[UPDATE: A New York lawyer writes that the plaintiffs will be entitled to have the case heard by New York's highest court, if they so wish (as I assume they would): "I wanted to note that this case appears to be an automatic appeal as of right to the NY Court of Appeals due to the two dissenters. CPLR 5601(a). The decision seemed to indicate that the case is fully dismissed, which is the requirement for finality in NY. CPLR 5611."]
An excerpt from Patterson v. Meta Platforms, Inc., decided Friday by a panel of the New York intermediate appellate court, in an opinion by Judge Stephen Lindley joined by Judges John Curran and Nancy Smith:
These consolidated appeals arise from four separate actions commenced in response to the mass shooting on May 14, 2022 at a grocery store in a predominately Black neighborhood in Buffalo. The shooter, a teenager from the Southern Tier of New York, spent months planning the attack and was motivated by the Great Replacement Theory, which posits that white populations in Western countries are being deliberately replaced by non-white immigrants and people of color….
[S]urvivors of the attack and family members of the victims … [sued various parties, including] the so-called "social media defendants," i.e., [the companies responsible for Facebook, Instagram, Snap, Google, YouTube, Discord, Reddit, Twitch, Amazon, and 4chan], all of whom have social media platforms that were used by the shooter at some point before or during the attack…. According to plaintiffs, the social media platforms in question are defectively designed to include content-recommendation algorithms that fed a steady stream of racist and violent content to the shooter, who over time became motivated to kill Black people.
Plaintiffs further allege that the content-recommendation algorithms addicted the shooter to the social media defendants' platforms, resulting in his isolation and radicalization, and that the platforms were designed to stimulate engagement by exploiting the neurological vulnerabilities of users like the shooter and thereby maximize profits…. According to plaintiffs, the addictive features of the social media platforms include "badges," "streaks," "trophies," and "emojis" given to frequent users, thereby fueling engagement. The shooter's addiction to those platforms, the theory goes, ultimately caused him to commit mass murder….
Plaintiffs concede that, despite its abhorrent nature, the racist content consumed by the shooter on the Internet is constitutionally protected speech under the First Amendment, and that the social media defendants cannot be held liable for publishing such content. Plaintiffs further concede that, pursuant to section 230, the social media defendants cannot be held liable merely because the shooter was motivated by racist and violent third-party content published on their platforms. According to plaintiffs, however, the social media defendants are not entitled to protection under section 230 because the complaints seek to hold them liable as product designers, not as publishers of third-party content.
