Facebook Tells Court Laura Loomer's Defamation Allegations All Target Protected Opinions

from the speech-has-consequences,-Ms.-Free-Speech-Warrior dept

Last summer, alt-right "journalist" and no-scare-quotes buffoon Laura Loomer sued Facebook for uninviting her from its platform. According to her lawyer, the equally-buffoonish Larry Klayman, it was defamatory for Facebook to boot Loomer from the platform by designating her a "dangerous individual."

According to Loomer, her removal from Facebook entitles her to 5% of Facebook's net worth: roughly about $3 billion at the time of the suit's filing. Loomer sued in Florida but will now have to continue her lawsuit in California, where Facebook is actually located. And Facebook has fired back in its own filing, pointing out that designating users as "dangerous individuals" and performing other moderation activities is not only protected by Section 230 of the CDA, but by the First Amendment as well.

Facebook's motion to dismiss [PDF] says that decisions to label people as "dangerous individuals" is an expression of Facebook's opinion of that person and their posts -- something clearly protected by the First Amendment.

To the extent she alleges Facebook called her “dangerous” by removing her accounts pursuant to its DIO policy and describing its policy generally in the press, the law is clear that calling someone “dangerous”—or saying that she “promoted” or “engaged” in “hate”—is a protected statement of opinion. Even if it were not, Ms. Loomer cannot possibly meet her burden to prove that it would be objectively false to describe her as “dangerous” or promoting or engaging in “hate” given her widely reported controversial public statements. To the extent Ms. Loomer is claiming, in the guise of a claim for “defamation by implication,” that Facebook branded her a “terrorist” or accused her of conduct that would also violate the DIO policy, Ms. Loomer offers no basis to suggest (as she must) that Facebook ever intended or endorsed that implication.

Facebook states that Loomer was welcome to participate in the discovery process to find something that indicated the platform acted in bad faith by labeling her "dangerous." But she chose not to. And even if she had, it's unlikely she would have uncovered the defamation smoking gun she needs to continue suing Facebook.

At this stage, Ms. Loomer can no longer rely on the threadbare allegations in her complaint. Having failed to conduct discovery, there is no record evidence to suggest that Facebook subjectively knew she was not “dangerous” and/or did not “promote … hate.”

And, Facebook notes, we're not the only platform that believes Loomer is a net loss for third-party content providers, if not humanity itself.

Nor could she ever make this showing: given Ms. Loomer’s public statements and actions, and the fact that most major platforms have banned her for violating their policies, this is clearly an issue where, at a minimum, reasonable minds can disagree.

While Loomer has decided it's wise to continue a lawsuit without engaging in discovery, Facebook says there's plenty of evidence on the record -- including statements made by Loomer herself -- that her posts and actions violate the platform's terms of service, as well as those of other sites. The supposedly defamatory statements made by Facebook during its booting of Loomer are incapable of being proven false -- not when so much of Loomer's behavior makes them arguably true.

Facebook’s use of the phrases “dangerous” and “promotes hate” are “so debatable, loose and varying” in meaning that they are “insusceptible to proof of truth or falsity.” Ms. Loomer is, by her own admission, a controversial figure. She has called Islam a “cancer on society” and “cancer on humanity” and advocated laws prohibiting Muslims from serving in public office. She has advocated a “non Islamic form of [U]ber or [L]yft” so she doesn’t have to “support another Islamic immigrant driver.” She has described herself as a “#ProudIslamaphobe” and called Muslims “savages” on Twitter. And she has appeared with or expressed support for individuals who were previously banned by Facebook under its DIO policy for engaging in “organized hate.” While Ms. Loomer may not believe she is “dangerous” or has “promoted hate,” others disagree—as demonstrated by her admission that online platforms have widely banned her.

There's no way Loomer is going to win this lawsuit. But it probably doesn't matter much to Loomer and her lawyer. Klayman loves to handle performative lawsuits that do nothing for clients but allow them to preach to the converted using the federal court system as their pulpit. If that's all Klayman and his clients desire, even a loss can be considered a win. But a federal anti-SLAPP law would make these stunt lawsuits prohibitively expensive. And that's what this nation needs if we're going to rid ourselves of noisy nuisance lawsuits like these.

