Man Sues Multiple Social Media Services, Claims Banning His Accounts Violates The Civil Rights Act

from the new-twist,-but-not-a-smarter-twise dept

Everybody wants to sue social media platforms for (allegedly) violating the First Amendment by removing content that most platforms don't feel compelled to host. Most of what's sued over is a mixture of abusive trolling, misinformation, bigoted rhetoric, and harassment. Plaintiffs ignore the fact that private companies can't violate the First Amendment. The First Amendment does not guarantee anyone the right to an audience or the continued use of someone's services.

Then there's Section 230 immunity, which shields platforms from lawsuits filed over content posted by users as well as their own moderation decisions. This immunity has angered everyone from the lowliest troll to the lowliest President of the United States of America. No number of complete losses appears capable of deterring the next hopeful plaintiff from lobbing a sueball into court with the hope that the presiding judge will be as batshit crazy as the allegations and arguments contained in the lawsuit.

Some litigants (and some of our stupider legislators) continue to insist platforms like Twitter are indistinguishable from phone companies. Ignoring the transitive nature of "carrying" fleeting communications, these hopefuls insist Big Tech is just Ma Bell and must be compelled to "carry" their content… forever. No court has agreed with this argument, the occasional word dump by the usually silent Justice Clarence Thomas notwithstanding.

Maybe the solution is to short-circuit this determination by presumptively declaring social media companies to be common carriers, like the plaintiff in this lawsuit, who's angry a number of online services deleted his Zionist conspiracy theory content. This suit [PDF], filed in Massachusetts, kicks things off by declaring platforms to be common carriers, using boldface type to drive the point home.

The defendants in this case are Twitter (drink!), Facebook (drink!)... um… LinkedIn (drink?), Medium (you have reached your limit of free drinks for this month), The Stanford Daily Publishing Corp. (please create an account to drink), and The Harvard Crimson, Inc. (I graduated drunk, he casually dropped into the unrelated conversation). Plaintiff Joachim Martillo insists at least the first three are common carriers. His legal arguments for this theory are mostly the subheads.

Defendant Twitter Inc (A Common Carrier, Defendant 1)

Twitter Inc (Twitter) operates as a platform for public self-expression and conversation in real time. The company offers various products and services, including the Twitter platform that allows users to consume, create, distribute, and discover content. Twitter provides common carriage for a fee and in exchange for work.

And so it goes for both Facebook and LinkedIn. The remaining defendants are not declared to be common carriers. Martillo also notes he has filed similar lawsuits (one for each defendant in this lawsuit) in [checks filing] Dorchester Municipal Court.

After quoting Justice Clarence Thomas' recent ramblings about how much "power" he feels these private companies have over public discourse, Martillo moves on to claim Section 230 of the CDA allows platforms to avoid their obligations under other federal anti-discrimination laws like the Civil Rights Act of 1964, the Americans with Disabilities Act, and… the Fair Housing Act (go home lawsuit, you're drunk).

Martillo actually makes the argument that a social media platform is a physical entity that should be accessible to everyone, using verbiage apparently cribbed from the Time Cube website.

It is not necessary to consider the public accommodation that Facebook provides to be virtual. Computer scientists use virtualization to describe complex electronic structures including transient gate state structures created by a logic device like a microprocessor. These structures are completely material…

Achievement unlocked: red pill consumed.

How does this all connect?

The plain text of the CDA (Communications Decency Act) provides no indication that the CDA is meant to override civil rights law.

Martillo is correct, but not in the way he thinks. The CDA does not allow platforms to engage in discriminatory hiring practices or discriminate against certain users because of their race or other immutable characteristics. (It also does not protect them from being prosecuted or sued for federal law violations.) This does not mean they cannot moderate content, even if some users might perceive their moderation efforts to be discriminatory. And that's the crux of Martillo's arguments. He feels he's been discriminated against because he is, shall we say, "anti-Zionist."

The Title II violation by Facebook seems to be directed primarily at Palestinians, Arabs, Muslims, and Diaspora Jews that reject Zionism. No other groups protected under the CRA seems to be subject to harassment by organized persecutors attempting to establish or to maintain a cultural hegemony.

[...]

The response [of Facebook] is more akin to the behavior of a restaurateur that bans blacks from his restaurant because the KKK has threatened him or his restaurant.

What follows from this is Martillo attempting to make the case that his pro-Palestinian content was taken down by the Zionist collectives that handle Big Tech social media moderation. That includes non-Big Tech defendants like sites run by Stanford and Harvard, which removed comments of his suggesting (in a circular fashion) that Zionists are evil, resulting in the removal of comments by alleged Zionists staffing those student sites.

