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.