Cross-posted on Techdirt.
The Copia Institute filed another amicus brief this week, this time in Fields v. Twitter. Fields v. Twitter is one of a flurry of cases being brought against Internet platforms alleging that they are liable for the harms caused by the terrorists using their sites. The facts in these cases are invariably awful: often people have been brutally killed and their loved ones are seeking redress for their loss. There is a natural, and perfectly reasonable, temptation to give them some sort of remedy from someone, but as we argued in our brief, that someone cannot be an internet platform.
There are several reasons for this, including some that have nothing to do with Section 230. For instance, even if Section 230 did not exist and platforms could be liable for the harms resulting from their users’ use of their services, for them to be liable there would have to be a clear connection between the use of the platform and the harm. Otherwise, based on the general rules of tort law, there could be no liability. In this particular case, for instance, there is a fairly weak connection between ISIS members using Twitter and the specific terrorist act that killed the plaintiffs’ family members.
But we left that point to Twitter to ably argue. Our brief focused exclusively on the fact that Section 230 should prevent a court from ever even reaching the tort law analysis. With Section 230, a platform should never find itself having to defend against liability for harm that may have resulted from how people used it. Our concern is that in several recent cases with their own terrible facts, the Ninth Circuit in particular has found itself willing to make exceptions to that rule. As much as we were supporting Twitter in this case, trying to help ensure the Ninth Circuit does not overturn the very good District Court decision that had correctly applied Section 230 to dismiss the case, we also had an eye to the long view of reversing this trend.