Facebook Sued For Not Preventing A Bunch A White Guys With Guns From Traveling To A Protest To Shoot People

from the idiots-jointly-and-severally-responsible-for-their-idiocy dept

Facebook is being sued again for its involvement in another act of gun violence. [half a h/t to MediaPost, which covered the lawsuit but apparently couldn't bring itself to post the actual filing]

Following the shooting of a black man by Kenosha, Wisconsin police officers, the city erupted in protests and riots. For no apparent reason, a bunch of self-described militias and their members decided they could protect the city from rioters. Organizing on Facebook, the "Kenosha Guard" group members decided they could be a law unto themselves and decided to strap up and show up, informing the local PD they had 3,000 "RSVPs" representing a bunch of willing and possibly able "militia" and/or "boogaloo" boys locked-and-loaded.

Somehow, Antioch, Illinois resident Kyle Rittenhouse was able to talk his mom into driving him and his guns into the heart of the civil unrest. The 17-year-old shot three protesters, killing two of them during an altercation. Rittenhouse then walked past Kenosha cops back to his mom's car and went home. He turned himself in to Illinois law enforcement and is now facing multiple charges, including first-degree intentional homicide.

Facebook's involvement is limited to the pages and groups it hosted. The "Kenosha Guard" page and its call for violence against protesters was reported nearly 400 times. Facebook refused to take it down. At one point, it claimed it had removed it but that statement was later shown to be false. The "call to arms" post had been removed voluntarily by its creator, Kevin Mathewson, shortly after the shooting in Kenosha. (Mathewson and Rittenhouse are also being sued.) Facebook CEO Mark Zuckerberg later called this failure to remove the reported page an "operational mistake."

When tragedies happen, lawsuits follow. But just because obvious and ample damage has been inflicted on the plaintiffs (the lead plaintiff's boyfriend was killed by Kyle Rittenhouse) doesn't mean there's recourse available, unfortunately. Arguing that Facebook is liable for violence perpetrated by so-called "Kenosha Guard" members (and remember, Rittenhouse was not a member of this Facebook group) is a non-starter. Section 230 shields Facebook from being held responsible for third-party content and its failure to remove a page users complained about isn't evidence of negligence. (And the decision to list the "Boogaloo Bois" as a defendant is every bit as ridiculous as one cop's attempt to sue "Black Lives Matter" and a Twitter hashtag.)

But those are the arguments being made in this lawsuit [PDF].

With regard to Defendant Facebook, there were over 400 reports of the violent rhetoric taking place on the Kenosha Guard event page, establishing Facebook had ample knowledge of the conspiracy. Removing this page from its platform would have greatly aided in preventing the organization and popularization of the militias. Perhaps, if Facebook had taken down the page in accordance with its policies, Rittenhouse would never have traveled to Kenosha. Nonetheless, Facebook neglected to prevent the furtherance of the conspiracy, in violation of its duties enumerated in 42 U.S.C. § 1986.

"Perhaps" is not a great legal argument -- not when you're trying to hold a content platform liable for the actions of site users who may or may not have actually been involved with the militia presence in Kenosha. Not only that, there still seems to be no link between Kyle Rittenhouse and the oft-reported "Kenosha Guard" page or its "Call to Arms" event.

This same theory is pursued under state law, where it might be a little more likely to survive a motion to dismiss.

In violation of Wisc. Stat. § 895.045 and the common law standard set forth in Wisconsin case law, Facebook breached its duty to stop the violent and terroristic threats that were made using its tools and platform. A duty consists of “the obligation of due care to refrain from any act which will cause foreseeable harm to others . . . . A defendant’s duty is established when it can be said that it was foreseeable that [the] act or omission to act may cause harm to someone.” Coffey v. Milwaukee, 74 Wis. 2d 526, 536 (1976) (internal citations omitted).

[...]

But for Facebook’s failure to respond to the complaints about the Kenosha Guard’s call to Arms and the co-conspirators’ violent rhetoric, the Kenosha Guard would not have been able to amplify its message and summon armed, untrained militia members to assault and terrorize Plaintiffs. As a result of this inaction, Facebook is liable for the harm its negligence caused.

This still requires the plaintiffs to prove Facebook was at least as negligent as those who actually posted violent rhetoric or engaged in violent acts or intimidation because of what they read on the "Kenosha Guard" page. But even a very charitable reading of the law would place most of the liability on those who engaged in the "call to arms" and those who responded.

Social media services have been sued under a variety of legal theories in hopes of holding them accountable for violent actions taken by their users. In almost every case, the social media services have prevailed. For better or worse, the legal obligations of platforms are minimal. Clearly illegal content must be removed. Everything else is at the platforms' discretion. Good faith moderation and bad faith moderation efforts are the same in the eyes of the law and the law -- primarily Section 230 of the CDA -- says platforms can't be sued because some users asked people to bring guns to a protest. And it can't be sued when one user does what's requested and kills someone.

