The Alphabet Mafia, Social Media Companies, and Public Accommodations Laws

by Tori DeLaney, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

Social media companies have received bad publicity for discriminating against the Alphabet Mafia¹ (LGBTQ+² individuals).³ However, this discrimination is anecdotal because companies continue to obscure data around content moderation decisions.⁴ LGBTQ+ creators⁵ sued YouTube in 2019⁶ for targeting educational, personal, or otherwise innocuous LGBTQ+ content as “shocking” or objectionable.⁷ LGBTQ+ creators have been demonetized and shadow-banned as a result of this purported targeting.⁸ If a creator wants to connect with the Alphabet Mafia online without being demonetized or shadow-banned, they must resort to censorship hacks like misspellings, euphemisms, or emojis.⁹ Creators have failed to save innocuous LGBTQ+ content through litigation because social media companies are protected under Section 230 of the Communications Decency Act (“Section 230”).¹⁰ Section 230 immunizes social media companies from civil liability when the case relates to content moderation.¹¹

This article argues that LGBTQ+ content creators should be protected against discriminatory content moderation policies under state public accommodation laws; however, those protections will be difficult to invoke. Section II examines the manifestation of LGBTQ+ discrimination through social media content moderation before outlining historical and current public accommodation laws. Section III discusses why LGBTQ+ creators are unlikely to succeed against social media companies currently but suggests they may succeed if Section 230 is amended using public accommodation principles. Specifically, this Section discusses how public accommodation principles could shift the burden of proof onto social media companies while preserving their right to restrict content. Finally, Section IV concludes by reiterating what LGBTQ+ creators can do currently to avoid content restrictions while outlining the potential benefits of the Section 230 modification.

II. Background

The LGBTQ+ community has a history of being over-surveilled.¹² This history continues through the hyper-surveillance of LGBTQ+ content online.¹³ Public accommodation laws can be used to combat discrimination against LGBTQ+ individuals, but it is not clear how these protections could manifest online. This Section will explain how hyper-surveillance of LGBTQ+ content has manifested on social media platforms before articulating the history of public accommodation laws and how these laws or their principles could protect content online.

A. LGBTQ+ Surveillance

The LGBTQ+ community, like many marginalized communities, has been historically over-surveilled.¹⁴ Hyper-surveillance of the LGBTQ+ community continues through aggressive digital content moderation schemes that frequently confuse LGBTQ+ content with sexual content.¹⁵ Innocuous LGBTQ+ content is more likely to be demonetized,¹⁶ shadow-banned,¹⁷ or removed than explicitly sexual heterosexual, cisgendered content.¹⁸ Content users fight social media censorship in non-litigious ways by using misspellings, euphemisms, and emojis to reach fellow LGBTQ+ people and allies.¹⁹ However, these linguistical loopholes may only last a short time because social media platforms begin to scan for known work-arounds and because social-groups create more widely-embraced work arounds.²⁰ LGBTQ+ creators who want to challenge restrictive platform policies in court often fail because of First Amendment protections and Section 230 immunities provided to social media platforms.²¹ Courts have even allowed Section 230 immunity to prevail over state place of public accommodation laws claims when such claims were supported by “thin” evidence.²²

B. What is a Place of Public Accommodation?

Historically, public accommodation regulations promoted a “well-regulated society” through “community, public authority, and common good” rather than “individual entitlements.”²³ An individual’s duty to others mingled with their rights and privileges, meaning social governance through public accommodation rules depended on community relationships rather than the tension between individual rights.²⁴ Public accommodations providers could creation restrictions on who they allowed in their establishments but could not “pick and choose their clientele.”²⁵ Restrictions had to be “reasonable,” and if courts found the restriction “unreasonable” courts could impose liability on providers.²⁶ Places of public accommodations laws have since been codified at the local, state, and federal levels with an altered focus towards individual rights. ²⁷ Most codifications of public accommodation laws fall within anti-discrimination statutes and use the standards set out in Title II of the Civil Rights Act of 1964 (“CRA”).²⁸ The CRA states that places of public accommodation are places that affect commerce or that receive support through state action to discriminate or segregate members of the populous.²⁹ Additionally, the CRA and related laws provide a non-exhaustive list of establishments covered under the public accommodation provisions that typically include lodging, transportation, food services, and amusement.³⁰ Currently, federal public accommodation laws like the CRA do not provide individuals the right to public accommodations based on sex, gender, or sexual orientation.³¹ However, twenty-two states’ public accommodation laws do provide protection based on gender and sexual orientation.³²

III. Discussion

Ordinances, statutes, and courts have not yet addressed whether the internet is a place of public accommodation.³³ This Section discusses whether social media platforms are likely to be considered “places” for the purposes of public accommodation before determining whether LGBTQ+ people could litigate against social media companies’ restrictions using public accommodation law. Ultimately, this Section proposes an amendment to Section 230 based on common law public accommodation rules.

