Why The Ninth Circuit's Decision In Lemmon V. Snap Is Wrong On Section 230 And Bad For Online Speech
from the another-hard-case dept
Foes of Section 230 are always happy to see a case where a court denies a platform its protection. What's alarming about Lemmon v. Snap is how comfortable so many of the statute's frequent defenders seem to be with the Ninth Circuit overruling the district court to deny Snapchat this defense. They mistakenly believe that this case raises a form of liability Section 230 was never intended to reach. On the contrary: the entire theory of the case is predicated on the idea that Snapchat let people talk about something they were doing. This expressive conduct is at the heart of what Section 230 was intended to protect, and denying the statute's protection here invites exactly the sort of harm to expression that the law was passed to prevent.
The trouble with this case, like so many other cases with horrible facts, is that it can be hard for courts to see that bigger picture. As we wrote in an amicus brief in the Armslist case, which was another case involving Section 230 with nightmarish facts obscuring the important speech issues in play:
"Tragic events like the one at the heart of this case can often challenge the proper adjudication of litigation brought against Internet platforms. Justice would seem to call for a remedy, and if it appears that some twenty-year old federal statute is all that stands between a worthy plaintiff and a remedy, it can be tempting for courts to ignore it in order to find a way to grant that relief."
Here some teenagers were killed in a horrific high-speed car crash, and of course the tragedy of the situation creates an enormous temptation to find someone to blame. But while we can be sympathetic to the court's instinct, we can't suborn the facile reasoning it employed to look past the speech issues in play because acknowledging them would have interfered with the conclusion the court was determined to reach. Especially because at one point it even recognized that this was a case about user speech, before continuing on with an analysis that ignored its import:
Shortly before the crash, Landen opened Snapchat, a smartphone application, to document how fast the boys were going. [p.5] (emphasis added)
This sentence, noting that the boys were trying to document how fast they were going, captures the crux of the case: that the users were using the service to express themselves, albeit in a way that was harmful. But that's what Section 230 is built for, to insulate service providers from liability when people use their services to express themselves in harmful ways because, let's face it, people do it all the time. The court here wants us to believe that this case is somehow different from the sort of matter where Section 230 would apply and that this "negligent design" claim involves a sort of harm that Section 230 was never intended to apply to. Unfortunately it's not a view supported by the statutory text or the majority of precedent, and for good reason because, as explained below, it would eviscerate Section 230's critical protection for everyone.
Like it had done in the Homeaway case, the court repeatedly tried to split an invisible hair to pretend it wasn't trying to impose liability arising out of the users' own speech. [See, e.g., p. 10, misapplying Barnes v. Yahoo]. Of course, a claim that there was a negligent design of a service for facilitating expression is inherently premised on the idea that there was a problem with the resulting expression. And just because the case was not about a specific form of legal liability manifest in their users' speech did not put it outside of Section 230. Section 230 is a purposefully broadly-stated law ("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."), and here the court wants the platform to take responsibility for how its users used its services to express themselves. [p. 15, misapplying the Roommates.com case].
Section 230 also covers everything that could be wrong with expression unless the thing wrong with it happens to fall into one of the few exceptions the statute enumerates: it involves an intellectual property right, violates federal criminal law, or otherwise implicates FOSTA. None of those exceptions apply here, and, in fact, in the same section of the law where these few exceptions are set forth there is also a pre-emption provision explicitly barring any state law from becoming the basis of any new exceptions. Which, with this decision giving the go-ahead to a state law-based tort claim of "negligent design," is what the Ninth Circuit has now caused to happen.
It hurts online speech if courts can carve out new exceptions. If judges can ever post hoc look at a situation where expressive activity has led to harm and decide the degree of harm warrants stripping service providers of their Section 230 protection, then there is basically no point in having Section 230 on the books. If platforms have to litigate over whether it protects them, then it doesn't really matter whether it does or not because they'll already have lost out on so much of the value the protection was supposed to afford them to make it possible for them to facilitate others' expression in the first place. The inevitable consequence of this functional loss of statutory protection is that there will be fewer service providers available to facilitate as much user expression, if any at all.
But even if there were some limiting principle that could be derived from this case to constrain courts from inventing any other new exceptions, just having this particular "negligent design" one will still harm plenty of speech. To begin with, one troubling aspect the decision is that it is not particularly coherent, and one area of confusion relates to what it actually thinks is the negligent design. [see, e.g., p. 15]. The court spends time complaining about how Snapchat somehow deliberately encourages users to drive at unsafe speeds, even though the court itself acknowledged that while Snapchat apparently rewards users with "trophies, streaks, and social recognitions" to encourage them to keep using their service [p. 5], it "does not tell its users how to earn these various achievements" [p. 5], and it is a leap to say that Snap is somehow wrongfully encouraging users to do anything when it is not actually saying anything of the kind. [See p. 6 ("Many of Snapchat’s users suspect, if not actually 'believe,' that Snapchat will reward them for 'recording a 100-MPH or faster [s]nap' using the Speed Filter.")]. In fact, as the decision itself cites, Snapchat actually cautioned against reckless posting behavior. [See p. 6 with the screenshot including the text, "Don't snap and drive."] If the case were actually about Snap explicitly encouraging dangerous behavior ("Drive 100 mph and win a prize!") then there might legitimately be a claim predicated on the platform's own harmful speech, for which Section 230 wouldn't apply. But the record does not support this sort of theory, the theory of liability was predicated on a user's apparently harmful speech, and in any case the alleged encouragement wasn't really what the plaintiffs were charging was actually negligently designed anyway.
