I previously described this pro se lawsuit: “Elansari is Muslim. In this lawsuit, he claims that Facebook blocks pro-Palestinian publishers and favors pro-Israeli publishers. Thus, he argues, Jewish readers are more likely to get the information they want from Facebook than Muslims.” The lower court dismissed his complaint.
On appeal, the Third Circuit says that Elansari lacks standing to complain about Facebook’s publication decisions because “he does not show that he is legally entitled to the publication of the requested content or the removal of other content.” (Would the Florida or Texas social media censorship laws create that entitlement?)
Elansari’s invocation of Title II discrimination doesn’t change the result because (1) the law doesn’t “create a right to information,” (2) he did get “full and equal enjoyment of Facebook” like any other user, and (3) Facebook isn’t a place of public accommodation.
[The third point is just a one-sentence throwaway, but the status of Internet services as “places of public accommodation” is a hotly contested issue in other jurisdictions with enormous legal ramifications. The court could have cited (but didn’t) Young v. Facebook and its progeny.]
Elansari seeks to hold Meta liable for its decisions regarding which content to publish, but § 230 of the Communications Decency Act “‘precludes courts from entertaining claims that would place a computer service provider in a publisher’s role,’ and therefore bars ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone, or alter content.’”
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Elansari’s lawsuit was filed before Hamas’ October 7 terrorist attack on Israel, which has generated an enormous amount of online discussion, and imagine how much more evidence of discriminations/bias Elansari might cite today. In fact, both/all sides of the Hamas/Gaza situation routinely claim that social media services don’t adequately promote their side of the story and gives too much priority to the other side’s story. For example, Facebook was previously sued for alleged bias against pro-Israel content and in favor of pro-Palestinian content (Klayman v. Zuckerberg)–the inverse of Elansari’s allegations. (Klayman’s lawsuit also failed). These lawsuits don’t demonstrate that Facebook’s algorithm is actually biased or defective. Instead, they reinforce how content moderation is a zero-sum game where everyone always thinks that someone else is getting a better deal.
The Florida and Texas social media censorship laws are seemingly designed to provide redress for Elansari’s concerns. In other words, Elansari is alleging that Facebook engages in viewpoint discrimination and doesn’t moderate content consistently, which those laws are intended to prevent/punish. If those laws survive the various legal challenges, we can anticipate a roughly infinite number of lawsuits over content moderation decisions, each of which necessarily prioritized some content over others.
Case Citation: Elansari v. Meta Platforms, Inc., 2024 WL 163080 (3d Cir. Jan. 16, 2024)