Little Legal Recourse for Supremacists Booted Off Tech Platforms, Experts Say
In the aftermath of a tumultuous and tragic weekend in Charlottesville, Virginia, ignited by opposition to the city's decision to remove a Robert E. Lee…
August 17, 2017 at 07:10 PM
5 minute read
The original version of this story was published on Law.com
In the aftermath of a tumultuous and tragic weekend in Charlottesville, Virginia, ignited by opposition to the city's decision to remove a Robert E. Lee statue and fueled by slur-slinging and violence, a small group of technology companies have leveraged their contractual powers to rebuke white nationalism, banning specific users from their platforms over their views.
The decisions by these companies are entirely legal, said several experts, and they are largely protected from potential litigation from users.
“Services that choose not to deal with white supremacists, Nazis, or those who support them, are free to not do so,” said Eric Goldman, law professor and co-director of the High Tech Law Institute at Santa Clara University School of Law.
On Aug. 12, protesters from around the country descended on Charlottesville for the “Unite the Right” rally. On display were swastika-emblazoned flags, arms held out in Nazi salutes, T-shirts with Adolf Hitler quotes and bodies fitted with riot gear. A man drove his car into a group of counter-protesters later in the day, killing one woman and injuring 19 others.
On Sunday, website hosting company GoDaddy Inc. revoked the domain registration of neo-Nazi news site The Daily Stormer because the site violated GoDaddy's terms of service. The website tried to register with Google, but was denied for similar reasons. Days before the rally, Airbnb had suspended user accounts of those attending, explaining that such users were engaging in behavior that broke the Airbnb “Community Commitment.” GoFundMe took down specific funding projects. PayPal cut off organizations attached to white supremacist ideologies.
These decisions are protected by each company's user agreements, said Hunton & Williams partner Randall Parks, chair of the firm's global technology and outsourcing practice group. Parks said, in the case of Google and GoDaddy: “The Daily Stormer accepted the terms of use when they signed up for the services, and the terms that Google and GoDaddy have are pretty specific: No hate speech, and we'll be the ones to determine what hate speech is.”
GoDaddy spokesman Dan Race told The New York Times the company revoked The Daily Stormer's domain because of a published article on the site that mocked the counter-protester who died in the Aug. 12 car attack. Race told the Times “we believe this type of article could incite additional violence, which violates our terms of service.”
Parks said the private contracts in all these situations dictate how any potential lawsuit might play out. And because these companies are not state actors, those affected by their actions lack First Amendment claims. “The Constitution doesn't have implications in that context,” he said.
When asked if these tech companies' user agreements could be used to ban users who hold other political views—such as those considered left-of-center on the political spectrum—Parks said yes.
“By signing up to use these services, you agree that providers' discretion will rule the day,” Parks said. “If the political situation changes, then that discretion could be exercised in exactly the way you're suggesting.”
Goldman, the Santa Clara University professor, said that in addition to user agreements, GoDaddy and Google's actions are also protected by Section 230 of the Communications Decency Act, which protects private online publishers from being held liable for any moderation or access restriction to content that is seen as “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
“These actions are not governed by the First Amendment because the companies are not state actors, and the companies have a contract in place with people that they're turning off, and they have Section 230 as a backup,” Goldman said, explaining the protections afforded to GoDaddy and Google.
One wrinkle, though, said Avvo Inc. chief legal officer Joshua King, is Airbnb's situation. Because Airbnb removed guests from its website and canceled upcoming reservations, a user could potentially claim a breach of contract, he said.
“It's possible that a person has a contract claim against Airbnb, since they were counting on being able to stay somewhere, had to stay somewhere else, paid twice as much,” King said, hypothesizing. He said such a claim could go to small claims court or arbitration.
An Airbnb spokesperson forwarded a statement from CEO Brian Chesky condemning “violence, racism and hatred demonstrated by Neo-Nazis, the alt-right and white supremacists.” “As we explained to members of the media who contacted us last week, we require those who are members of the Airbnb community to accept people regardless of their race, religion, national origin, ethnicity, disability, sex, gender identity, sexual orientation, or age,” Chesky said in the statement. “When we see people pursuing behavior on the platform that would be antithetical to the Airbnb Community Commitment, we take appropriate action.”
The spokesperson did not provide answers to further questions about the legal department's role in the company's decision.
King said company decisions in this area are a mix of legal, business and PR. And sometimes, risking litigation is worth sending a clear message about the company's values. “If you're Airbnb, you're not really worried that the Department of Justice's Office of Civil Rights is going to come down on me, sue me and get me into a consent decree that says for 20 years we won't discriminate against neo-Nazis who want to rent space from me,” King said. “I'd probably regard that as low risk, and maybe even a fight I'd be happy to have if it came to that.”
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllUS Reviewer of Foreign Transactions Sees More Political, Policy Influence, Say Observers
Pre-Internet High Court Ruling Hobbling Efforts to Keep Tech Giants from Using Below-Cost Pricing to Bury Rivals
6 minute readAttorney General Seeks Permanent Injunction Against Abortion-Related Telemedicine
2 minute readSenate Panel Postpones Vote on Reconfirmation of Democrat Crenshaw to SEC
Trending Stories
- 1People in the News—Dec. 23, 2024—Barley Snyder, Marshall Dennehey
- 2How I Made Office Managing Partner: 'Be a Lawyer First, Foremost and Always,' Says Matthew McLaughlin of Venable
- 3Bar Report - Dec. 23
- 4Recent Decisions Regarding the Telephone Consumer Protection Act
- 5The Tech Built by Law Firms in 2024
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250