Even As Grifters Insist Otherwise, Courts Know That Social Media Are Not State Actors Because Of Section 230
from the stop-it dept
Over the last few years we’ve heard a lot of nonsense claiming that Section 230 somehow magically turns social media into state actors. This idea, pushed heavily by disgraced law professor Jed Rubenfeld has not fared well in court. As law professor Eric Goldman highlights, multiple courts have been easily rejecting these claims. Notably, they’re mostly citing the failed lawsuit from PragerU that insisted that a very light touch moderation (filtering out a very small percentage of their videos from the even smaller percentage of users who turn on “restricted mode”) was a form of censorship. The 9th Circuit pointed out that the 1st Amendment says otherwise (which is amusing since Prager himself pretends to be a big supporter of the 1st Amendment).
Either way, three recent cases claiming that social media were state actors all clearly and easily rejected those claims. The first two of these were pro se lawsuits that were mad about social media sites in semi-coherent complaints that the courts construed as liberally as possible to try to find any sort of legitimate claim, and the courts (rightly) found that those claims were barred because the social media sites (YouTube and LinkedIn) were clearly not state actors.
First up, a district court in the Eastern District of Pennsylvania, which made short work of a lawsuit against YouTube filed by a pro-se plaintiff with a variety of different claims about harassment and hacking (that were somehow YouTube’s fault?) leading to the suggestion (the complaint is not particularly clear) of a civil rights violation. The court points out that YouTube is not a state actor and thus there’s no possible claim here:
Based on the Complaintâ€™s allegations, it appears the named Defendants â€“ a
private social media company and its legal department â€“ are not subject to liability
under Section 1983. Cf. Prager Univ. v. Google LLC, 951 F.3d 991, 999 (9th Cir. 2020)
(affirming the dismissal of a First Amendment claim because YouTube was a private
entity and not a state actor); see also Rutenburg v. Twitter, Inc., No. 21-0548, 2021 WL
1338958, at *2 (N.D. Cal. Apr. 9, 2021) (â€œFederal courts have uniformly rejected
attempts to treat similar social media companies [such as Twitter, Facebook, YouTube,
and Google] as state actors under Section 1983.â€) (collecting cases). Sescey does not
allege Defendants are state actors or that they had any connection to a state, county, or
local governmental entity. Her Complaint does not allege any facts to show a â€œclose
nexusâ€ between the private behavior of YouTube and its legal department and the state
itself such that the challenged action here can fairly be treated as an action of the state.
Leshko, 423 F.3d at 339. None of Sesceyâ€™s allegations support an inference that
Defendants are anything other than a privately-run social media company and its
internal legal department.
The next one, filed against LinkedIn, requires barely more than a page to dismiss:
The district court properly dismissed Perezâ€™s action because Perez failed to
allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338,
341-42 (9th Cir. 2010) (although pro se pleadings are liberally construed, a
plaintiff must allege facts sufficient to state a plausible claim); see also Prager U.
v. Google LLC, 951 F.3d 991, 996-97 (9th Cir. 2020) (internet media websites are
not government actors under the First Amendment);
The other case, also highlighted by Eric Goldman, isn’t a pro-se filing like the other two, but at least marginally (in the most marginal of senses) more serious. It was filed on behalf of Cameron Atkinson against Facebook (though the caption is now updated to Meta!) who claims that Facebook broke the law in “censoring” him. The details of the complaint are… really something.
Like many of his fellow citizens and students of the law, the Plaintiff,
Cameron L. Atkinson is a thinker who, regardless of whether he is right or wrong, loves
to share his thoughts and hear the thoughts of others. He regularly posts on Facebook
about political and legal developments with the same civility that he would use in the
courtroom or the classroom, seeking to engage in debate with the community of fellow
law students and other friends whose respect he has gained.
The Plaintiff, Cameron L. Atkinson, is also an inquiring man who rarely
rushes to judgment, often choosing to find out for himself before condemning someone.
Consequently, when Cameron L. Atkinson learned from friends that
Facebook was censoring conservatives’ posts that mentioned the name of Eric
Ciaramella, the alleged Ukranian whistleblower who has provided the impetus for the
pending impeachment proceedings against President Donald Trump, he decided to test
the scope of Facebook’s censorship himself.
Cameron L. Atkinson’s first post occurred on the morning of November 11,
2019. He published a post on Facebook that read “Test post: Eric Ciaramella is a hero
for blowing the whistle on the Trump administration’s treason with Ukraine.” See Exhibit
Approximately four minutes later, Cameron L. Atkinson published a second
test post on Facebook that read “Test post 2: Eric Ciaramella is a dirty lying rat for trying
to take down the Trump administration.” See Exhibit 1.
Cameron L. Atkinson’s object in publishing these posts was to see if
Facebook would censor one post, but not the other.
Within 5 hours, Facebook removed both of Cameron L. Atkinson’s posts
with no warning or notification.
