Plaintiffs owned and operated a Facebook page that Facebook shut down in 2018 because of concerns the page was associated with Russian interference with the 2016 U.S. presidential election. After getting shut down, plaintiffs sued Facebook alleging a number of claims, including:

  • damages under 42 U.S.C. §1983 for deprivation of a constitutional right by one acting under color of state law;
  • civil rights violations under California law;
  • breach of contract; and
  • breach of implied covenant of good faith and fair dealing.

Facebook moved to dismiss these claims under the Communications Decency Act at 47 U.S.C. §230. The court granted the motion to dismiss.

Section 230 immunizes defendants from liability if:

  • defendant is a provider or user of an interactive computer service;
  • the information for which plaintiff seeks to hold defendant liable is information provided by another information content provider; and
  • plaintiff’s claim seeks to hold defendant liable as the publisher or speaker of that information.

In this case, there was no dispute Facebook met the first two elements, i.e., it is a provider of an interactive computer service and the information (namely, the content of plaintiffs’ page) was provided by a party other than Facebook. The real dispute came under the third element.

Plaintiffs argued that Section 230 should not immunize Facebook because this case did not concern obscenity or any other form of unprotected speech. Instead, plaintiffs argued, the case concerned political speech that strikes at the heart of the First Amendment. The court rejected this argument, holding that immunity under the Communications Decency Act does not contain a political speech exception. The statutory text provides that 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. (Emphasis added). No distinction is made between political speech and non-political speech.

Plaintiff also argued that granting Facebook immunity would be counter to congressional intent behind the Communications Decency Act. But the court borrowed language from Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) on this point: “Both parties make a lot of sound and fury on the congressional intent of the immunity under section 230, but such noise ultimately signifies nothing. It is the language of the statute that defines and enacts the concerns and aims of Congress; a particular concern does not rewrite the language.” Looking to Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008), the court noted that Ninth Circuit case law interpreting the language of the Communications Decency Act has held that “activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230.”

Federal Agency of News LLC v. Facebook, Inc., 2019 WL 3254208 (N.D. Cal. July 20, 2019)