A. Social Media Platforms: A Place in Cyberspace?

Some scholars and judges believe internet “places” could be interpreted as places of public accommodation because of the platforms’ connection to community and commerce.³⁴ Most public accommodation statutes do not have language that restrict places of public accommodation to physical spaces.³⁵ Additionally, several courts have shown a willingness to consider cyber-spaces as places of public accommodation.³⁶ Existing case law and statutes would suggest laws around places of public accommodation could be applied to social media platforms.³⁷ For the following arguments, this article assumes social media sites are “places.”

B. LGBTQ+ Creators and Current Public Accommodation Laws

LGBTQ+ creators may be able to successfully allege discrimination under places of public accommodation statutes, but they are unlikely to receive a remedy because of the immunity provided to social media platforms under Section 230.³⁸ LGBTQ+ creator-plaintiffs are not protected by federal public accommodation laws; instead, they must argue under state public accommodation law.³⁹ Creators may succeed if they can show social media companies had the requisite intent to discriminate under state public accommodation case law.⁴⁰ However, creators will likely struggle to show intent because of the lack of transparency around platforms’ demonetization and shadow-banning decisions.⁴¹ Even if creators can show intent, social media platforms are likely to win against creators because of the protection provided by Section 230.⁴²

C. Amending Section 230 with a Public Accommodation Exception

Congress should amend Section 230 using common law public accommodation rules. Currently, creators bear the burden of showing a platform did not act in good faith when it restricted content.⁴³ Public accommodation policies would flip this burden onto social media companies, meaning companies could enjoy the right to regulate content but would bear the burden of showing the regulation was reasonable if a restriction were challenged.⁴⁴ Social media companies would no longer be allowed to hide behind vague community policies.⁴⁵ This change would require social media companies to be more specific and transparent about why content was restricted and opens them to liability if they cannot prove restrictions were reasonable.⁴⁶ This system would also encourage companies to more rigorously test AI (artificial intelligence) or other algorithms so they do not restrict content unreasonably (e.g., by mistake).⁴⁷

IV. Conclusion

LGBTQ+ content creators can continue to rely on euphemistic language to protect themselves against censorship and may be protected from discrimination on social media platforms under existing state public accommodation laws.⁴⁸ However, creators are unlikely to succeed on their public accommodation claims because Section 230 immunizes social media companies from civil liability when their content moderation practices cause harm.⁴⁹ Section 230 should be amended to require social media companies to make “reasonable” content restrictions and bear the burden of proving restrictions are reasonable if sued.⁵⁰ By shifting the burden of proof onto social media companies, courts can make liability decisions based on data rather than anecdotes.⁵¹ The amendment could also encourage entrepreneurial endeavors by prompting social media platforms to create more exacting algorithms, likely in tandem with other technical businesses.⁵²

Cover Photo by Karolina Grabowska on Pexels

Tori DeLaney

Tori DeLaney focused their undergraduate research on how "acceptable" gender identities fluctuated in novels and, by extension, society over time. Tori later worked as a Family Law and Guardianship paralegal where they observed the impact of gender on the law and vice versa. Tori hopes Law Review can be an avenue to examine the obvious and subtle ways gender and law mingle.