Martillo also apparently startled LinkedIn by sharing content on its platform, forcing it to wake up its on-call moderators to do some moderating.

According to Martillo, these moderation efforts violate the Civil Rights Act, although he is unable to explain how he's being discriminated against. Nor does he specify which protected group he's a member of. There's a "denial of common carriage" claim in there (because of course there is) that Martillo feels is worth at least $3.65 million at the time of this filing.

Needless to say, this lawsuit won't go anywhere, even if the plaintiff feels Clarence Thomas's off-hand remarks on the power of social media companies mean something. Social media services aren't common carriers. Section 230 will immunize all of the defendants. And the First Amendment ensures they can't be forced to carry Martillo's content, no matter how fervently believes he's being discriminated against by a Zionist cabal.

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Filed Under: 1st amendment, common carriers, content moderation, discrimination, joachim martillo, section 230, zionism
Companies: facebook, harvard, linkedin, medium, stanford, twitter


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  • icon
    MightyMetricBatman (profile), 4 Aug 2021 @ 11:28am

    "Zionists"

    If the the plaintiff put what they really meant they would be even less sympathetic.

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

    • icon
      Thad (profile), 4 Aug 2021 @ 11:44am

      Re:

      Everybody knows what they meant.

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

    • icon
      Scary Devil Monastery (profile), 5 Aug 2021 @ 3:09am

      Re:

      That's a key tell already. The neo-nazis just keep holding on to their old keywords with white-knuckled grips, no matter how much they pretend otherwise. The word "zionist" is as always a clear indication the one saying it has a winged odal or swastika emblem hidden in his bedtable drawer.

      Ironic too, as "nationalist israeli" has, lamentably, been a thing for some time and valid and reasonable criticism of that nations policies does exist.

      But oh well, no one ever accused racists of being smart.

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

  • identicon
    Baron von Robber, 4 Aug 2021 @ 11:40am

    I had no idea racist asshole <redundant> was a protected class. No wonder the GQP is so behind this.

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

  • identicon
    Glenn, 4 Aug 2021 @ 11:49am

    I'd like to suggest a national social media holiday. For 24 hours once a year all social media sites must shutdown except for the page that displays a countdown of how many hours, minutes, and seconds till they're back up again.

    Some people really need a timeout.

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

  • icon
    Scott Yates (profile), 4 Aug 2021 @ 12:06pm

    Tim has really upped his writing!

    I literally laughed out loud several times reading this! Very well written and humorous! Nice job Tim!

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

  • icon
    That One Guy (profile), 4 Aug 2021 @ 12:13pm

    This is what you get when assholes are never told 'no'

    I swear if you could somehow harness the butthurt and self-entitlement coursing through assholes like this you could solve the entire planet's energy needs for the foreseeable future. ..

    'Asshole' isn't a protected class no matter how badly some people/groups really wish it was so breaking out anti-discrimination claims isn't going to get anywhere, and even the government isn't obligated to provide you a platform to speak from so you definitely have no rights to a privately owned one of your choosing.

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

    • identicon
      Anonymous Coward, 4 Aug 2021 @ 1:40pm

      Re: This is what you get when assholes are never told 'no'

      This contagious epidemic is caused by the buttselfenti virus.

      Originally identified and heckled from 2000 to 2010 as a mild disease which affected only a few in the extreme extreme left, it mutated somewhere around 2015 into a much more virulent and dangerous strain.

      The new strain infects people mostly on the right. It is much more contagious. Current estimates are up to two-thirds of the right are currently infected.

      Symptoms include a complete loss of reality, paranoia, susceptibility to cult actions especially blind faith following and an intense desire to believe conspiracy theories with no basis in reality.

      Major symptoms include butthurt and self-entitlement.

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

      • icon
        Scary Devil Monastery (profile), 5 Aug 2021 @ 5:57am

        Re: Re: This is what you get when assholes are never told 'no'

        "Major symptoms include butthurt and self-entitlement."

        You forgot "...and a tendency to quote The Communist Manifesto wherever they need the government to bail them out of being unpopular"*.

        What used to be the ideology of outright communists has become the rallying cry of the US republicans and alt-right, because they can't stand the fact that in the private property of other people, their opinions aren't welcome.

        Notable patients zero on this forum would be Koby, Shel10, Restless94110 and a dozen sock puppets of Baghdad Bob's.

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

        • identicon
          Anonymous Coward, 5 Aug 2021 @ 1:47pm

          Re: Re: Re: This is what you get when assholes are never told 'n

          ...Is Baghdad Bob Patient Zero?

