A state court has tossed an Ohio man’s defamation and free-speech claims against Facebook. The Ohio Court of Common Pleas in Delaware County found fundamental defects with both claims in the man’s $20 million lawsuit.
On April 8, 2021, Frank Orders posted a picture on his Facebook page of Hunter Biden with two prostitutes. Facebook suspended Orders’ account for 24 hours and removed the photo.
On April 9, Orders posted comments about a Georgia voter-ID law with the phrase “do you think black people are too stupid to get an ID?” Orders claimed he was suspended for three days for this post and falsely accused of uttering hate speech, harming his reputation.
The Ohio court found “two fatal defects” with Orders’ defamation claim in its Aug. 17 decision in Orders v. Facebook.
First, the court held that Facebook’s statements were “statements of opinion and factual statements that are true.” Second, the court said, Orders failed to allege that Facebook’s statements to him were communicated to a third party.
Regarding the first point, the court noted that Facebook truthfully stated that Orders had violated its policy on nudity and sexual activity by posting the picture. Second, it said Facebook’s comments about Orders violating community standards were a matter of opinion. Further, the court said, a defamation claim requires that the allegedly defamatory statement be communicated to a third party. But Facebook’s statements about Orders’ account suspension were made only to Orders.
Orders’ free-speech claim fell to a similar fate, because Facebook is a private company and not a state actor.
“Courts have refused to find that Facebook and other social media providers are state actors for purposes of being subject to constitutional claims,” the court wrote.
The court also noted that Section 230 of the Communications Decency Act provides an “overarching impediment” to Orders’ claims.
“That provision provides civil immunity to Facebook and ‘interactive computer service’ providers like it who take action to ‘restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,’” the court said.
The Free Speech Center newsletter offers a digest of First Amendment and news media-related news every other week. Subscribe for free here: https://bit.ly/3kG9uiJ
David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech(2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).