Courtroom Rules Can't Trump Constitutional Rights

• Pages: 24-25
• Date: 01 October 2023
• Author: Susan F. Dent
• Subject Matter: Civil Law

Published in Litigation News Volume 49, Number 1, Fall 2023. © 202 3 by the American Bar As sociation. Reprodu ced with permission . All rights reser ved. This information o r any portion ther eof may not be copied o r disseminated in any form

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Twitter/X Not Liable

for Defamatory Posts

By Jonathan W. Lounsberry,

Litigation News Contributing Editor

Social media companies are not liable

for defamatory messages users post on

their platforms. In Brikman v. Twitter,

Inc., a federal court dismissed a defama-

tion claim under the Communications

Decency Act (CDA), holding that an

interactive computer service could be

liable only if it materially contributed to

the unlawful statements. ABA Litigation

Section leaders say the decision may

aord social media companies an

immunity from policing user content.

The plainti, a rabbi of a Brooklyn

synagogue, alleged that someone

impersonating the synagogue was mak-

ing defamatory posts on Twitter (sub-

sequently renamed “X”) and demanded

the posts be removed. Twitter refused

because the posts did not violate its

rules and policies. The plainti sued,

alleging that Twitter aided and abetted

the defamation by hosting and refus-

ing to take down the oending posts.

Twitter moved to dismiss.

The U.S. District Court for the

Eastern District of New York granted

Twitter’s motion, determining it was

immune from the plainti’s claims pur-

suant to the Communications Decency

Act. To qualify for immunity under

the CDA, (1) the defendant must be

a provider or user of an interactive

computer service, (2) the claim must

be based on information provided

by another information content pro-

vider, and (3) the claim would treat the

defendant as the publisher or speaker

of that information. The court found all

three factors present.

First, the court f‌irst determined that

Twitter qualif‌ied as an interactive com-

puter service, observing that “Twitter is

an online platform that allows multiple

users to access and share the content

hosted on its servers.”

Next, the court found the plainti’s

claims were based on information pro-

vided by another information content

provider, not Twitter. Twitter did not

play any role in the creation or devel-

opment of the challenged tweets

and thus was not an information

content provider.

Finally, the court concluded that the

plainti sought to hold Twitter liable as

the publisher of information provided

by another information content pro-

vider. The plainti argued that Twitter

published the information because it

hosted the tweets on its platform and

refused to remove the tweets when

the plainti reported them. The court

rejected this argument, noting that

such an interpretation would “eviscer-

ate” section 230 of the CDA because it

would hold Twitter liable for organiz-

ing and displaying content provided

by third parties. The plainti did not

allege that Twitter contributed to the

defamatory content of the individual

user’s tweets.

Litigation Section leaders note

that there may be signif‌icant policy

implications by granting social media

companies protection from defama-

tion liability. “Traditionally, this type of

laissez-faire approach has the potential

to prompt either rampant misconduct

and abuse of the freedom that inter-

active computer services are given

or, on the other end of the spectrum,

laudable self-regulation that ade-

quately addresses the issues of con-

cern,” explains Veronika Balbuzanova,

Plantation, FL, member of the Section’s

Privacy & Data Security Committee.

Further, “the downside is that the

immunity can reduce incentives for

platforms to police extreme user con-

tent, and it can backstop a bad actor’s

business model. Sites that trac in

extreme user content rely on the CDA

to escape liability for that content

while making money from it,” notes

Jonathan Peters, Athens, GA, chair of

the First Amendment Subcommittee

of the Section’s Civil Rights Litigation

Committee. “But the upside, which I

think is much more signif‌icant, is that

the immunity has enabled web inter-

activity to f‌lourish on sites as diverse

as YouTube, Craigslist, and Yelp. We

would not have the level of interactiv-

ity that we have today without section

230,” he adds.

This begs the question whether

the immunity aorded to an interac-

tive computer service aects the truth

and accuracy of posts made on their

services. “The Brikman court’s inter-

pretation of section 230(c)(1) of the

CDA essentially provides that social

media giants like Twitter/X, Facebook,

Instagram, Snapchat, etc., have no legal

duty to fact-check or verify the truth

and accuracy of any content posted on

their platforms,” notes Balbuzanova.

Courtroom Rules

Can’t Trump

Constitutional Rights

By Susan F. Dent, Litigation News

Associate Editor

Failure to comply with a court’s pre-

trial mediation scheduling order is not

grounds to deny a party his or her right

to a jury trial. In Bandy v. Vick, a state

appellate court reversed a trial court’s

judgment denying a jury trial when the

parties failed to timely mediate. ABA

Litigation Section leaders agree that

while respecting a court’s internal poli-

cies is important, the judiciary’s author-

ity to manage its calendar must protect

an individual’s fundamental constitu-

tional rights.

In Bandy, the plainti sued her doc-

tor and his practice in Pulaski County

Superior Court in Arkansas for medical

negligence related to a surgery per-

formed in 2013. The complaint included

a demand for a trial by jury, as did

the defendants’ answer and amended

answer. While not outlined in Arkansas’s

civil procedure statutes or Rules of

Court, the Pulaski County court’s pre-

trial scheduling order required that par-

ties attend and complete mediation no

less than 30 days prior to the pretrial

hearing date. The pretrial order warned

that failure to comply with the pretrial

requirements may result in removal

from the jury trial docket, dismissal of

claims, striking of armative defenses,

or the prohibition of the introduction of

certain testimony or exhibits (or both).

The parties all received copies of the

court’s pretrial order.

When the plainti refused to autho-

rize a settlement, the defense declined

to participate in mediation. However,

both parties inadvertently neglected

to obtain the court’s permission to

forgo mediation. After the deadline for

mediation passed, the parties jointly

requested an extension of mediation

deadlines. Despite the aligned nature

of their request, the trial court denied

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