Reluctantly Defending Facebook

The killer is dead.

Lest we forget too quickly, a man from Cleveland is dead, and his family heartbroken, because a nut case broke up with his girlfriend, or whoever, and decided to go out and shoot an innocent older man last week.  The case got a lot of air time on the news channels and the mainstream media, because the murderer used Facebook to post a video that he had already taken while the murder was underway.

Facebook took down the post as soon as it could, but it is facing large scrutiny now for some sense that it was, in a way, responsible for what happened.  And the case needs to go up the court system, if there is ever in fact a case, so that we can have a Supreme-Court level disposition of the liability of a media outlet -- and Facebook has certainly become one of those -- that is in some way used by a criminal to broadcast his or her deed.

Now -- I will be quite clear.  I do not use Facebook, and I do not expect to do so.  Apart from the time sink it appears to be for those who do use it, I am reluctant to have any more of my opinions out there for the world to see than those I choose to articulate, carefully, in this site.

And I definitely do not care for the very leftist types who run Facebook, at least not for their opinions and leftist leanings that I regard as failure traps.  So no, I am not a knee-jerk defender of Facebook, and if I ever say anything in its defense, you may assume that it comes from reason and not fandom.

Facebook has no liability in this case and should not be assumed to have any.

There, I said it.  And I will defend it.  I'm not a lawyer, by the way, so I can tell you that what I believe is not based so much in law and precedent, as it is based in rationality and fear of wrong precedent.

The killer in this case, by the time he even logged into Facebook, had already committed murder and filmed it.  So he went to Facebook as a murderer and posted a video he had already taken.

What is Facebook?  Well, that's a good question, and as a non-user I can't really answer it completely.  But as I do understand it, its members are granted a "site", on which they can post facts about themselves, pictures and videos, and also have a space therein where an ongoing conversation can go on about whatever the person and their friends choose to.

Did Facebook, the overall entity, or even the killer's own site, cause or abet the murder?  Well, no.  The murder was committed and the filming done, and only then did the killer, for whatever reason, post the video.  He could have posted to YouTube, or ABC or XYZ site.   Where he posted it is irrelevant to the murder.

And that is the point.  Facebook was a tool for self-aggrandizement (or whatever) in the actions of the killer in posting the video for the world to see.  But it didn't make him do it, and it didn't help him do it.  Absent Facebook, the murder almost certainly still happens.

So Point 1 is that Facebook is absolved of blame simply by not having been a factor in the action in any part.  Its "part", such as it is, was to have been the medium by which the killer exposed himself and made it possible to be caught, which he would have been, had he not killed himself first.  That's a good thing, I suppose, in that we know who did it.

Point 2 is the precedent point; to wit, given that Facebook was a medium and not a participant, to rule against them would be to open a Pandora's box of lawsuits in any remotely comparable situation involving a Web company, whether Facebook or YouTube or Pinterest or a bunch of them that I don't use.  Those sites are simply made available for users to employ, and the users do all the work (I'm setting aside their responsibility, which I believe they have, for information they themselves provide, like selective news feeds.  Those are actions they, not their subscribers, take, and they're liable as heck for doing that).

And that is why I'd like to see this case, if there becomes one, get quickly to SCOTUS.  The Web is a relatively new thing, not contemplated by the Founding Fathers (or by those of us of a certain age, either, in our remote youth).  The Court needs to decide what the responsibility of sites is, those that provide a forum, to those who either participate in the forum or are somehow affected by the forum's content.

Their opinion is vital to the determination of responsibility; were Facebook to be found complicit, such sites would dissolve in a heap of malpractice insurance, much as rationality in medical service in the USA has been crushed, under the costs of excessive and needless testing done to avoid the .000001% outcomes that result in malpractice suits.

I'm not a lawyer, as I mentioned.  So I can be free to say that a decision against Facebook would be a strangling outcome, while a well-written, broadly-applicable decision absolving Facebook would be a marvelous interpretation of what trial lawyers should stay far away from.

I am unsure there will be a suit.  The family of the murder victim was so good, so forgiving, that it is very possible they might decide to let it go and move on with their lives.  They are very religious people who did not seem interested in making a legal statement.

But I hope someone does and, curiously, it is to exonerate an entity that has not even been legally threatened as yet.  But the precedent needs to get out there, and here is a good case to do so.

Except it means "lawyers", and that makes lunch come up.

Copyright 2017 by Robert Sutton
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