Instead, what was at issue was the "speed filter," a tool that helped users document how fast they were traveling. Unlike the district court, the Ninth Circuit could not seem to fathom that a tool that helped document speed could be used for anything other than unsafe purposes. But of course it can. Whether traveling at speed is dangerous depends entirely on context. A user in a plane could easily document traveling at significant speed perfectly safely, while a user on a bike documenting travel at a much slower speed could still be in tremendous peril. One reason we have Section 230 is because it is impossible for the service provider to effectively police all the uses of its platform, and even if it could, it would be unlikely to know whether the speeding was safe or not. But in denying Snapchat Section 230 protection with the presumption that such speech is always unsafe, the court has effectively decided that no one can ever document that they are traveling quickly, even in a safe way, because it is now too legally risky for the platform to give users the tools to do it.
Furthermore, if a platform could lose its Section 230 platform because the design of its services enabled speech that was harmful, it would eviscerate Section 230, because there are few, if any, whose design would not. For example, Twitter's design lets people post harmful expression. Perhaps one might argue it even encourages them to by making it so easy to post such garbage. Of course, Twitter also makes it easy to post things that are not harmful too, but the Ninth Circuit's decision here does not seem to care that a design eliciting user expression might be used for both good and bad ends. Per this decision, which asserts a state law-created "duty to design a reasonably safe product," [see p. 13, misapplying the Doe 14 v. Internet Brands case], even a product that meets the definition of an "interactive computer service" set forth in Section 230 (along with its pre-emption provision), if the design could be used to induce bad expression, then the platform no longer qualifies for Section 230's protection. But that would effectively mean that everyone could always plead around Section 230 because nearly every Section 230 case arises from someone having used the service in a harmful way the service enabled. It is unfortunate that the Ninth Circuit has now opened the door to such litigation, as the consequences stand to be chilling to all kinds of online speech and services Section 230 was designed to protect.
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Filed Under: 9th circuit, intermediary liability, lemmon, negligence, product liability, section 230, speech, speed filter
Companies: snap
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"Furthermore, if a platform could lose its Section 230 platform because the design of its services enabled speech that was harmful..."
According to the court document, this case wasn't about harmful speech. It was about induced, dangerous behavior. Whether that is correct or not, Snapchat wasn't being sued because of the speech, it was being sued because (according to the plaintiffs) of inducing the behavior, and they should have known it would cause dangerous behavior.
Section 230 as a defense in this case is a bit of a stretch in my mind. IANAL and don't even play one on TV.
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If snap chat is responsible for a drivers bad decision, why was the car manufacturer not included in the case for having installed a speedo that shows illegal speeds in a car capable of high speeds?
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I would guess that if the automakers gave out rewards like Snapchat did to induce the behavior, they would get sued as well.
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Nobody has shown that speeding won awards.
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Other than a Darwin Award, maybe…
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The EFF say there nothing to worry about and they are usually right and do not believe it will eviscerate Section 230's protections for everyone by the backdoor.
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I believe you are probably referring to this eff deeplink.
From the decision:
EFF: This isn't a matter blaming Snapchat for the kids' speech, § 230 is intact.
Gellis: The problem is that if the design could be used to induce bad expression, then the platform no longer qualifies for Section 230's protection.
Consider another twitter example: some kid sees a gazillion posts saying that drinking bleach cures covid, and so drinks bleach and dies. The parents sue, claiming that because twitter didn't prevent someone from using automation to create bot accounts and spreading the lie, Twitter was a defective product, despite every part of Twitter working correctly and as designed and without accusing twitter of being responsible for the troll's speech.
I think that the EFF's take is short sighted, as this effectively illustrates a viable way to cut 230 out of the loop. And the appeals court has to view the accusations in the light most favorable to the moving party (the plaintiffs, in this case). So... back to district court this goes, where Snapchat has a pretty good chance of prevailing anyway. But without being able to use 230 to cut to the chase.
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The idea here is this: Snap publishes these filters. The speed filter isn't content that users generated. It's a filter provided by Snapchat, who wants its users to then use it. Snap's demographic skews largely to younger users, and they should've expected that them publishing this kind of tool could easily encourage teenagers, i.e. those with less developed senses of personal judgment or regard for safety, to go for huge numbers in the only vehicles they could reliably get their hands on to then show off to their friends and other people.
There's a reasonable expectation here that a company like Snap, with their scale, reach, and understanding of their core demographics, would use better judgment. I agree with the EFF and the Ninth Circuit here; this case should go forward based on its merits and Snapchat doesn't get to use Section 230 as a defense.