References

1
A euphemism created on social media to refer to the LGBTQ+ community without being shadow-banned or otherwise censored. Alphabet Mafia, Urban Dictionary, https://www.urbandictionary.com/define.php?term=Alphabet%20Mafia [https://perma.cc/Y5YF-NX9F].
2
Some members of the community have reclaimed the term queer, but it has not been universally reclaimed. Although I identify as a member of the community and do use the term personally, I will not be using the term outside of quotations to respect this divide within the community.
3
Rebecca Kowlewicz, How Social Media Impacts Consumer Buying, Forbes (Apr. 28, 2022, 7:30 AM), https://www.forbes.com/sites/forbesagencycouncil/2022/04/28/how-social-media-impacts-consumer-buying/?sh=1e2daf3337d5 [https://perma.cc/M6HR-NYD8]; see also Megan C. Hills, YouTube is Running ‘Ani-LGBT’ Ads Alongside Videos by LGBT Creators, Forbes (June 4, 2018, 7:45 AM), https://www.forbes.com/sites/meganhills1/2018/06/04/youtube-anti-lgbt-ads/?sh=6765ebfe4f73 [https://perma.cc/4ZKW-CZDZ]; Ari Ezra Waldman, Disorderly Content, 97 Wash. L. Rev. 907, 909 n.5 (noting how social media companies are often called out for restricting LGBTQ+ content and later apologize).
4
Waldman, supra note 3, at 935-36, 971-72, 974 (outlining the vague enforcement standards used by social media platforms as a means of restricting LGBTQ+ individuals while refusing to provide guidance on what does and does not violate site policies; noting how platforms cannot show content moderation is non-discriminatory because of its opacity); see Divino Grp. LLC v. Google LLC, No. 19-cv-04749-VKD, 2021 U.S. Dist. LEXIS 3245, at *1 (N.D. Cal. Jan. 6, 2021), dismissed 2022 U.S. Dist. LEXIS 180048, at *2, *28-32 (N.D. Cal. Sept. 30, 2022) (showing the use of vague language around content moderation decisions that are impacting LGBTQ+ creators and how YouTube only provides specifics if creators press for concrete information).
5
This article will only address content creators who receive (or intended to receive) money for their content rather than standard social media users.
6
After the first case was dismissed, the class filed a subsequent petition in 2022, which was also dismissed. The class questioned the constitutionality of Section 230 of the Communications Decency Act, and argued for remedies under CAFA, Lanham Act (false advertising claim), and the Unruh Act (California public accommodation law that allows remedy if petitioners can prove intentional discrimination in violation of the terms of the act; this claim was rejected because the federal court lacked jurisdiction). Divino Grp. LLC, 2021 U.S. Dist. LEXIS 3245, at *21-22, *34 (dismissing creators’ claims related to the First Amendment), dismissed 2022 U.S. Dist. LEXIS 180048, at *4-5 (dismissing for lack of adequate federal claims and lack of jurisdiction over state claim matters).
7
Waldman, supra note 3, at 909 n.5, 924 n.95 and accompanying text, 937-42, 946; see Divino Grp. LLC, 2021 U.S. Dist. LEXIS 3245, dismissed 2022 U.S. Dist. LEXIS 180048, at *28-32 (recognizing that the evidence of discrimination like call-center personnel claiming content was restricted because of “shocking content” mostly referring to “the gay thing,” when taken with other evidence, was enough to survive a motion to dismiss even if it is “thin”).
8
Waldman, supra note 3, at 924 n.95 and accompanying text, 946, 967-71 (explaining how existing transparency reports do not prevent censorship because no reasoning or specifics are provided, and creators are not given instructions on how to correct their content to align with content moderation rules); 47 U.S.C. § 230(c)(2) (2018).
9
These hacks are the latest euphemisms used by the LGBTQ+ community to find each other. Euphemisms are also used to discuss other “taboo” topics like homophobia, racism, race, suicide, and more. Thomas Moore Devlin, How Censorship is Creating a New TikTok Language, Babbel (Nov. 8, 2022), https://www.babbel.com/en/magazine/tiktok-language [https://perma.cc/2DZ2-KEBN]; Madeline Hiltz, What Does it Mean to be A ‘Friend of Dorothy’?, Vintage News (May 19, 2022), https://www.thevintagenews.com/2022/05/19/friend-of-dorothy-meaning/?chrome=1 [https://perma.cc/6YB4-SEX5]; Alphabet Mafia, supra note 1.