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

          • icon
            Scary Devil Monastery (profile), 6 Aug 2021 @ 7:52am

            Re: Re: Re: Re: This is what you get when assholes are never tol

            ...or Typhoid Mary. When he called himself Bobmail, back on Torrentfreak, he was certainly in a class all to himself. The regular troll brigade simply wasn't that insane or persistent.

            He's still the exact same, using the exact same shit rhetoric...the reason I pinned him with the nickname of his old Iraq namesake.

            But now he has a lot of company since almost all of the alt-right and most republicans are demented enough to have adopted a similar mindset.

            There's either something in the water in the US, or malicious lunacy is infectious.

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

            • icon
              That One Guy (profile), 6 Aug 2021 @ 10:44am

              'Reality says I'm wrong so reality must be wrong instead.'

              My first thought would be to call them a bunch of hate-junkies, people who've spent their whole lives being told to Blame The Other for all their woes and who will do anything to defend that.

              If something goes wrong it's the fault of The Others and if your life isn't great well at least you've got it better than them, both ways for them to feel a sense of power and superiority without having to actually do anything other than support those pointing out who to hate and blame.

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

              • icon
                Scary Devil Monastery (profile), 9 Aug 2021 @ 5:33am

                Re: 'Reality says I'm wrong so reality must be wrong instead.'

                "My first thought would be to call them a bunch of hate-junkies..."

                You are probably more right than you know. The DHS did a study on former white supremacists and found that abstaining from hating people actually caused withdrawal symptoms.

                Grievance addiction, it turns out, is a thing.

                It explains a lot about how Trumpism got hold of the GOP. The base they have left are all addicted and the republican body politic are in full competition about becoming the sole supplier.

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

  • identicon
    Anonymous Coward, 4 Aug 2021 @ 12:14pm

    Wow dude, there are ways of being sympathetic to Palestinians (if that is your real game) that don't involve the crazypants shit.

    It's time to stop wasting the time and money of the courts to attack the Constitution in hopes that your Replacement Constitution Service will be installed.

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

    • icon
      Scary Devil Monastery (profile), 5 Aug 2021 @ 7:00am

      Re:

      "there are ways of being sympathetic to Palestinians (if that is your real game) that don't involve the crazypants shit. "

      There are indeed. The occupied territories aren't Israel's proudest moment. Unfortunately that means anti-semites everywhere seem to think that just because there is valid criticism to be issued against the Israeli government, there will be room for hating on "ze jews" as well.

      The person referred to in the OP couldn't care less about the palestinians. He's just in it to churn out a repetitive narrative of the global jewish conspiracy and how the elders of zion are eating gentile babies.

      As a result of which every sane social platform has been tossing him out and like every other entitled weak-kneed snowflake with an ego more brittle than carnival glass the bigoted shit-for-brains in question is trying to tell perceived authority he's being bullied for not being allowed to shit on the floor in someone else's house.

      "It's time to stop wasting the time and money of the courts to attack the Constitution..."

      Like most of the people screaming to the clouds about their rights I'm fairly sure he's never read that document. Or he'd have come across that one sentence in 1A stating unambiguously that "...congress shall make no law..." and realize that no one is going to defend his rights to stand in someone else's house and scream shit the owner of the house won't tolerate.

      These are the kind of people who think the declaration of independence is marxist propaganda. You really can't set your expectations too low.

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

  • identicon
    Anonymous Coward, 4 Aug 2021 @ 12:18pm

    Herewith a proposal for a new internet law:

    "If you EVER find yourself:

    --complaining about being "censored"
    --wondering whether you can get past spam filters
    --being excited over getting past spam filters

    You are that most despicable of perverse creatures, a spammer.

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

    • identicon
      Anonymous Coward, 4 Aug 2021 @ 12:43pm

      Re:

      Apparently said by someone whose never encountered one of Reddit's over-zealous moderators. Even if you have never attempted to spam in your life, some of those guys will silently censor you if they just happen to disagree with something you said, or for some other reason that is almost never explained. Every Reddit sub is moderated differently, and while most of them seem to have reasonable moderators, I would guess that between five and ten percent of their subs are moderated by guys that just love to censor posts or ban people, with no explanation and even if the post did not appear to violate any of the sub's rules. And the worst of it is that some of them are chickenshit cowards about it, because they use "shadowbanning" which means that as long as the person who wrote the post stays logged in, they have no idea that their post was deleted, because it still appears for them (and only for them).

      Because of that, I would not automatically assume that anyone who complains about censorship is a spammer. You have to put it in context, and maybe find out what they tried to post and whether it was an appropriate post for the place where they attempted to post it. This doesn't mean that a moderator can't be an asshole and just ban posts or people on a whim (if that were true Reddit would have to deal with quite a few of their moderators); they have the legal right to do that, but it doesn't make them any less a control freak (or worse).