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And then can society as a whole, or localities involved, or people who were travelling on the road at the same time, sue the plaintiffs for raising morons?
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Perhaps. Unfortunately, the kids used the same logic that says, "I've only had three beers, I should still be able to get home safely", or "this shortcut through this dark alley is probably safe", or "I've got a cunning plan, it's sure to work this time!" You know, where you've got odds highly in your favor, even though the consequences for losing are dire? And especially the young are not going to take the consequences into consideration.
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The number the filter displays, along along with any significance such holds, are solely and exclusively user-determined. Your narrative doesn't hold water.
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I disagree with this piece, for three reasons.
1) It's a little overblown to say the Ninth Circuit opinion carves a hole in Section 230. This is just a motion to dismiss at the earliest part of the case. Just because the Ninth Circuit thinks it's possible that Snap negligently designed its app doesn't mean it's likely. When this first came out, my initial reaction was also horror because I didn't dig into the reasoning.
But it's important to focus on why the lawsuit feels silly. It's not because Snap is being sued for snaps sent on the service. It's because the lawsuit claims that offering a speed filter encourages users, particularly young ones, to use a car to drive at high, dangerous speeds. That's a really big leap in logic, but it's different than suing over third party content. Section 230 only covers the former.
2) This piece blurs the issue of causation. The piece argues that the court took a "post hoc look at a situation where expressive activity has led to harm." But that's not what happened. The kids who got in a car crash didn't create or receive posts that hurt them. The harm is (supposedly) because Snap chose to create filter that created an incentive to drive unsafely. I think that's a bullshit argument, but again, it's not the same as saying third-party content "led to" harm. .
3) This is not the typical negligent design case. Often, "negligent design" is used by lawyers as a way to get around Section 230, like the Herrick v. Grindr case where the argument was basically "I was harassed and stalked by an ex on Grindr, and his stalking is Grindr's fault because they built an app to make stalking easy. My proof: it happened to me." It's pretty obvious what the lawsuit is about, and it's not that they actually want to redesign the product. They want Grindr to pay them because their service was used by someone in a bad way.
But the car crash in this case wasn't the result of "using" Snapchat in a bad way. It was (allegedly) the result of Snap's product design decision encouraging dangerous real-life behavior. If we want to avoid politicians making false claims about Section 230, we also have to avoid making inaccurate claims about what Section 230 does and doesn't cover.
tl;dr The plaintiffs in this case didn't die because of a snap they received, they died because they drove dangerously. That's probably not Snap's fault, but for different reasons than Section 230.
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Since the motion to dismiss is the whole advantage of section 230, it is more than a little dissonant to put those sentences together like that.
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While this is a civil case (wrongful death), it is my experience that such cases often come about when a criminal case cannot be sustained. (In this case, the proximate perpetrator died.) Now, if he had lived, the State would have charged him with criminal manslaughter, at the least. Supposing he presented a defense of "But Snapchat made me do it", that would've been dismissed for one simple reason: Each and every State in the Union has a simple declaratory rule upon issuing a driver's license (usually formally called an Operator's License (or permit)): "You as a driver in control of a motor vehicle must assume and accept total responsibility for your actions while in charge of said vehicle. There are no exceptions to this rule."
Court cases have abounded over the years, pondering this law and how it should/must be applied to contested situations. But the fact of the matter is, regardless of any distractions whatsoever, you are responsible for your actions, plain and simple. You can claim all you want that "The devil made me do it!", and no matter what guise the devil may take, you're still responsible, end of story. Snapchat's defense should rest on only one ideal - "This kid was breaking the law, and we made no inducements to persuade him to do to. He abdicated his personal responsibility to the State of his own volition, and we should not be used as a substitute for restitution to a harmed party..... particularly when we had no prior agreement between ourselves any of the remaining parties to this action."
It is a given in law that no party can be made to assume responsibility for another without a prior agreement (usually in writing). If Party A strikes Party B, and in falling down Party B strikes Party C, Party C cannot directly capture Party A for damages, instead he must go through Party B, the most direct proximate case of the tort. (The sole exception is parent/child relations.)
Now to the heart of the matter. The car maker analogy is a good one. If we start making third parties suffer the consequences of our (STUPID) actions, then we might as well go back to the cave man days, because a man's word is no longer his bond. By no rational person's personal gauge are we a civilized society if one can point his finger at another person and shift the blame/guilt in that manner. That is heresy of the highest order, and morally reprehensible.
But legal?? It is starting to look that way, isn't it. Sigh.
Side comment: On the face of it, this case deserves adjudication. But if we get crass and look at the underside, we see that it's nothing more than "muh feelz". Which then says that the case is a direct result of:
a) Too fucking many lawyers, most of them acting like ambulance chasers;
and
b) Judges refusing to meaningfully punish lawyers who continually prove that George Santyana was correct.
tl;dr:
Final scorecard for Snapchat: A for effort, but F for lack of validity.
Attempting to side-track the actual issue does not often win the day. The issue was never about speech, it is, and will always be, about personal responsibility.
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