After learning of Facebook’s censorship, Cameron L. Atkinson published a
third post that read as follows:
I have conflicting thoughts about the naming of Eric Ciaramella, the alleged
Ukraine whistleblower. Tattling in the dark shadows destroys public
confidence in a matter of serious public interest. On the other hand, the
vitriolic nature of our society may very well raise concerns for his safety.
However, it may also end up protecting his well-being. Regardless, I think
that people should be open to debating the merits of this serious public
See Exhibit 2.
Again, less than 5 hours later, Facebook removed Cameron L. Atkinson’s
third post without notifying him or warning him
The complaint alleged a bunch of violations of things that do not exist:
The Plaintiff claims a violation of his rights under the First
Amendment to the United States Constitution, violations of the Communications Decency
Act, statutory fraud, theft, a breach of the implied warranty of fair dealing, and violations
of the Connecticut Unfair Trade Practices Act (CUPTA)
The case was transferred from Connecticut to California under
Facebook’s Meta’s terms of service, and then tossed out easily by the district court. The appeals court upholds the lower court ruling, but as Goldman notes, the ruling is a bit sloppy (and also they did it as non-precedential for unclear reasons).
But, as the court points out, the 1st Amendment claims are ridiculous because Facebook (shut up, it’s not “Meta”) is not a state actor:
The district court properly dismissed Atkinsonâ€™s First Amendment claim
because he did not allege sufficient facts to infer that Meta Platforms is a
Unless certain exceptions apply, the First Amendment only
restricts government action. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct.
1921, 1928 (2019) (enumerating exceptions). Dismissal is proper when a
complaint lacks â€œa cognizable legal theoryâ€ or â€œsufficient well-pleaded,
nonconclusory factual allegationsâ€ to state a plausible claim for relief….
Atkinson does not allege plausibly that the federal government â€œcompel[led]
[Meta Platforms] to take a particular action,â€ Halleck, 139 S. Ct. at 1928, or
â€œexercised coercive power,â€ Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
Allegations of federal coercion do not support the deprivation under color of state
law that Atkinson pleaded. See 42 U.S.C. Â§ 1983; Heineke v. Santa Clara Univ.,
965 F.3d 1009, 1013 n.3 (9th Cir. 2020) (finding that private actors are only
subject to Â§ 1983 liability under a state action theory). Even if such facts could
support his claim, Atkinson does not allege federal coercion sufficiently. Instead,
his allegations cast Meta Platformsâ€™ decision to adopt community standards as a
self-interested business decision.
Atkinson also does not plead sufficient facts to infer that Meta Platforms
acted jointly with state governments. Halleck, 139 S. Ct. at 1928. We need not
accept as true factual allegations that Atkinsonâ€™s submitted exhibit contradicts.
Gonzalez v. Planned Parenthood of L.A., 759 F.3d 1112, 1115 (9th Cir. 2014). To
the extent that Atkinsonâ€™s allegations are not contradicted, they still do not reflect
joint action. Absent more, the fact that state officials responded to Meta Platformsâ€™
unsolicited inquiries does not plausibly allege such a degree of â€œinterdependence . .
. that [the state] must be recognized as a joint participantâ€ in Meta Platformsâ€™
editorial decisions. Tsao v. Desert Place, Inc., 698 F.3d 1128, 1140 (9th Cir.
2012) (citation omitted). Atkinson does not offer other facts that would make a
joint action claim plausible, such as an agreement between state governments and
Meta Platforms; state participation in Meta Platformsâ€™ corporate governance;
financial ties between state governments and Meta Platforms; or Meta Platformsâ€™
regulation of state activities. Cf. Brentwood v. Tenn. Secondary Sch. Athletic
Assâ€™n, 531 U.S. 288, 298â€“302 (2001) (explaining state action existed under such
circumstances). We cannot infer that state officials â€œdominate[d]â€ Meta Platformsâ€™
decision making from Atkinsonâ€™s allegations.
Then there’s the question, pushed by Rubenfeld and other very foolish people, that Section 230 magically turns websites into state actors. The court says “nuh uh” without much elaboration:
Finally, Section 230 of the Communications Decency Act does not
independently transform Meta Platforms into a government actor for First
Basically, that line of argument is so dumb it doesn’t even require any analysis other than saying “no, that’s not true.”
As for “violating Section 230,” well, that’s not a thing.
Section 230 does not explicitly create a private right to sue, see 47 U.S.C.
Â§ 230, nor do its â€œlanguage, structure, context, [or] legislative historyâ€ implicitly
reflect any congressional intent to establish one. Lilâ€™ Man in the Boat, Inc. v. City
and County of San Francisco, 5 F.4th 952, 958 (9th Cir. 2021). Section 230 is not
â€œphrased in terms of [individual] persons benefited.â€ …
It’s somewhat telling how easily and quickly courts are dumping these claims, at the same time that the usual grifters and nonsense-peddlers continue to insist that there’s a reasonable legal argument that social media are somehow state actors. They are not and no one should take seriously anyone who claims otherwise.