Filed Under: 1st amendment, content moderation, defamation, discovery, free speech, larry klayman, laura loomer, section 230
Companies: facebook


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  • icon
    That One Guy (profile), 20 Apr 2020 @ 8:07am

    Lawsuits as performance art, what a world we live in...

    Given there is absolutely zero chance she'll win this and not be rightly laughed out of court(barring the judge suffering severe head trauma before court anyway) I've no doubt the article is spot on and this is nothing more than yet another stunt-lawsuit designed not to win but simply to play up to gullible fools who look at someone like that odious individual and think 'yeah, that's someone on my side, how dare they kick her off!'

    I can only imagine how many lawsuits like this would vanish overnight were a federal anti-SLAPP law on the books and stunt-lawsuits actually carried some real risk to the ones filing them, though at the same time that's probably why it will be so very hard to get a federal anti-SLAPP law, because the absence of one is just ever so handy for certain people...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Apr 2020 @ 9:44am

    If that's all Klayman and his clients desire, even a loss can be considered a win.

    But there's a limit as to how many times she can actually do this. It's not as if once she gets her ass handed to her, she can keep bringing the suit over and over. It's all she's got left, and after that, she fades into the typical conservative "perpetual victim" status.

    Except at the end, she'll be a victim without a platform to bitch about it on.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 20 Apr 2020 @ 9:52am

      She’ll still have Fox News and OAN. Or Stormfront. Y’know, whichever.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 20 Apr 2020 @ 9:52am

      Re:

      But there's a limit as to how many times she can actually do this. It's not as if once she gets her ass handed to her, she can keep bringing the suit over and over. It's all she's got left, and after that, she fades into the typical conservative "perpetual victim" status.

      If only... no, once she gets trounced in court then it's time for the tv appearances, the interviews and articles where she gets to whine some more about how not only the dastardly social media has it out for the poor oppressed conservatives but even the courts are in on it, as evidenced by the fact that they repeatedly shot down her perfectly reasonable and sane case.

      Never underestimate the ability of a bigot with a persecution complex for finding new avenues to complain on, especially if said persecution complex is shared by others.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Apr 2020 @ 12:22pm

        Re: Re:

        Never underestimate the ability of a bigot with a persecution complex for finding new avenues to complain on, especially if said persecution complex is shared by others.

        Nope, I'm not underestimating her ability to continue whining about it. But when it comes to one of her enablers inevitably asking "...and OK Laura, what's your next step?" - her only answer is "...well, I'll keep coming on shows and complaining about it."

        Next show. Wash, rinse, repeat. And then the follow up - "...well, Laura it's been a month - is there any progress?" followed by the "I complained on 10 shows..." reply.

        This goes along with PauT's comment below she'll just run out of the ones who can give her lots of money to do so.

        Because there's no money in interviewing a person who's only next move is to complain. At some point, even fuckheads like Fox, InfoWars, and Stormfront need to pay the bills, and they know a dead-end idiot with nothing else in their pocket is a losing proposition as far as viewers/readers are concerned.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 20 Apr 2020 @ 2:01pm

          there's no money in interviewing a person who's only next move is to complain

          I dunno about that — after all, Fox gets plenty of viewers during Trump interviews.

          reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 20 Apr 2020 @ 10:29am

      Re:

      "But there's a limit as to how many times she can actually do this"

      Klayman gets paid by the next mark either way.

      "Except at the end, she'll be a victim without a platform to bitch about it on."

      Nah, she will still have those, she'll just run out of the ones who can give her lots of money to do so.

      reply to this | link to this | view in chronology ]

  • icon
    bhull242 (profile), 20 Apr 2020 @ 10:45am

    Correct me if I’m wrong, but doesn’t California have a strong anti-SLAPP law that would apply here?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 20 Apr 2020 @ 11:05am

      Re:

      I believe so, yes, and if so it would be downright hilarious to see Facebook bring that up and then watch Klayman/Laura run away as fast as possible once they realized that this lawsuit might actually cost them something.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 20 Apr 2020 @ 11:09am

    Masnick censors dissent that would point out that false-light defamation relates to the totality of a statement, not whether or not it is literally true.

