Suing the U.S. Attorney General Can’t Defeat Online Publisher Immunity



The non-profit American Freedom Defense Initiative (AFDI)—which, according to its website, opposes “global jihad and Islamic supremacism”—alleges that Facebook Inc., Twitter Inc. and Alphabet Inc.'s YouTube have repeatedly removed some of its posts from their platforms.  But rather than suing those companies, the AFDI went after U.S. Attorney General Loretta Lynch.

The companies are shielded from AFDI legal challenges because of protections they enjoy under federal law, namely Section 230 of the Communications Decency Act. The law gives online publishers leeway to post, edit and remove third-party content.

AFDI is another in a long list of people and organizations allegedly harmed as a result of online content who have tried but failed to overcome the broad protections of Section 230. But AFDI tried a different tack. It asked a federal court to stop Lynch from enforcing the law.

Section 230 enables the social media platforms to “engage in government-sanctioned discrimination and censorship of free speech,” the AFDI argued in its complaint.

The U.S. District Court for the District of Columbia, in dismissing the case, said the AFDI lacked standing to sue Lynch because she didn’t have the authority to enforce Section 230.  As a result, the AFDI’s alleged injury—the inability to express its views—couldn’t be traced to Lynch’s actions, the court said. 

The AFDI Nov. 14 appealed the district court’s dismissal to the U.S. Court of Appeals for the District of Columbia Circuit.  It remains to be seen how the D.C. Circuit will rule.

Plaintiffs in other cases have tried different ways to defeat the online publisher immunity defense in order to hold social media and online ad networks responsible for, among other things, extremist content, sex trafficking ads and allegedly defamatory content posted to their sites. But many of those efforts have fallen short.  

Plaintiffs have tried to sidestep Section 230 through, as one appellate court calls it, “creative pleading.” For example, in a case called Kimzey v. Yelp! Inc., the U.S. Court of Appeals for the Ninth Circuit held that Yelp’s star rating system didn’t transform third-party reviews into the site’s own content.  A federal district court in California, in Fields v. Twitter Inc., rejected a woman’s theory of liability based on Twitter’s provision of accounts to an extremist group, as opposed to Twitter’s publication of third-party propaganda.  

The AFDI court said that if the group is unhappy with the companies’ editorial decisions, it can sue them directly and try to defeat any Section 230 defense raised.  “How such litigation might fare is, of course, beyond this Court’s power to divine,” the court said.