from the you-can't-be-serious dept
Another day, another truly silly lawsuit. The "Liberty Justice Center" and the Tyler & Bursch law firm -- both of which seem to specialize in filing ridiculous lawsuits -- have now filed a lawsuit on behalf of a disinformation-spewing anti-masker against Joe Biden, Surgeon General Vivek Murthy, Facebook, and Twitter... because Facebook and Twitter locked his account after he posted an image claiming (incorrectly) that "masking children is impractical and not backed by research or real world data."
The image, which you can find in the lawsuit, but which I will not post here, posts some stuff that is true but uninteresting (such as the fact that sometimes people wear masks improperly) with stuff that is out of context and misleading (such as that studies don't have conclusive answers yet about the effectiveness of masks for kids) to try to make a claim that masking kids is a bad idea. But, like so much misinformation, it's telling a story by cherry-picking a few points out of context. Actual credible sources have broken down why these claims -- repeated frequently by anti-maskers -- are basically bullshit. Yes, there remain some unknown things and inconclusive science (though the blanks will be filled in soon). But the really "scary" stuff about harming development are mostly bogus. Of course, this is the way most misinformation works: take things out of context that you can point to as true, pool them together with a few other things, slip in a few exaggerations, and claim a big picture, the implications of which are ridiculous and not supported.
That's what the graphic Justin Hart posted basically did. And, Facebook and Twitter both reasonably felt that it was spreading potentially dangerous misinformation about masks and children. So both services gave him a time-out. Facebook suspended him for three days for violating its community standards. Twitter locked his account for violating its rules.
Hart is suing Biden, Murthy and other government officials on the laughably bogus argument that the account suspensions were ordered by the US government. The argument is that because the White House did use its bully pulpit to get angry at Facebook for leaving up misinformation, that somehow makes the government responsible for the actions against Hart (even though those occurred before the White House statements). As we noted at the time, the White House's statements were pretty stupid and short sighted. But they did not, in any way, amount to evidence that the White House and social media were colluding to censor people. Indeed, the whole point of the White House's statements were that Facebook wasn't taking down accounts.
The claims in the case are, as expected, silly. First you get a state action claim.
Facebook and Twitter engaged in state action when they removed posts like
Hart’s at the request of Murthy and Biden based on the viewpoint of those posts.
Facebook and Twitter worked in concert and/or conspiracy with Murthy and
Biden to deprive Hart of his First Amendment right to Free Speech.
Murthy and Biden affirmed, authorized, encouraged, and/or facilitated
Facebook and Twitter’s unconstitutional conduct of censorship.
Except, that's not what happened, at all. That's not how state action doctrine works. This is just silly.
Then, there's the claim that these companies violated Hart's free speech rights under the California Constitution. And, because every stupid content moderation lawsuit has to cite Pruneyard, so does this one. As a reminder, Pruneyard is a case about a shopping mall being required to allow speakers on the property, but the ruling and subsequent rulings have narrowed it down to the very, very, very specific circumstances of the Pruneyard Shopping Mall and basically nowhere else.
In Pruneyard Shopping Center, the California Supreme Court recognized that
the suburban shopping center—even ones that are privately owned—are an “essential and
invaluable forum for exercising” speech rights. 592 P.2d 341, 347 (Cal. 1979). The court
reasoned that shopping centers are where most people “spend the most significant amount
of [their] time in suburban areas where [their] needs and wants are satisfied” because
“shopping centers provide the location, goods, and services to satisfy [their] needs and
wants.”
And then the case misleadingly cites the other favorite, Packingham, which is limited to how the government cannot pass a law blocking people from the entire internet and has no impact at all on whether or not an individual service can kick someone off for violating terms.
The U.S. Supreme Court made a similar observation about the internet in
Packingham, 137 S. Ct. at 1735. There, the Court compared social media to a
“quintessential forum” for engaging in speech such as “a street or park.” It further found
that the most important forum today for speech is “cyberspace—the ‘vast democratic
forums of the Internet’ in general . . . and social media in particular.”
And with just those two barebones paragraphs, that ignore the realities of both cases, the lawsuit claims:
Because Facebook and Twitter provide an essential and invaluable forum for
exercising Hart’s right to Free Speech under the California Constitution, they violated such
right when they removed Hart’s posts and suspended his ability to speak on their platforms
Except, we've already done this and it's not how any of this works. As the 9th Circuit pointed out in the PragerU case:
PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech. See Halleck, 139 S.Ct. at 1928 (the Free Speech Clause “prohibits only governmental abridgment of speech,” and “does not prohibit private abridgment of speech”); Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (“the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state”). PragerU does not dispute that YouTube is a private entity that operates its platform without any state involvement.
These are not antiquated principles that have lost their vitality in the digital age. In Halleck the Supreme Court considered whether a private entity that operates a public access channel on a cable system is a state actor. 139 S. Ct. at 1926. The plaintiffs tested a theory that resembled PragerU’s approach, claiming that a private entity becomes a state actor through its “operation” of the private property as “a public forum for speech.” Id. at 1930. The Court rejected this argument. Such a rule would eviscerate the state action doctrine’s distinction between government and private entities because “all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints.” Id. at 1930–31. Instead, the Court reaffirmed that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Id. at 1930.
Importantly, private property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). YouTube may be a paradigmatic public square on the Internet, but it is “not transformed” into a state actor solely by “provid[ing] a forum for speech.” Halleck, 129 S. Ct. at 1930, 1934.
Notably, the Hart filing does not mention the PragerU ruling. Perhaps because it debunks every argument here.
There is another claim that is even dumber than those first ones. Count IV claims that Facebook and Twitter "committed promissory estoppel by not fulfilling their promise for Hart to use their platform for his business."
Facebook and Twitter made “a clear and unambiguous promise” to Hart that
he could use their services to communicate and network with other Facebook and Twitter
users
Except, no, they didn't.
Facebook and Twitter did not caveat this promise by announcing that they
would censor speech opposing masks.
They absolutely did. Both services include terms of service that Hart agreed to, which make it clear that he can be suspended for violating community standards and terms of service, and may have content removed for basically any reason at all.
I can only imagine that Hart's very silly lawyers pulled out this laughable argument after looking at the infamous Barnes v. Yahoo ruling, in which someone got around Section 230 because an employee at Yahoo promised to takedown some content. The court basically said that once the company promised to do that, its failure to violated that promise and that took precedence over Section 230. But that was a direct promise from an employee. Hart totally misreading (if he read at all) the terms that he agreed to is not a promise to let him spew misinformation.
There are also the usual padding claims about "negligent interference with a prospective economic advantage" and "intentional interference with a contract" which have no chance. The only claim in the lawsuit that is actually reasonable (though not very interesting) is the claim against two government agencies -- Health & Human Services and the Office of Management and Budget -- for failing to respond to his FOIA request in the 20 business days required by law. Of course, as we well know, FOIA requests often take years, but you can sue after the 20 days to try to force the issue -- so that claim seems to be the sole legit claim here, but the only remedy would be expedited processing of his FOIA request and nothing else.
This lawsuit may be useful for fundraising campaigns and silly pandering about how much of a "victim" Hart is, but it's not a serious legal complaint and the courts are likely to treat it with exactly the level of respect it deserves.
Filed Under: 1st amendment, common carrier, content moderation, free speech, joe biden, justin hart, promissory estoppel, vivek murthy
Companies: facebook, twitter