10
See Divino Grp. LLC, 2021 U.S. Dist. LEXIS 3245, at *13 (dismissing plaintiff-creators’ claim against YouTube under Section 230), dismissed 2022 U.S. Dist. LEXIS 180048, at *31-32, *54 (acknowledging a viable claim under the Unruh Act (California public accommodation law but ultimately barring the claim under Section 230 of the Communications Decency Act)); Waldman, supra note 3, at 917, 962.
11
47 U.S.C. § 230(c)(2) (2018).
12
Waldman, supra note 3, at 925-27, 940-42.
13
Id. at 912, 925-27 (articulating how content moderation reinforces heteronormative spaces and perpetuates historical surveillance practices over the LGBTQ+/nonnormative community).
14
Waldman, supra note 3, at 925-27, 940-42.
15
Id. at 912, 925-27.
16
YouTube’s AI has been known to demonetize more than one-third of all videos “with queer content in the title.” Id. at 941.
17
Id. at 949.
18
Id. at 942.
19
Devlin, supra note 9.
20
Id.
21
Waldman, supra note 3, at 909 n.5 and accompanying text, 962 (noting that “[p]latforms have leveraged the First Amendment and its marketplace of ideas metaphor to stave off protective regulation and deflect accountability for the harm they cause” (citing Julie E. Cohen, Between Truth and Power: The Legal Constructions of Informational Capitalism 76, 89-90 (2019)) (original quotation marks omitted)); Divino Grp. LLC v. Google LLC, No. 19-cv-04749-VKD, 2021 U.S. Dist. LEXIS 3245, at *1 (N.D. Cal. Jan. 6, 2021), dismissed 2022 U.S. Dist. LEXIS 180048, at *2 (N.D. Cal. Sept. 30, 2022); Hills, supra note 3 (demonstrating creator-platform discourse).
22
Divino Grp. LLC, 2021 U.S. Dist. LEXIS 3245, dismissed 2022 U.S. Dist. LEXIS 180048, at *31-32, *54 (acknowledging a viable claim under the Unruh Act (California public accommodation law) but ultimately barring the claim under Section 230 of the Communications Decency Act).
23
A.K. Sandoval-Strausz, Travelers, Strangers, and Jim Crow: Law, Public Accommodations, and Civil Rights in America, 23 L. & Hist. Rev. 53, 66 (2005).
24
Id.
25
Id. at 63, 66.
26
The duty to provide public accommodations initially supported travelers but later expanded to include the general public. Id. at 59, 60-63, 67, 71 (noting that innkeepers were not permitted to pick and choose their clientele but could impose rules that restricted guests based on behavior, such as criminality or drunkenness; recognizing public accommodation rules were not always well enforced and often resulted in the exclusion of entire classes of people).
27
Jon W. Davidson, A Brief History of the Path to Securing LGBTQ Rights, 47 Hum. Rts. 7, 8 (2022); Kathleen McGarvey Hidy, The Speech Gods: Freedom of Speech, Censorship and Cancel Culture in the Age of Social Media, 61 Washburn L.J. 99, 139 (2021); 42 U.S.C. §§ 2000a(b), 12181(7)(c); Sandoval-Strausz, supra note 23, at 69, 71 (describing the shift in public accommodations laws from communal to individualistic, from a situational privilege to an inherent right, and from a traveler-focused rule to a rule that applied to the general public).
28
This standard was predated by the Civil Rights Act of 1875. Davidson, supra note 27, at 8; 42 U.S.C. §§ 2000a(b), (c), 12181(7)(c); Conn. Gen. Stat. 46a-64(1); Minn. Stat. § 363A.03(34); see Sandoval-Strausz, supra note 23, at 59-60.
29
42 U.S.C. § 2000a.
30
42 U.S.C. § 2000a(b) (“Each of the following establishments is a place of public accommodation with this title . . . any motion picture house, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment”) (original quotation marks omitted); id. § 12181(7)(c); Conn. Gen. Stat. 46a-64(1) (“Place of public accommodation, resort or amusement means any establishment which caters or offers its services or facilities or goods to the general public, including, but not limited to, any commercial property or building lot, on which it is intended that a commercial building will be constructed or offered for sale or rent”) (original quotation marks omitted); Minn. Stat. § 363A.03(34) (“Place of public accommodation means a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.”) (original quotation marks omitted).
