A Law Student Tested Facebook. Experts Say He's the One Who Failed
Connecticut law school student Cameron Atkinson has sued Facebook, alleging the social media giant censored him by deleting his posts naming the alleged Trump-Ukrainian whistleblower.
November 13, 2019 at 04:08 PM
4 minute read
The consensus among experts is that a conservative Quinnipiac University Law School student has little chance of beating Facebook in a First Amendment lawsuit he filed Tuesday.
Plus, the lawyer-in-training appears headed for a major lesson in media and constitutional law, according to observers, who say the suit raises broader questions about what constitutes the media in the internet age.
The student at the center of the Facebook lawsuit—Cameron Atkinson—sued for punitive damages, claiming the social media giant had no right to take down three posts mentioning the alleged identity of a a whistleblower who raised concern about the nature of a phone call between President Donald Trump and Ukrainian President Volodymyr Zelensky. The name of someone alleged to be the whistleblower has been reported on many conservative websites.
So Atkinson decided to test Facebook by posting the name on his own page.
In one post, Atkinson said he supported the whistleblower. In another, he denounced the whistleblower, and in a third, he said he was conflicted on the issue. He claimed his aim was to detect political bias among gatekeepers within the social media platform.
Facebook took down all three posts.
And now lawyers and other observers are weighing in—a free lesson in media law for the student.
"The short of it is: If it's a private corporation doing the censoring, the First Amendment does not apply," said Horton, Dowd, Bartschi & Levesque litigator Scott Garosshen, who's litigated First Amendment cases before the Connecticut appellate courts. "Government actors, like Congress or government entities, are the ones that could be constrained. Facebook is not a government actor. They are a private corporation."
In other words: Atkinson probably won't be pleased with how the court is likely to "grade" his complaint.
Quinnipiac University Professor of Law Emeritus Marty Margulies appeared to agree.
"As far as the First Amendment is concerned, I see no restrictions on Facebook's authority," he said. "The First Amendment does not limit the power of private parties, no matter how powerful those parties might be."
|What about defamation?
No one from Facebook's media relations department responded to a request for comment Wednesday. But the company discussed potential defamation when it talked to Bloomberg about posts related to the White House insider who alleged President Donald Trump had asked Ukrainian President Volodymyr Zelensky to investigate former Vice President Joe Biden.
"Any mention of the potential whistle-blower's name violates our coordinating harm policy, which prohibits content outing of witness, informant or activist," Facebook said in its statement. "We are removing any and all mentions of the potential whistleblower's name, and will revisit this decision should [his or her] name be widely published in the media or used by public figures in debate."
Even without that policy, the company would likely have a shield, if the alleged whistleblower filed suit.
"I'm not even sure there is a defamation case there," said media law attorney Alan Neigher. "If he is the whistleblower, we can print his name. The public is entitled to know the truth."
Plus, Facebook and other social media platforms benefit from the 1996 Communications Decency Act, Section 230, which exempts internet carriers from being considered "publishers" as it relates to libel suits.
That federal legislation makes it very clear that the publisher in this context is Atkinson, not Facebook, said Neigher, a Westport solo practitioner who has more than 30 years' experience in media and entertainment law. The exception would have been if the social media platform had changed the substance of the article, opening the door to litigation risk for any fallout.
But that didn't happen, which meant Atkinson might have left himself vulnerable by naming on Facebook someone who might not be the whistleblower.
"Facebook is not the publisher and thus they are not liable," Neigher said. "It's the person that posts that can be liable."
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