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2023 Quick Links: Social Media

Facebook

* Meta Platforms, Inc. v. District of Columbia, 2023 WL 5964764 (D.C. Ct. App. Sept. 14, 2023). This is the latest ruling in an investigation by DC Attorney General into Meta’s content moderation practices, especially regarding COVID-19 policies. “The District, perceiving a mismatch between these public statements and the widespread dissemination of vaccine misinformation on Facebook, is investigating Meta’s potential violations of the CPPA.” Investigations like this should make everyone nervous that they are motivated by censorship and will in fact change content moderation practices, but the court doesn’t seem worried about that at all. Facebook resisted a subpoena demanding public (or near-public) posts. The court rejects Meta’s First Amendment challenge:

Meta tries to take this argument a step further, claiming an investigation into its statements about its content moderation practices might indirectly chill those practices themselves. “[J]ust as a subpoena demanding notes from an editorial board meeting would risk chilling a newspaper’s editorial rights,” Meta argues, so too does the subpoena here threaten its “exercise of editorial control.” The problem with that analogy is that Meta not only made its content moderation policies publicly available, it then widely touted the actions that were supposedly taken pursuant to those policies; indeed, those public statements were the basis for the District’s investigation. To piggyback on the editorial board analogy, if the newspaper itself had published an account of its editorial policies and decisions, and it turned out to be potentially fraudulent in some way, it would not chill the newspaper’s exercise of editorial control to investigate whether the newspaper’s public statements on that topic were false.

The court is way off-base here for reasons I explain in this article. Could the FTC investigate Fox News’ “fair and balanced” tagline by digging into its editorial practices? No, and it’s not even close. Note also how governments will weaponize mandatory TOS disclosures, i.e., if you didn’t tell the public them, then they wouldn’t have acted as promises to consumers, but since we compelled you to tell the public, we can now treat them as enforceable promises.

* Six4Three v. Facebook, CIV 533328 (Cal. Superior Ct. June 17, 2022). Court granted Facebook’s anti-SLAPP motion in lawsuit over “publication/de-publication to developers via the Facebook Platform API”:

Plaintiff’s app depended on Facebook’s publication of third-party user’s photos to developers through Facebook’s Platform. When Facebook cutoff access to its API, or depublished the third-party content, to developers, the developers no longer had access to the third-party content even though it would be available on Facebook to other end-users contingent on user controlled privacy settings….. Facebook’s decision to de-publish third party content from developers, but not end users, is protected by the Communications Decency Act

The court awarded Facebook $683k in attorneys fees. Ouch.

* CNN: Mark Zuckerberg personally rejected Meta’s proposals to improve teen mental health, court documents allege

* WSJ: Facebook Wanted Out of Politics. It Was Messier Than Anyone Expected.

* OII: “No evidence linking Facebook adoption and negative well-being: Oxford study.” BBC: Facebook’s growth not linked to psychological harm, study finds

* Science: How do social media feed algorithms affect attitudes and behavior in an election campaign?

We investigated the effects of Facebook’s and Instagram’s feed algorithms during the 2020 US election. We assigned a sample of consenting users to reverse-chronologically-ordered feeds instead of the default algorithms. Moving users out of algorithmic feeds substantially decreased the time they spent on the platforms and their activity. The chronological feed also affected exposure to content: The amount of political and untrustworthy content they saw increased on both platforms, the amount of content classified as uncivil or containing slur words they saw decreased on Facebook, and the amount of content from moderate friends and sources with ideologically mixed audiences they saw increased on Facebook. Despite these substantial changes in users’ on-platform experience, the chronological feed did not significantly alter levels of issue polarization, affective polarization, political knowledge, or other key attitudes during the 3-month study period.

* Science: Asymmetric ideological segregation in exposure to political news on Facebook:

there is an asymmetry between conservative and liberal audiences, with a substantial corner of the news ecosystem consumed exclusively by conservatives; and most misinformation, as identified by Meta’s Third-Party Fact-Checking Program, exists within this homogeneously conservative corner, which has no equivalent on the liberal side

* Nature: Like-minded sources on Facebook are prevalent but not polarizing. “although exposure to content from like-minded sources on social media is common, reducing its prevalence during the 2020 US presidential election did not correspondingly reduce polarization in beliefs or attitudes”

* Lucas v. City of Delray Beach, 2023 WL 6037456 (S.D. Fla. Sept. 15, 2023). Another police officer disciplined for posting an anti-BLM statement on Facebook. The court says:

As far as the speech’s “place,” Lucas published her comments on Facebook—a social-media platform for the widespread and instantaneous dissemination of information. Lucas contests this last point by noting that her Facebook page was for “friends-and-family only.” She later tells us that her Facebook network totaled some “150 or so” people. For two reasons, we don’t think that matters. One, an online post is in many ways more public than an in-person speech. For one thing, an online post can be disseminated to countless people immediately. For another, an online comment will remain on the web forever. In any event, had Lucas expressed her feelings at an in-person town hall meeting, attended by 150-or-so people, we’d have little trouble concluding that she’d made her statements publicly. The fact that she opted to disseminate her comments to 150 people online thus doesn’t, from our perspective, change anything. Two, just because these 150-or-so people were Facebook “friends” with Lucas didn’t prevent them from sharing the post outside of Lucas’s network. And that, of course, is exactly what happened. The very day after the post was published, at least two people from the community approached Chief Sims to complain about Lucas’s comments — indicating that at least some of Lucas’s “friends” disseminated the post outside her network.

