Omar Mateen murdered 49 people in an Orlando nightclub, and Mark Zuckerberg did not.
But Omar Mateen was an Islamic jihadist who now is as dead as fried chicken, while Mark Zuckerberg is a Silicon Valley billionaire who is very much alive.
Hence, the lawsuit.
The families of Tevin Crosby, Javier Jorge-Reyes, and Juan Ramon Guerrero, three men killed at the Pulse gay club by Mateen in the purported service of Allah, are suing Twitter (market capitalization $12.5 billion), Facebook (market cap $341 billion), and Alphabet (that’s Google and YouTube to you, market cap $557 billion) on the theory that these technology companies did not do enough to keep the Islamic State and sundry Muslim radicals from using their platforms to recruit and inspire such acts of savagery as that in Orlando.
This is partly, perhaps mainly, a case of defendant-shopping: The families in question might plausibly have sued everybody from the Islamic State to the government of Iran to the FBI in this case, but good luck collecting on a judgment against any of them. The nerds who run Facebook and Google have billions of dollars at their disposal, no sovereign immunity, and no proclivity for cutting the heads off of those who oppose them.
Suing Mark Zuckerberg because the wack-a-doodle school of Islam uses social media is a little like suing Johannes Gutenberg for all the evil that has been done by readers of Mein Kampf, The Communist Manifesto, or The Protocols of the Elders of Zion. But at the same time, Zuckerberg et al. are inviting such litigation.
The question here involves the interaction between distinct but overlapping activities: creating new kinds of communication technology; creating commercial spaces in which that technology is deployed to create a platform; producing content on those platforms, or exercising editorial control over content on those platforms.
A few examples might be illuminating. As I pointed out at the time, my hometown newspaper, the Lubbock Avalanche Journal, committed a gross and obvious libel against Rick Perry when he was the governor of Texas, (the libelous column is still on the newspaper’s website), falsely claiming, among other things, that he is a felon. When challenged on this by me and by others, the newspaper’s editors (who really ought to know better or see if their insurance plan covers self-respect implants) protested that they assumed no editorial responsibility for material published on their website, which is, as a matter of law, absurd. This is not something like, say, Daily Kos, where basically anybody can write “diaries” or the like, or the intellectual sewers that we call “comments sections.” The only reason that Rick Perry hasn’t sued the pants off of the editors and publisher of the Avalanche Journal is that doing so apparently isn’t worth his time.
Twitter, Google, and, to a much greater extent, Facebook do exercise some editorial control over their services, usually incompetently. But what they exercise is mainly either negative control (banning certain individuals, groups, or points of view, or removing material) and curatorial control. Conservatives complain, rightly, that they do this in a way that reflects their biases, which are those of corporate Democrats of the Clintonian variety. But being biased is neither a crime nor a tort, in spite of the dearest wishes of the president-elect.
Facebook and YouTube will remove certain kinds of material, either on their own volition or in response to complaints. (For YouTube, this is at least as often in response to copyright complaints as to anything else.) One line of thinking might lead us to believe that in exercising this editorial control they assume general editorial responsibilities, i.e., that by deleting material or suppressing jihadist propaganda they acquire a legal liability if they fail to do so, or fail to do so extensively and quickly enough. Under this model, these companies are more like a newspaper and less like the companies that build the newspaper’s presses or manage its fiber-optic networks.
The downside of that model of liability is obvious: If exercising some editorial discretion creates a broad and general liability for content on the site, then Facebook and Twitter have a very strong motive to exercise no responsibility at all, and to treat NAMBLA, the Islamic State, and the National Model Railroad Association as though there were no difference between any of them. Failing that, there is a motive to swing too far in the other direction, to engage in heavy-handed editorial exclusion of controversial and radical points of view, to overreact to strong language and powerful images, and to draw the boundaries of social-media discourse in the narrowest commercially viable fashion. That would not be a good outcome, either.
As imperfect, biased, and editorially incompetent as Facebook and Twitter’s ad hoc approaches are, there is not any obviously preferable alternative to them, and certainly not one that respects our free-speech traditions and the fact that these very public forums are, after all, the private property of the firms that create and operate them.
