In New York court on May 20th, lawyers for nonprofit Everytown for Gun Safety argued that Meta, Amazon, Discord, Snap, 4chan, and other social media companies all bear responsibility for radicalizing a mass shooter. The companies defended themselves against claims that their respective design features — including recommendation algorithms — promoted racist content to a man who killed 10 people in 2022, then facilitated his deadly plan. It’s a particularly grim test of a popular legal theory: that social networks are products that can be found legally defective when something goes wrong. Whether this works may rely on how courts interpret Section 230, a foundational piece of internet law.
In 2022, Payton Gendron drove several hours to the Tops supermarket in Buffalo, New York, where he opened fire on shoppers, killing 10 people and injuring three others. Gendron claimed to have been inspired by previous racially motivated attacks. He livestreamed the attack on Twitch and, in a lengthy manifesto and a private diary he kept on Discord, said he had been radicalized in part by racist memes and intentionally targeted a majority-Black community.
Everytown for Gun Safety brought multiple lawsuits over the shooting in 2023, filing claims against gun sellers, Gendron’s parents, and a long list of web platforms. The accusations against different companies vary, but all place some responsibility for Gendron’s radicalization at the heart of the dispute. The platforms are relying on Section 230 of the Communications Decency Act to defend themselves against a somewhat complicated argument. In the US, posting white supremacist content is typically protected by the First Amendment. But these lawsuits argue that if a platform feeds it nonstop to users in an attempt to keep them hooked, it becomes a sign of a defective product — and, by extension, breaks product liability laws if that leads to harm.
That strategy requires arguing that companies are shaping user content in ways that shouldn’t receive protection under Section 230, which prevents interactive computer services from being held liable for what users post, and that their services are products that fit under the liability law. “This is not a lawsuit against publishers,” John Elmore, an attorney for the plaintiffs, told the judges. “Publishers copyright their material. Companies that manufacture products patent their materials, and every single one of these defendants has a patent.” These patented products, Elmore continued, are “dangerous and unsafe” and are therefore “defective” under New York’s product liability law, which lets consumers seek compensation for injuries.
Some of the tech defendants — including Discord and 4chan — don’t have proprietary recommendation algorithms tailored to individual users, but the claims against them allege that their designs still aim to hook users in a way that predictably encouraged harm.
“This community was traumatized by a juvenile white supremacist who was fueled with hate — radicalized by social media platforms on the internet,” Elmore said. “He obtained his hatred for people who he never met, people who never did anything to his family or anything against him, based upon algorithm-driven videos, writings, and groups that he associated with and was introduced to on these platforms that we’re suing.”
These platforms, Elmore continued, own “patented products” that “forced” Gendron to commit a mass shooting.
In his manifesto, Gendron called himself an “eco-fascist national socialist” and said he had been inspired by previous mass shootings in Christchurch, New Zealand, and El Paso, Texas. Like his predecessors, Gendron wrote that he was concerned about “white genocide” and the great replacement: a conspiracy theory alleging that there is a global plot to replace white Americans and Europeans with people of color, typically through mass immigration.
Gendron pleaded guilty to state murder and terrorism charges in 2022 and is currently serving life in prison.
According to a report by the New York attorney general’s office, which was cited by the plaintiff’s lawyers, Gendron “peppered his manifesto with memes, in-jokes, and slang common on extremist websites and message boards,” a pattern found in some other mass shootings. Gendron encouraged readers to follow in his footsteps, and urged extremists to spread their message online, writing that memes “have done more for the ethno-nationalist movement than any manifesto.”
Citing Gendron’s manifesto, Elmore told judges that before Gendron was “force-fed online white supremacist materials,” Gendron never had any problems with or animosity toward Black people. “He was encouraged by the notoriety that the algorithms brought to other mass shooters that were streamed online, and then he went down a rabbit hole.”
Everytown for Gun Safety sued nearly a dozen companies — including Meta, Reddit, Amazon, Google, YouTube, Discord, and 4chan — over their alleged role in the shooting in 2023. Last year, a federal judge allowed the suits to proceed.