* Lutzow v. Manteca, 2023 WL 3833367 (Cal. App. Ct. June 6, 2023):

Breitenbucher “liked” comments and an article in a public forum, Facebook. Further, the content of the posts implicates an issue of public interest: plaintiff’s actions as city manager, including her decision to fire the chief of police. Indeed, the public nature of the Facebook posts, commented on by other city residents, support the conclusion that the posts addressed public issues. Thus, Breitenbucher’s activity on social media is protected activity as actions made in furtherance of his right of free speech, related to matters of public interest.

* Kallinen v. Newman, 2023 WL 2645555 (5th Cir. March 27, 2023):

While the alleged facts here suggest that Judge Newman often used his page as a campaign tool, they do not support a claim that Judge Newman used his official position to silence Kallinen’s speech, or that Judge Newman’s Facebook page was a function of his official duties. At best, Kallinen has alleged enough facts to conclude that Judge Newman used his Facebook page strategically to create a favorable impression in the minds of voters. Further, Kallinen does not allege facts demonstrating that Judge Newman used his power as a judge to delete Kallinen’s comments.

Others

* Chouinard v. Marigot Beach Club and Dive Resort, 2023 WL 2743305 (D. Mass. March 31, 2023):

Plaintiffs’ tort claims arise out of events that occurred entirely in St. Lucia, and the court cannot agree that defendants’ proffered contacts with Massachusetts “relate to” those claims. The contacts are not sufficiently meaningful, important, or even material.

The Resort’s own website and its pages on third-party travel websites are “on the internet for all the world to see.” Any posts on Pinterest, Facebook, Instagram, Twitter, and YouTube are likewise “on the internet for all the world to see.” The pages of the Resort’s own website that plaintiffs have submitted do not refer to Massachusetts or its residents. Plaintiffs have not submitted the Resort’s pages on third-party travel websites or presented social media posts. Thus, there is no evidence that, for example, the Resort’s page on Expedia, Caradonna Adventure’s brochure, if one exists, or some tweet by Charles, sought to cultivate business from Massachusetts and its residents specifically.

Defendants deny that the Resort targets Massachusetts or its residents with advertising. Plaintiffs’ evidentiary proffer establishes the opportunity to target Massachusetts-based customers, not that Massachusetts-based customers were, in fact, targeted. Even assuming for the sake of argument that the Resort targeted Massachusetts or its residents with advertising, there is no evidence that Elizabeth and Jodie ever saw such advertising or that it influenced them. They have both submitted affidavits, and neither attests to seeing advertising which targeted Massachusetts or its residents, as opposed to the Resort’s world-wide website. The Resort, they attest, “targeted divers.”

The post-reservation communications between Jake, Elizabeth, and Jodie and the Resort do not satisfy plaintiffs’ constitutional burden. With the exception of Charles’ welcome email to Jodie on the morning of February 16, the communications in the record were not initiated by the Resort. Jake emailed the resort about a gift card and the Resort responded. Elizabeth emailed the Resort about spa treatments, excursions, and transportation and the Resort responded. Jodie emailed the Resort about dives and the Resort responded. Contrary to plaintiffs’ argument, these communications did not establish a business relationship like the one in Nowak, which was extensively negotiated between the decedent’s husband’s employer and the Holiday Inn, prior to the reservation and tragic drowning in that case. Finally, these communications are not like Nandjou’s direct mailings to the plaintiff’s and decedents’ home that induced the reservation prior to the tragic drownings in that case.

Plaintiffs’ evidentiary proffers show that Elizabeth and Jodie, in Massachusetts, conducted internet research and “came upon” the St. Lucia Resort’s website; made the reservation through Expedia; and then made virtual requests pertaining to St. Lucia-based services that ultimately would have an exceedingly attenuated connection to the accident. The Resort responded to these requests, remotely. Plaintiffs point to no case in which a court has held that facts like these meet the “relatedness” prong.

* Wired: “More recently, Huffman says he and his team have become more comfortable acting against people who test the boundaries of the platform’s policies, posting content that almost but doesn’t quite break the rules. “One thing we developed over the last few years is we have a lot more courage to call that out,” he says—Reddit is increasingly happy to ban, block, or delete a user, or post a policy and then change it afterward.” This would be illegal if services are required only to enforce their TOS as published.

* Wired: Twitter’s Former Head of Trust and Safety Finally Breaks Her Silence

* Van Truong v. Tran, 2023 WL 5540894 (Cal. App. Ct. Aug. 29, 2023): “Defendant claims the amount of attention a YouTube broadcast receives is a strong indication of public interest. But, without more, social media viewership does not demonstrate statements are made in connection with an issue of public interest.”

* Washington Post: American teens are unwell because American society is unwell

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