this context seems to mean negligently failing to stop people from using Twitter to libel him:

As the private operator of a public square, Twitter owed Nunes a duty to exercise ordinary and reasonable care in the operation of its platform, so as not to cause harm to Nunes. Twitter breached its duty of reasonable care. Twitter used its platform and allowed its platform to be used by others as a means to defame Nunes. Twitter failed to take action to enforce its Terms and Rules in the face of known abusive behavior and failed to reasonably monitor and police the platform to ensure that rampant abuse and defamation was not occurring.

This failure to prevent him from being defamed, he says, caused $250 million of actual damages to him.

But any such state negligence law claim is preempted by 47 U.S.C. § 230, the federal statute that immunizes online service providers from liability for things that their users post, however defamatory those things might be. That's true whether the claim is brought as a defamation claim or as a negligence claim; service providers don't have a duty "to reasonably monitor and police the platform" (which is why, for instance, I don't have a duty to reasonably monitor and police the comments here).

Nunes argues that Twitter is discriminating in various ways against conservative speakers; but that is irrelevant to a § 230 defense. The statute was passed precisely to make clear that online service providers are immune from liability for others' speech even when they make editing choices about which speech to allow:

Congress enacted § 230 to remove the disincentives to self-regulation created by the Stratton Oakmont, Inc. v. Prodigy Servs. Co. decision. Under that court's holding, computer service providers who regulated the dissemination of offensive material on their services risked subjecting themselves to liability, because such regulation cast the service provider in the role of a publisher. Fearing that the specter of liability would therefore deter service providers from blocking and screening offensive material, Congress enacted § 230's broad immunity "to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material." 47 U.S.C. § 230(b)(4). In line with this purpose, § 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.

And later cases have made clear that § 230's preemption of "publisher liability" extends to supposed negligent failure to police:

The decisions construing 47 U.S.C. § 230 have declined invitations to exempt the "negligent publishing" of offensive or unlawful content from the protections afforded by 47 U.S.C. § 230. For example, in Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 967-68 (N.D.Ill.2009), the plaintiff, who served as the Sheriff of Cook County, sued Craigslist on the basis of allegations that the website's adult section constituted a public nuisance. After noting that "Sheriff Dart's complaint could be construed to allege 'negligent publishing,'" the district court rejected any contention that negligence sufficed to overcome the immunity granted by 47 U.S.C. § 230, noting that "[a] claim against an online service provider for negligently publishing harmful information created by its users treats the defendant as the 'publisher' of that information." As a result, the reported decisions construing 47 U.S.C. § 230 have treated the relevant statutory language as creating a broad exemption from liability even when the substantive facts underlying a plaintiff's claim are compelling. See, e.g., M.A., 809 F.Supp.2d 1041 (holding that immunity was available pursuant to 47 U.S.C. § 230 despite the fact that a minor was subjected to sex trafficking as the result of ads placed on defendant's website) and Barnes, 570 F.3d at 1098 (holding that immunity was available pursuant to 47 U.S.C. § 230 based upon a website's failure to remove defamatory postings despite the fact that the "case stems from a dangerous, cruel, and highly indecent use of the internet for the apparent purpose of revenge").

Section 230 does not extend, of course, to people's dissemination of their own speech (which is why the case against Mair and the other individual defendants isn't preempted). And it doesn't extend to platforms' creation and development of tortious speech (for instance, if a platform expressly invites users to post commercial ads that indicate discriminatory preferences, by asking them to fill in special fields designed expressly to indicate such preferences). But Twitter simply provides a way for people to post whatever they want; and, again, its choice to exclude some material based on political viewpoint or anything else doesn't make them a creator or developer of the material that they do allow.

I've occasionally heard arguments that Twitter ought to be regulated as a sort of public utility or common carrier, so that speech on Twitter is protected against restriction by Twitt. Whether Congress could constitutionally impose such a restriction on Twitter or other such platforms is an interesting question. But Congress hasn't done so; quite the contrary: It has provided Twitter and similar services with specific immunity even when they regulate speech on their services.

Nunes's negligence/defamation claim against Twitter, then, is a sure loser; more shortly on Nunes's "insulting words" claim.