Racism, addiction, and “defective” design
The racist memes Gendron was seeing online are undoubtedly a major part of the complaint, but the plaintiffs aren’t arguing that it’s illegal to show someone racist, white supremacist, or violent content. In fact, the September 2023 complaint explicitly notes that the plaintiffs aren’t seeking to hold YouTube “liable as the publisher or speaker of content posted by third parties,” partly because that would give YouTube ammunition to get the suit dismissed on Section 230 grounds. Instead, they’re suing YouTube as the “designers and marketers of a social media product … that was not reasonably safe and that was reasonably dangerous for its intended use.”
Their argument is that YouTube and other social media website algorithms’ addictive nature, when coupled with their willingness to host white supremacist content, makes them unsafe. “A safer design exists,” the complaint states, but YouTube and other social media platforms “have failed to modify their product to make it less dangerous because they seek to maximize user engagement and profits.”
The plaintiffs made similar complaints about other platforms. Twitch, which doesn’t rely on algorithmic generations, could alter its product so the videos are on a time delay, Amy Keller, an attorney for the plaintiffs, told judges. Reddit’s upvoting and karma features create a “feedback loop” that encourages use. 4chan doesn’t require users to register accounts, allowing them to post extremist content anonymously. “There are specific types of defective designs that we talk about with each of these defendants,” Keller said, adding that platforms that have algorithmic recommendation systems are “probably at the top of the heap when it comes to liability.”
During the hearing, the judges asked the plaintiffs’ attorneys if these algorithms are always harmful. “I like cat videos, and I watch cat videos; they keep sending me cat videos,” one of the judges said. “There’s a beneficial purpose, is there not? There’s some thought that without algorithms, some of these platforms can’t work. There’s just too much information.”
After agreeing that he loves cat videos, Glenn Chappell, another attorney for the plaintiffs, said the issue lies with algorithms “designed to foster addiction and the harms resulting from that type of addictive mechanism are known.” In those instances, Chappell said, “Section 230 does not apply.” The issue was “the fact that the algorithm itself made the content addictive,” Keller said.
Third-party content and “defective” products
The platforms’ lawyers, meanwhile, argued that sorting content in a particular way shouldn’t strip them of protections against liability for user-posted content. While the complaint may argue it’s not saying web services are publishers or speakers, the platforms’ defense counters that this is still a case about speech where Section 230 applies.
“Case after case has recognized that there’s no algorithms exception to the application of Section 230,” Eric Shumsky, an attorney for Meta, told judges. The Supreme Court considered whether Section 230 protections applied to algorithmically recommended content in Gonzalez v. Google, but in 2023, it dismissed the case without reaching a conclusion or redefining the currently expansive protections.
Shumsky contended that algorithms’ personalized nature prevents them from being “products” under the law. “Services are not products because they are not standardized,” Shumsky said. Unlike cars or lawnmowers, “these services are used and experienced differently by every user,” since platforms “tailor the experiences based on the user’s actions.” In other words, algorithms may have influenced Gendron, but Gendron’s beliefs also influenced the algorithms.
Section 230 is a common counter to claims that social media companies should be liable for how they run their apps and websites, and one that’s sometimes succeeded. A 2023 court ruling found that Instagram, for instance, wasn’t liable for designing its service in a way that allowed users to transmit harmful speech. The accusations “inescapably return to the ultimate conclusion that Instagram, by some flaw of design, allows users to post content that can be harmful to others,” the ruling said.
Last year, however, a federal appeals court ruled that TikTok had to face a lawsuit over a viral “blackout challenge” that some parents claimed led to their children’s deaths. In that case, Anderson v. TikTok, the Third Circuit court of appeals determined that TikTok couldn’t claim Section 230 immunity, since its algorithms fed users the viral challenge. The court ruled that the content TikTok recommends to its users isn’t third-party speech generated by other users; it’s first-party speech, because users see it as a result of TikTok’s proprietary algorithm.
The Third Circuit’s ruling is anomalous, so much so that Section 230 expert Eric Goldman called it “bonkers.” But there’s a concerted push to limit the law’s protections. Conservative legislators want to repeal Section 230, and a growing number of courts will need to decide whether users of social networks are being sold a dangerous bill of goods — not simply a conduit for their speech.
