The following are your key facts for our trial. Facts labeled “our facts” are fictious, all other facts presented are real. We are assuming that a trial court has found both that FB is not protected by Section 230. If you are the plaintiff, your task in this trial is to convince an appeals court that FB SHOULD be protected by Section 230.
Our Fact: Facebook is a corporation that runs a number of very large social networks. They have
been allowed to purchase all other affinity organized social networks, there is no competition in
this space. To maximize ad sales and minimize push back, Facebook produced an algorithm that
would produce the most toxic, interesting stew of ideas possible, often by disabling their own
protective systems which employees warned was: reckless and a political power-play. In the
aftermath of their own algorithm producing instability they allowed mobs to organize and stage a murderous riot. In this case, Crawford has won a judgement against Facebook in district court
that they should be liable for wrongful death from the murder of their adult child in the riot, and that their adult child was targeted on the basis of information that was defamation perse.
Facebook has appealed.
Our Fact: information released from Facebook confirms that high level executives knew about the danger posed by the riot, knew that they were reckless, and regularly manipulated the flow of information onto their service to meet certain political goals.
The text of section 230: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
230(f) defines interactive computer service as: (2) Interactive computer service The term
“interactive computer service” means any information service, system, or access software
provider that provides or enables computer access by multiple users to a computer server,
including specifically a service or system that provides access to the Internet and such systems
operated or services offered by libraries or educational institutions.
Important (very real) cases for you to review:
Doe v. Myspace – in which Myspace won that section 230 protected the company against a claim
that they should have tried harder to prevent a 13 year old from creating an account and being
harmed by someone they met online
Fair Housing Council of San Fernando Valley v. Roommates.com – if a real estate company uses
information entered by users to discriminate on the basis of race, family, and sexual orientation,
230 does not apply
National Fair Housing Alliance v. Facebook – that the combination of housing targeting and
housing advertising on FB violated fair housing law, FB attempted to argue 230 but then FB
settled and no longer allows targeting on housing ads
FTC v. Accusearch – because Accusearch actively developed defamatory content they were not
protected by 230
E-Ventures Worldwide v. Google – google lost that delisting a competitor was protected by 230,
but won that delisting was protected speech
Brandenburg v. Ohio – speech producing immanent lawless action may be restrained 9-0
decision, no dissent
B. L. v. Mahanoy – student speech on snapchat criticizing the cheer team was protected, the
speech was not vulgar or threatening
For our simulation assume that on the trial level, it has been established that FB was negligent.
This is not up for debate on the appeals level.
Facebook goes first and must win that judgement should be reversed. Facebook can make three primary arguments:
· Section 230 provides immunity for all Facebook operations
· Implications from an algorithm should never be actionable
· Their choice to abet the riot was protected first amendment speech, everyone knows that
FB is a reactionary company
· Content moderation is provided as a courtesy, there are no industry standards for how a
social network should act
Crawford would respond that:
· Section 230 was designed to protect companies like Prodigy or Comcast, not companies
actively involved in editorial decision making
· That the 1A and 230 arguments are incompatible
· There was no 1A value to the statements made about Crawford’s child, they were
defamation perse and that the standard grave harm standard has literally been met
· The balance of 1A law does not protect reckless activity by a publisher – FB deciding to
disable restraints only for one side is the opposite of what is protected behavior by a
What are the big questions in the case?
· Is Facebook an Interactive Computer Service as defined in section 230?
· Should there be a legal distinction between content produced by users and the algorithms
designed by Facebook to focus attention?
· Would Facebook be protected under 230 or 1A if they had left their standard moderation
systems in place?
· Should 1A be expanded to protect FB in this case?
In your brief, answer the big questions from your perspective. If you are the judge, describe how
you think the current law would resolve the big questions.