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 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."

Contributing Author

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David Ruiz

David Ruiz is the in-house counsel reporter for the San Francisco-based legal affairs paper The Recorder. Ruiz has written for The Sacramento Bee,...

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