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On Tuesday, February 16, a “flash mob” of teenage delinquents, allegedly incited by postings on Facebook, Twitter and MySpace, descended on Center City, wreaking havoc in the Macy’s at 13th and Chestnut Streets, pelting cars with snowballs, and frightening and knocking down passers-by. The carnage resulted in 15 arrests for rioting and disorderly behavior, and one high school student was also charged with assault and battery. Center City’s carefully rebuilt sense of confidence in itself was shaken, as even Governor Rendell (the architect of our resurgence in the mid-1990’s) has observed.

A sad day for Philadelphia, to be sure, but what makes it noteworthy for purposes of this blog is that the city is threatening to sue Facebook, MySpace and Twitter for failing to monitor the postings that, according to police, arranged for the mob to convene in the Gallery (the indoor shopping mall at 11th and Market Streets) for a fight. This raises the same website immunity issue under 47 U.S.C. § 230 in the Communications Decency Act (CDA) that I blogged about in connection with last summer’s lawsuit against Domelights.com.

The CDA immunizes a provider of an “interactive computer service” from liability for most state and federal claims arising from objectionable content posted by third parties: “No provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” See 47 U.S.C. § 230(c)(1)). Websites fall within the statutory definition of an “interactive computer service.”

The CDA immunity was enacted to promote robust and unfettered free speech on the Internet by insulating website operators and ISPs from defamation claims and other actions which are triggered by objectionable content originating with third parties and for which the site operator or ISP merely provides a forum or conduit. It would be difficult or impossible for the operator of a website with thousands of users to pre-screen all posts for tortious or other unlawful content, and the law does not require this. Courts have held the CDA immunity to preclude a wide variety of claims against websites relating to offensive, tortious and even dangerous activities of their users, including, in a recent decision involving MySpace, an alleged failure to implement security measures to prevent sexually predatory behavior by users against other users. However, a website runs the risk of being deemed an “information content provider” (and falling outside the scope of CDA website operator immunity) if it has a role in creating or soliciting the objectionable content.

Therefore, unless Facebook, MySpace or Twitter somehow had a hand in creating or soliciting any posts that incited the mayhem, it is difficult to see how the city could prevail in a claim for damages against them. This is how it should be. Social media provides networking tools and services to expand group communications, but like broadband and cell phone service, social media is morally neutral — it can be used for good (e.g., the Twitter Revolution in Iran) or ill (a mob of teenage thugs gathering at the Gallery for a fight).

If the operators of social media started losing expensive lawsuits because of their failure to monitor posts for hints of flash mob activity, they would have to charge for their services or go out of business. Internet privacy would probably also take a big hit as Facebook, MySpace and Twitter stepped up their monitoring and sharing of posts with law enforcement authorities. CDA website operator immunity was specifically intended to avoid such chilling effects on free speech.

More generally, the city of Philadelphia’s threats against social media betray the unfortunate mindset of big government nowadays that antisocial and self-destructive behavior must always be the fault, in whole or in part, of some business or society, not (or not simply) that of the persons engaging in the antisocial or self-destructive behavior. For example, childhood obesity is the fault of McDonald’s and other disseminators of “exploitive advertising,” not the fault of kids who eat Big Macs every day or their parents who let them. Plaintiffs’ lawyers aid and abet this erosion of personal responsibility and accountability by filing suits against businesses for failing to fulfill some fictitious duty to prevent every conceivable social harm.

At the risk of inciting political controversy, I respectfully disagree. The way to handle incidents like last week’s mayhem is not to sue technology companies on the West Coast, but to police known flashpoints such as the Gallery more aggressively and to mete out severe punishment for uncivilized behavior, which means jail time, not probation or community service. (In Philadelphia, the penalty for violating probation is often more probation, but that’s a separate issue.)

As a Center City resident who lives several blocks from the Gallery, I certainly share the city’s outrage over this latest flash mob incident. That is why I support the Philadelphia Police Department, the SEPTA transit police, and the Office of the District Attorney. But we’ve got to solve our own problems in Philadelphia, so let’s not pick on social media.