This isn't to say Facebook should have ignored the posting more than 400 times. It's just saying there's a lot of legal distance to travel between Facebook being terrible at moderation and Facebook being responsible for a bunch of white dudes with guns doing stupid and harmful things.

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Filed Under: content moderation, intermediary liability, kenosha, kenosha guard, kyle rittenhouse, police, protests, section 230, wisconsin
Companies: facebook


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  • identicon
    Anonymous Coward, 28 Sep 2020 @ 11:08am

    Why aren't the cops being sued for allowing a dangerous situation to occur? The old west was better about gun control, not allowing them to be carried in town.

    Also what in all the living hells wad the mother thinking?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Sep 2020 @ 11:17am

      Re:

      Stupid looks good on you... it looks so natural... as if you were born that way.

      The fact is, you can sue cops for something the city allowed.

      reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 28 Sep 2020 @ 11:33am

      Re:

      The cops don't have a bazillion $$$$ in the bank.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Sep 2020 @ 1:50pm

      Re:

      Cops have no duty to protect for one. It would be a fast way to get lawyers fees.

      And the old west is a bad example for gun control for several reasons - first of which is that the era was known for a widespread disregard of civil rights,corrupt selective enforcement such that there was little difference between gangster and lawman as accountability and reinforcements were both so distant and both were at times addressed by armed posses who themselves had no regard for rights. Regardless of the merits of gun control policies it is kind of like asking "Why can't we make the trains run on time like Mussolini?" - it was a horrible time in general and didn't work well for the one thing it was supposed to be good for.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Sep 2020 @ 1:58pm

        Re: Re:

        If people of colour had turned openly displaying long guns, how long would the police have allowed them tolive?

        reply to this | link to this | view in chronology ]

      • icon
        rangda (profile), 28 Sep 2020 @ 5:23pm

        Re: Re:

        "the era was known for a widespread disregard of civil rights,corrupt selective enforcement such that there was little difference between gangster and lawman"

        How is this any different from now?

        reply to this | link to this | view in chronology ]

        • icon
          Bergman (profile), 3 Oct 2020 @ 6:54am

          Re: Re: Re:

          This illustrates a classic problem people have. That many are unaware they have. It's often dismissed under the "first world problems" tag.

          While any injustice is bad, some injustices are worse than others. There's a strong tendency to assume that what we have now is just as bad as what people had in the past, and it's just not true.

          This comment by rangda illustrates it nicely. The difference between then and now is that then it was multiple orders of magnitude worse than it is now. There was a time when casual statements about how jews or blacks being evil or dirty or otherwise subhuman would be met by nods and noises of agreement in public, rather than the shocked horror such statements meet today (outside of fringe groups).

          Now we have bigotry of various flavors, but most of the bigots are in the minority. They keep silent outside of their fringe groups because they know the rest of us not only won't agree, we simply won't tolerate their hatred.

          But back then, those same people who nodded in agreement would also look the other way or even help out when it came to attacks on people for their skin color or religion or whatever. Not just a few individuals here and there, but the majority of the general public.

          The war against bigotry is ongoing, but it used to be a lot worse than it is now.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 3 Oct 2020 @ 4:57pm

            Re: Re: Re: Re:

            Now we have bigotry of various flavors, but most of the bigots are in the minority. They keep silent outside of their fringe groups because they know the rest of us not only won't agree, we simply won't tolerate their hatred.

            If this were completely true, we wouldn't have protests in multiple cities against police violence, especially against blacks. While it may be true that today's problems are not as bad as they were during the time period in question, the bigots definitely aren't "hiding" their opinions (in general, I am sure some are).

            reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 29 Sep 2020 @ 2:32am

        Re: Re:

        "Regardless of the merits of gun control policies it is kind of like asking "Why can't we make the trains run on time like Mussolini?" - it was a horrible time in general and didn't work well for the one thing it was supposed to be good for."

        Concur. The issue isn't, and never really has been guns. It's the attitude of society and law enforcement which matters.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 28 Sep 2020 @ 11:10am

    Maybe not so clear cut

    Facebook's involvement is limited to the pages and groups it hosted. The "Kenosha Guard" page and its call for violence against protesters was reported nearly 400 times. Facebook refused to take it down. At one point, it claimed it had removed it but that statement was later shown to be false.

    Arguing that Facebook was negligent and therefore liable because they didn't take the club for thugs and/or killers page down might be a non-starter normally, but if they actually did claim that they had taken it down that seems like something that might come back to bite them, as if memory serves one of the cases in the past where 230 was found not to apply was because the platform promised to do something but then didn't.

    reply to this | link to this | view in chronology ]

    • icon
      Koby (profile), 28 Sep 2020 @ 11:57am

      Re: Maybe not so clear cut

      but if they actually did claim that they had taken it down that seems like something that might come back to bite them, as if memory serves one of the cases in the past where 230 was found not to apply was because the platform promised to do something but then didn't.