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

      • icon
        Samuel Abram (profile), 4 Aug 2021 @ 1:05pm

        Re: Re:

        Apparently said by someone whose never encountered one of Reddit's over-zealous moderators. Even if you have never attempted to spam in your life, some of those guys will silently censor you if they just happen to disagree with something you said, or for some other reason that is almost never explained. Every Reddit sub is moderated differently, and while most of them seem to have reasonable moderators, I would guess that between five and ten percent of their subs are moderated by guys that just love to censor posts or ban people, with no explanation and even if the post did not appear to violate any of the sub's rules. And the worst of it is that some of them are chickenshit cowards about it, because they use "shadowbanning" which means that as long as the person who wrote the post stays logged in, they have no idea that their post was deleted, because it still appears for them (and only for them).

        I fail to see the problem with this. While that is indeed terrible and opaque moderation, it is moderation nonetheless. Luckily, Reddit is not the entire internet and there are lots of other places if you're tenacious enough to wish to go. I love the communities in Discord!

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

      • identicon
        Anonymous Coward, 4 Aug 2021 @ 1:57pm

        Re: Re:

        That sound you just heard was the joke sailing over your head.

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

  • identicon
    Anonymous Coward, 4 Aug 2021 @ 1:46pm

    But is it RICO?

    I admire his restraint.

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

    • icon
      That One Guy (profile), 4 Aug 2021 @ 2:00pm

      Re: But is it RICO?

      I was just waiting for that to be thrown in as well, I mean if you're going to off the wall bonkers in your lawsuit why would you not go all the way and add in a RICO charge too?

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

  • identicon
    Cyberkender, 4 Aug 2021 @ 1:53pm

    "This immunity has angered everyone from the lowliest troll to the lowliest President of the United States of America."

    The lowliest troll IS the lowliest President...

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

    • identicon
      Bobvious, 4 Aug 2021 @ 4:52pm

      Re: Schrödinger 's troll

      "The lowliest troll IS the lowliest President"

      Considering that we currently have the simultaneous observations that he is both president and NOT president (depending on which state of reality you occupy), this is a valid Schrödinger manifestation.

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

      • icon
        Scary Devil Monastery (profile), 5 Aug 2021 @ 7:11am

        Re: Re: Schrödinger 's troll

        Except that when you observe closely enough to gather any facts at all that state always collapses to him not being president.

        Trump's presidency is more like delirium. Picture the backdrop of a major trainwreck. 20 carriages all jackknifed on top of one another, half of them on fire, sirens in the background, an army of ambulances rolling up...and one man, right in front of the camera, holding up a sign where, written in pink crayon, are the words "There is no problem here!".

        The words on that sign are the analogue of the state where Trump is still president or will be reinstated as such.

        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, 4 Aug 2021 @ 7:47pm

    we already know social media can censor what ever they want.
    and there are a few good points for making social media a utility. especially now that we have fakebook partnering up with government and taking down what ever king government tells it to!

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

  • icon
    sumgai (profile), 5 Aug 2021 @ 8:27am

    Section 230 will immunize all of the defendants.

    Uh oh, it looks like some doo-doo is being stepped in.

    Section 230 does NOT "immunize" an entity from a lawsuit, it only provides a swift way to end such. Named defendants still have to respond in the first place, thus creating a small "cost center" on their balance sheet(s). S230 is intended to keep that cost center from growing outlandisly large, and that's the sum total of it's intent. It accomplishes this by codifying common sense: "Sue the correct party, not a party of convenience".

    Consider S230 to be sort of anti-SLAPP law for platforms that do not directly create the content they distribute. If they do create the content in question, in whole or in part, then S230 no longer applies - they are subject to any number of other laws that will act as a "Preparation H" for the plaintiff's alleged butthurt.

    What's really needed here are two things:

    a) Courts should just outright reject in totality any such lawsuit as matter of law, both case and statutory. They should also automatically sanction any attorney that tries this with "a new and novel approach that's sure to win". This is res judicata, and with all the exposure of such in recent years, no member of the bar can honestly claim a lack of knowledge hereof. (Footnote 1)

    b) S230 needs amending alright - an amendment that imitates anti-SLAPP statutes in awarding "costs and fees" to the prevailing party. (See "needed thing a", just above, where the plaintiff automatically loses, thus triggering additional expenses just so he/she can tell the world that his/her feelz have suffered a boo-boo.)

    Between these two "fixes", the Andy Worhol-ism going on should subside to an acceptable level.

    1: A plaintiff cannot be denied the right to seek redress, but he/she can be denied the opportunity to thwart established law based on alleged facts that have already been tested in other courts, and found wanting. But as usual, and as expected, this is subject to the Court's discretion.

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


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