    If I called a man "The kind of guy who'd beat his kids" I'm not lying, it's an opinion, but it can be defamatory just the same. If Facebook doesn't have a reason to call Loomer "dangerous" they might lose. At the least, they should explain how they formed that opinion from something other than a vacuum.

    reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 20 Apr 2020 @ 11:36pm

      Re:

      The supposedly defamatory statements made by Facebook during
      its booting of Loomer are incapable of being proven false -- not
      when so much of Loomer's behavior makes them arguably true.

      So much for vacuum.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Apr 2020 @ 3:30am

      Re:

      "false-light defamation"
      Not sure what this means

      "it's an opinion, but it can be defamatory just the same."
      By definition it is not the same

      I doubt that FB or any other private business has to explain anything to anybody about why they disallowed service to an individual. Sorta like the "right to work" allows employers to fire you and they do not have to state a reason, you can be booted and there is not reason necessary. That's the way it is.

      reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 21 Apr 2020 @ 9:11am

      Re:

      [Asserts facts not in evidence]

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 21 Apr 2020 @ 3:39pm

      Re:

      There is no such thing, at least as far as I’m aware, as “false-light defamation”. There is “false-light invasion of privacy”, which is inapplicable here. Stating an opinion that does not imply the existence of undisclosed and nonpublic facts cannot be actionable in and of itself, period.

      And no, saying that a particular man is “the kind of guy who’d beat his kids” would not be defamatory in itself.

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 21 Apr 2020 @ 3:41pm

      Re:

      Also, on what grounds do you allege that dissent is being censored by Masnick? I think it’s obvious that it’s not given that I can read you saying it here right now.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 22 Apr 2020 @ 2:15am

        Re: Re:

        He means that he's like all of these (typically) right-wing losers. It's not enough for him to have the ability to speak, he demands to have the right to use someone else's property, free of charge, to broadcast that speech - even if the person whose property he's using doesn't want them there.

        So, he's whining about people hiding his comment. It's kind of similar to those who complain about having their YouTube video age restricted - they still have their channel and people can still view it, but because that reduces their potential viewership they'll complain about it.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Apr 2020 @ 11:17am

    According to Loomer, her removal from Facebook entitles her to 5% of Facebook's net worth

    Loomer is (was) only one of 2.5B users. Facebook's annual revenue is $70.8B (in 2018). That' $28.32 per user. If Loomer is entitled to anything (and she's not) it would be $28.32. Her presence on the platform isn't worth any more than anyone else's.

    reply to this | link to this | view in chronology ]

  • icon
    Ed (profile), 21 Apr 2020 @ 8:06am

    Follow the money...

    Who is paying for her, for Nunes, for all the other reich-wing idiots to mount all these lawsuits? This is a terrorist plot against America, these attacks to foment dissent and anger amongst the "illiterati". Is it Thiel? Kochs? Mercers?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 21 Apr 2020 @ 1:16pm

      Hyperbole will destroy the world!

      While looking into who's paying for the various lawsuits would probably be a good idea you undercut yourself by using hyperbolic language like calling it a 'terrorist plot' when the likely truth is simply that it's people with persecution complexes abusing the legal system via lawsuits as PR stunts.

      reply to this | link to this | view in chronology ]

    • identicon
      Naughty Autie, 22 Apr 2020 @ 11:53am

      Re: Follow the money...

      "[...] for all the other reich-wing i####s [...]"

      We're not even that far into the discussion, and you've already proven Godwin's Law!

      reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 23 Apr 2020 @ 10:04am

        Re: Re: Follow the money...

        False.

        Mike Godwin himself has stated his law does not apply when the subject is literal Nazis.

        reply to this | link to this | view in chronology ]

        • identicon
          Naughty Autie, 24 Apr 2020 @ 1:00pm

          Re: Re: Re: Follow the money...

          True, actually. The Nazis are mentioned nowhere in the article.

          reply to this | link to this | view in chronology ]

          • icon
            Toom1275 (profile), 26 Apr 2020 @ 11:15pm

            Re: Re: Re: Re: Follow the money...

            In the non-extremist real world: false - as the subject of the article: Ms. Loomer, has proven not least of which with her fascistic attack on the first-amendment via frivolous lawsuit, plus her own statements as quoted.

            reply to this | link to this | view in chronology ]


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