31
42 U.S.C. §§ 2000a(a), 12182(a).
32
Davidson, supra note 27, at 8.
33
Hidy, supra note 27, at 130; Biden v. Knight First Amendment Inst. at Colum. Univ., 141 S. Ct. 1220, 1225-26 (2021) (Thomas, J., concurring); Colin Crawford, Cyberplace: Defining a Right to Internet Access Through Public Accommodation Law, 76 Temp. L. Rev. 225, 250 n.108 and accompanying text (2003); see Wilson v. Twitter, No. 3:20-cv-00054, 2020 U.S. Dist. LEXIS 110800, at *1, *27 (S.D. W. Va. May 1, 2020) (explaining that commerce and public association has been significantly affected by online platforms and stating courts should not draw inflexible boundaries between physical and virtual space when determining whether something is a place of public accommodation); but see Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 541 (E.D. Va. 2003), aff’d, No. 03-1770, 2004 U.S. App. LEXIS 5495, 2004 WL 602711 (4th Cir. Mar. 24, 2004) (finding places of public accommodation are only physical places and structures). The Supreme Court of the United States has also discussed the physical/digital divide and how that could relate to public accommodation laws. See South Dakota v. Wayfair Inc., 138 S. Ct. 2080, 2092 (2018).
34
See Hidy, supra note 27, at 139-40; Wilson, 2020 U.S. Dist. LEXIS 110800, at *27; Kowlewicz, supra note 3.
35
42 U.S.C. §§ 2000a(b), 12181(7)(c); Conn. Gen. Stat. 46a-64(1); Minn. Stat. § 363A.03(34); Ohio Rev. Code § 4112.01(A)(9) (“Place of public accommodation means any inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public.”) (original quotation marks omitted).
36
Wayfair Inc., 138 S. Ct. at 1292 (stating the Court’s Commerce Clause precedents disavow a formalistic reading of place as strictly physical because it is out of line with modern economic realities); Knight First Amendment Inst. at Colum. Univ., 141 S. Ct. at 1225-26; Wilson, 2020 U.S. Dist. LEXIS 110800, at *27; but see Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d at 541.
37
See Hidy, supra note 27, at 139-40; Wilson, 2020 U.S. Dist. LEXIS 110800, at *27.
38
Divino Grp. LLC v. Google LLC, No. 19-cv-04749-VKD, 2021 U.S. Dist. LEXIS 3245, at *1 (N.D. Cal. Jan. 6, 2021), dismissed 2022 U.S. Dist. LEXIS 180048, at *2, *31-32, *54 (N.D. Cal. Sept. 30, 2022).
39
Divino Grp. LLC, 2021 U.S. Dist. LEXIS 3245, dismissed 2022 U.S. Dist. LEXIS 180048, at *31-32, *54; 42 U.S.C. §§ 2000a(a), 12182(a); Davidson, supra note 27, at 8.
40
See Divino Grp. LLC, 2021 U.S. Dist. LEXIS 3245, dismissed 2022 U.S. Dist. LEXIS 180048, at *31-32; Wallace v. Caring Sols., LLC, 278 A.3d 586, 601 n.3 (Conn. App. Ct. 2022) (noting that under Conn. Gen. Stat. 46a-64, courts should determine discrimination was the intentional, but-for cause).
41
Waldman, supra note 3, at 924 n.95 and accompanying text, 946, 967-71.
42
See Divino Grp. LLC, 2021 U.S. Dist. LEXIS 3245, dismissed 2022 U.S. Dist. LEXIS 180048, at *54.
43
See Divino Grp. LLC, 2021 U.S. Dist. LEXIS 3245, dismissed 2022 U.S. Dist. LEXIS 180048, at *25; Wilson, 2020 U.S. Dist. LEXIS 110800, at *41 (articulating various public accommodation standards that require the plaintiff to bear the burden of proving discrimination).
44
Sandoval-Strausz, supra note 23, at 63.
45
See Waldman, supra note 3, at 935-36, 971-72.
46
See Waldman, supra note 3, at 924 n.95 and accompanying text, 946, 967-71; 47 U.S.C. § 230(c)(2) (2018).
47
See Waldman, supra note 3, at 909-10, 909 n.5; Hills, supra note 3.
48
See Devlin, supra note 9; See Waldman, supra note 3, at 941-42; Divino Grp. LLC, 2021 U.S. Dist. LEXIS 3245, dismissed 2022 U.S. Dist. LEXIS 180048, at *31-32; Biden v. Knight First Amendment Inst. at Colum. Univ., 141 S. Ct. 1220, 1225-26 (2021) (Thomas, J., concurring).
49
47 U.S.C. § 230(c)(2) (2018); Divino Grp. LLC, 2021 U.S. Dist. LEXIS 3245, dismissed 2022 U.S. Dist. LEXIS 180048, at *54.
50
See Waldman, supra note 3, at 924 n.95 and accompanying text, 946, 967-71; Sandoval-Strausz, supra note 23, at 63.
51
See Waldman, supra note 3, at 924 n.95 and accompanying text, 946, 967-71.
52
See Waldman, supra note 3, at 909-10, 909 n.5, 924 n.95 and accompanying text, 946, 967-71; Hills, supra note 3.