Lawyer argues Meta can’t be held liable for gunmaker’s Instagram posts in Uvalde families’ lawsuit

LOS ANGELES (AP) — A lawsuit filed by families of the Uvalde school shooting victims alleging Instagram allowed gun manufacturers to promote firearms to minors should be thrown out, lawyers for Meta, Instagram’s parent company, argued Tuesday.

Nineteen children and two teachers were killed in the May 2022 shooting at Robb Elementary School in Uvalde, Texas.

The families sued Meta in Los Angeles in May 2024, saying the social media platform failed to enforce its own rules forbidding firearms advertisements aimed at minors. The families, who were present at last month’s hearing, did not appear in court, with a lawyer citing the back-to-school season. Many plaintiffs attended the hearing virtually, he said.

In one ad posted on Instagram, the Georgia-based gunmaker Daniel Defense shows Santa Claus holding an assault rifle. In another post by the same company, a rifle leans against a refrigerator, with the caption: “Let’s normalize kitchen Daniels. What Daniels do you use to protect your kitchen and home?”

The lawsuit alleges those posts are marketed toward minors. The Uvalde gunman opened an online account with Daniel Defense before his 18th birthday and purchased the rifle as soon as he could, according to the lawsuit. He also owned various Instagram accounts and had an “obsessive relationship” with the platform, at times opening the app more than 100 times a day, plaintiffs’ lawyers found in an analysis of the shooter’s phone.

Plaintiffs say minors can access gun content on Instagram

Meta attorney Kristin Linsley argued that the families provided no proof that minors, including the Uvalde gunman, even read the Daniel Defense posts on Instagram. She also said the posts didn’t violate Meta’s policies because they weren’t direct advertisements and did not include links to purchase any products.

Katie Mesner-Hage, representing the victims’ families, said the defense’s claim is “fundamentally unfair,” as the plaintiffs don’t have access to Meta data that would indicate whether the shooter encountered those posts. She added that if the content had landed on the shooter’s feed, as the plaintiffs allege, then Meta “not only knew about it, they designed the system so it would be delivered to him.”

“They knew more about him than anyone else on the planet,” she said.

Linsley said content advertising firearms for sale on Instagram is allowed if posted by “brick-and-motor and online retailers,” but visibility of those posts was restricted for minors under Meta’s advertising policies from the end of 2021 to October 2022.

“This is not a playbook for how to violate the rules. This is actually what the rules are,” Linsley said.

The plaintiff’s team, however, showed a fake profile they created for a 17-year-old boy earlier this month, through which they were able to search Daniel Defense’s Instagram account and see a post that included a picture of a gun, as well as a link to the gun manufacturer’s website.

When the link was clicked, the gun-maker’s website opened, and the team was able to select a firearm and add it to their cart, all within Instagram’s app — an experiment that refutes Meta’s assertion that posts relating to firearms aren’t visible to users under 21, Mesner-Hage said.

Linsley said in her rebuttal that the experiment was done this year and not in 2021 to 2022, which is when the policy she described was in effect.

The families have also sued Daniel Defense and video game company Activision, which produces “Call of Duty.”

Case hinges on social media’s responsibility for content creation

Linsley said the Communications Decency Act allows social media platforms to moderate content without being treated as publishers of that content.

“The only response a company can have is to not have these kinds of rules at all,” Linsley said. “It just gets you down a rabbit hole very quickly.”

Mesner-Hage argued Meta is not protected by the act because social media platforms don’t just host speech, but help curate it through its algorithms. Daniel Defense, she said, didn’t have to pay for ads to get free access to Meta’s analytical data through its business account on Instagram. That data shows the company which age bracket and gender engaged most with a specific post.

“Daniel Defense is not on Instagram to make friends. … They’re on there to promote their product,” Mesner-Hage said. “It’s not a paid advertisement, but I would struggle to describe this as anything other than an advertisement.”

The lawsuit alleges that firearm companies tweaked their online marketing to comply with Meta’s policies, including by avoiding the words “buy” or “sell” and not providing links to purchase, and that the social media company did not protect users against such strategies.

Last month, lawyers for Activision also argued that legal proceedings against them should be thrown out, saying the families allegations are barred by the First Amendment. The families alleged that the war-themed video game Call of Duty trained and conditioned the Uvalde gunman to orchestrate his attack.

Lawyers for the plaintiffs asked the judge to allow them to amend their lawsuit with the new information they presented Tuesday before ruling on the defense’s motion. The defense claimed that was unnecessary, as the case would not have merit even with the amendments.

The judge has yet to rule on Activision’s motion and did not immediately rule on the Meta case.