      True, and so their main defense at this point might be the timing of when this claim did occur. Unfortunately, I didn't see anything in the linked articles about the date of when the claim happened. Still, it might be a costly lesson for FB to learn: never apologize to the mob.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 28 Sep 2020 @ 12:08pm

      Re: Maybe not so clear cut

      The case you're thinking of is Barnes v. Yahoo, but I don't think it applies here. In that case, an employee directly promised to Barnes that she would remove the content in question -- and the court found that to be promissory estoppel that effectively overruled the 230 immunity.

      Here, Facebook falsely saying it had taken down the page was not a promise to anyone.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 28 Sep 2020 @ 6:57pm

        Re: Re: Maybe not so clear cut

        Ah, that would make a difference, in that case I think you're right and that it wouldn't really apply here.

        reply to this | link to this | view in chronology ]

        • icon
          John Roddy (profile), 28 Sep 2020 @ 7:34pm

          Re: Re: Re: Maybe not so clear cut

          Not to mention the follow-up in Barnes was that the case got immediately thrown out even after § 230 immunity was denied. The entire theory of liability was fundamentally flawed from the start. And the cases that have built on the precedent ever since have only made it less and less applicable.

          This seems more in-line with the (comparatively) newer "material support to terrorists" lawsuits than anything else. I was actually kinda surprised to not see a signature from 1-800-LAW-FIRM or Excolo at the bottom.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Sep 2020 @ 11:41am

    So I can not think of much good to say about Facebook. However if SCTUS has ruled that cops have no duty of care to save civilians, I can't see how a third party communication service can be held to have it either

    reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 28 Sep 2020 @ 2:07pm

    But remember folks, Facebook have a liberal bias and are run by leftists who work night and day to crush the right and absolutely aren't more than happy to serve as a petri dish for violent far right groups and conspiracy theorists because there's money to be made, in spite of all the evidence that they are.

    reply to this | link to this | view in chronology ]

  • icon
    tom (profile), 28 Sep 2020 @ 2:08pm

    This suit has the hallmarks of sue everyone with money and see if something lasts long enough to encourage a settlement. Regardless of the legal merits of the case, FB doesn't want a case surviving to trial. FB vs Grieving Family has a good chance of a jury win for Grieving Family.

    reply to this | link to this | view in chronology ]

  • icon
    BernardoVerda (profile), 28 Sep 2020 @ 4:31pm

    The 17-year-old shot three protesters, killing two of them during an altercation.

    Am I mis-remembering?
    I thought that was two separate incidents, and he killed one person on each occasion?

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 29 Sep 2020 @ 12:03am

      Re:

      Depends on how you define "incident". My understanding is that he killed one guy, then fled the scene. He was then caught by people who tried confronting/apprehending him for the first shooting, but then he shot and killed again. Legally, these might count as separate incidents due to the gap, but they were part of the same thing.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Sep 2020 @ 9:10pm

    Imagine Colt or Browning being sued because they didn't prevent people getting shot with their guns.

    reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 29 Sep 2020 @ 6:42am

      Re:

      It's the phone system that is the most obvious parallel to me.. Why don't you see everyone blaming the phone companies for anything anyone talks about on the phone?

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 29 Sep 2020 @ 7:59am

        Re: Re:

        "Why don't you see everyone blaming the phone companies for anything anyone talks about on the phone?"

        I'm not aware of the phone company being held to task for what people discussed over their lines...
        ...but there's plenty of historical precedent regarding messenger services in general, such as the post office. What emerged from that debate, of course, was the concept that shooting the messenger is never a good idea.

        Yet put it online and suddenly we have to re-do a thousand years worth of arguments which will end up with messenger immunity being a necessary part of any civil society.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 29 Sep 2020 @ 8:08am

          That's why I get both frustrated and amused anyone tries to bring up the '230 is giving special treatment to online platforms!' argument, because granting equal treatment is in no way giving someone special treatment and all 230 does is make clear that the same protections against liability that offline platforms and services have enjoyed basically forever also apply to online ones.

          reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 29 Sep 2020 @ 6:37am

    damned if you do

    "This isn't to say Facebook should have ignored the posting more than 400 times"

    If they had taken it down it would just be on the "anti conservative bias" lawsuit pile instead of the "everything people discuss on facebook is your fault" pile.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 29 Sep 2020 @ 8:01am

      Re: damned if you do

      They're already being blamed for that though, and I'm pretty sure the PR black eye from taking down a page for armed goons would be rather less than one that's resulted in them being blamed for facilitating a murderer.

      reply to this | link to this | view in chronology ]

      • icon
        crade (profile), 29 Sep 2020 @ 2:08pm

        Re: Re: damned if you do

        They are already being blamed for both taking too much down and not taking enough down.. I'm sure if they had a crystal ball at the time they would have thrown this one on the other pile

        reply to this | link to this | view in chronology ]


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