Social media companies cannot be sued for their alleged roles in a racially-motivated mass shooting at a grocery store in Buffalo in 2022, according to a New York court that said to allow the lawsuit would “result in the end of the Internet as we know it.”
In a 3-2 opinion, a New York appeals court decided that federal communications law and the First Amendment provide the social media giants with immunity as publishers even though the lawsuit was based on product liability allegations.
The media firms had appealed from a 2024 ruling by an Erie County court denying their request to dismiss the complaint against them. But the Supreme Court Appellate Division, Fourth Department, last week reversed that denial and ruled in favor of the social media firms’ contention that they are immune from liability under section 230 of the Communications Decency Act and the First Amendment.
The media firms sued included Alphabet, Meta, Google, Snap, Amazon, Discord, Reddit, YouTube and others—many of which use algorithms that recommended content to users.
The same Fourth Department court last week permitted a liability lawsuit against a gun maker MEAN LLC over the Buffalo shooting to proceed.
The plaintiffs in these civil actions are survivors of the attack and family members of the victims.
On May 14, 2022, 18-year old Payton S. Gendron opened fire on Black individuals outside and inside the TOPS grocery store, killing 10 people and wounding three others. The shooter spent months planning the attack and was motivated by the Great Replacement Theory, which posits that white populations are being deliberately replaced by non-white immigrants and people of color. The shooter pleaded guilty in state court to 10 counts of intentional murder and has been sentenced to life in prison without the possibility of parole.
In suing the Internet firms, the plaintiffs had not pressed claims under communications law or the First Amendment. They, in fact, conceded that the racist content consumed by the shooter is protected by the First Amendment, and that the social media platforms cannot be held liable for publishing it.
Instead, the plaintiffs argued that social media platforms are not entitled to protection under section 230 or the First Amendment because the complaints seek to hold them liable as product designers, not as publishers of third-party content. The plaintiffs pursued tort causes including negligence, unjust enrichment, and strict products liability based on defective design and failure to warn.
They argued that the firms should be held liable for the defective design of their platforms using algorithms that “fed a steady stream of racist and violent content to the shooter, who over time became motivated to kill Black people.” The plaintiffs alleged that the algorithms “addicted the shooter to the social media defendants’ platforms, resulting in his isolation and radicalization” and that the platforms were “designed to stimulate engagement by exploiting the neurological vulnerabilities of users like the shooter and thereby maximize profits.”
Gendron admitted that he was addicted to the platforms, which resulted in his isolation and radicalization, according to the complaint.
But the Fourth Department appeals court rejected the plaintiffs’ arguments, reasoning that their use of algorithms is part of their being publishers. “The content-recommendation algorithms used by some of the social media defendants do not deprive those defendants of their status as publishers of third-party content,” the appeals court ruled, and thus they are still entitled to section 230 and the First Amendment protections.
The court also found that social media firms are also protected under state law in New York as providers of “interactive computer services” and publishers of third-party content.
To grant the plaintiffs’ claims “would gut the immunity provisions” of section 230 and “result in the end of the Internet as we know it,” the court asserted, adding that as a result “social media companies that sort and display content would be subject to liability for every untruthful statement made on their platforms” and “the Internet would over time devolve into mere message boards.”
The court continued, “While everyone of goodwill condemns the shooter’s actions and the vile content that motivated him to assassinate Black people simply because of the color of their skin, there is in our view no reasonable interpretation of section 230 that allows plaintiffs’ tort causes of action to survive as against the social media defendants, who are entitled to immunity under the statute as the publishers of third- party content on their platforms.”
The interplay between section 230 and the First Amendment gives rise to a “Heads I Win, Tails You Lose” proposition in favor of the social media defendants, according to the court. Either they are immune from civil liability under section 230 or they are protected by the First Amendment. “Of course, section 230 immunity and First Amendment protection are not mutually exclusive, and in our view the social media defendants are protected by both. Under no circumstances are they protected by neither,” the three judges in the majority explain.
The two dissenting judges found that since plaintiffs did not seek to hold the social media firms liable for any third-party content, their causes of action do not implicate section 230 or the First Amendment.
One of the plaintiffs’ attorneys, Kristen Elmore-Garcia, citing arguments by the two dissenting judges, told WKBW TV, that they will appeal to the state’s highest court, the Court of Appeals. “It is frustrating, but it’s not the end of the fight,” Elmore-Garcia said.
The lawsuit against gun accessory maker MEAN LLC alleges that the Georgia firm is responsible for helping the shooter obtain an assault weapon with an easily removable magazine “lock” that allowed him to use multiple, deadly large-capacity magazines during his massacre in violation of New York law. MEAN asked the lower court to dismiss the claims made against it, invoking the federal Protection of Lawful Commerce in Arms Act (PLCAA) that grants gun maker immunity. But the plaintiffs argued that law does not apply where a gun company has violated state or federal law, or where an accessory to a firearm is at issue.
Top Photo: Police walk outside the Tops grocery store May 15, 2022, in Buffalo, N.Y. The white gunman charged with killing 10 Black people in a racist mass shooting at a Buffalo supermarket is scheduled for arraignment in federal court on Monday, July 18, 2022, on an indictment that could make him eligible for the death penalty if he is found guilty. (AP Photo/Joshua Bessex, File)
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