from the lololololololsuit dept
We recently discussed the case of a man who thought Facebook owed him $10 million per day in damages for moderating his posts in which he deployed the n-word. According to this person, Facebook violated about half of the Constitutional amendments when it decided — as a private company — that it would not serve as the plaintiff’s bullhorn while he shouted racist terms in a crowded social media platform.
But that was a pro se lawsuit, one the plaintiff — with no legal training or expertise (despite listing himself as “attorney-in-fact” on his Facebook profile) — thought would net him millions of dollars a day for being nothing more than his hateful self.
This lawsuit [PDF], however, has an actual lawyer behind it. And by actual lawyer, I mean a lawyer whose representation may be less useful than no representation at all. The lawyer helping the plaintiff bring this constitutional violation lawsuit against Twitter is David Yerushalmi, perhaps best know for being a bit bigoted himself.
Wikipedia helpfully notes this Jewish lawyer is highly critical of “liberal Jews, progressive elites, and black people.” So, those are his credentials. He is the co-founder of the “American Freedom Law Center,” which is really more about pushing its particular take on America than it is about protecting American freedoms. Here’s part of its mission statement:
AFLC is first and foremost a public interest litigation firm. It aggressively seeks to advance and defend our Nation’s Judeo-Christian heritage in courts all across our Nation.
Not sure what that has to do with suing Twitter on behalf of someone helping spread disinformation about COVID, but that’s where we are. Yerushalmi’s client is none other than confirmed quack Colleen Huber, last seen here trying to sue a reformed naturopath for informing readers that Huber’s anti-cancer advice (I hesitate to call it “medical”) would probably kill any cancer patient who took it.
Colleen Huber does not use conventional chemotherapy or radiation. She treats cancer with intravenous baking soda, vitamin C, and other “natural” substances, while instructing patients to cut out sugar from their diets.
Huber is a “certified” naturopath. The scare quotes are there for this reason:
Nowhere in any of her “research” that I could find did she write that she obtained written, informed consent from her patients/research subjects. Nor did she write that her “research” was approved by an Institutional Review Board (IRB) or was registered with ClinicalTrials.gov. These are fundamental ethical requirements for research on human subjects.
But don’t worry, Colleen Huber is a founding member of a naturopathic Institutional Review Board that has apparently approved her research.
Those are some of the words Huber sued about. She filed a defamation lawsuit in Germany targeting reformed naturopath/current skeptic Britt Hermes. The good news is Hermes won, despite being sued in a country where defamation can be (and very often is!) considered a criminal act.
Unsurprisingly, Huber is, shall we say… a vaccine skeptic. During the course of her Twitter affairs, she shared articles and made posts that were considered misinformation by Twitter. Twitter moderated her posts. Then it banned her permanently. That forms the basis for this hilarious lawsuit. For the moment the lawsuit resides in an Arizona federal court. (It will likely be moved to California once Twitter gets involved and invokes the terms it imposes on Twitter users, which include Twitter being able to move all federal legal action to its home state.)
Let us gaze upon this comical masterpiece of stupidity and wtf-ness… perhaps not in all of its glory, but at least the best parts.
You don’t have to be a lawyer (at least one not employed by the American Freedom Law Center) to realize what’s wrong with this opening statement.
Defendants Twitter and Dorsey, operating jointly and conspiring with Defendants Biden and other federal government officials in the Biden Administration (Defendant John Doe(s)), is engaging in viewpoint discrimination—the most egregious form of content discrimination—in violation of the First and Fifth Amendments to the U.S. Constitution.
Hint: it’s not just the verb conjugation.
While it’s true that Joe Biden could violate rights by getting personally involved in moderating Twitter accounts, it’s impossible for Twitter to violate rights, no matter how much viewpoint discrimination it engages in. The First and Fifth are safe when Twitter’s involved. Moderation efforts aren’t constitutional violations.
The lawsuit moves on to name the defendants and discuss the internet and its current position as the greatest communication tool ever invented. Then it attempts to pin constitutional violations on Twitter by completely (and conveniently) misreading the Supreme Court’s Packingham decision.
Consequently, social media, particularly including Twitter, is exceedingly important for worldwide human communication and thus provides important forums for that communication.
As, as stated by the U.S. Supreme Court: While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, and social media in particular. . . . In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.”
Packingham v. N.C., 137 S. Ct. 1730, 1735-36 (2017) (citations omitted).
While Huber and her lawyer may have misapprehended the gist of the Packingham decision (perhaps deliberately so), it’s unlikely a federal judge will. Packingham said the government couldn’t prevent people from using social media services, declaring a North Carolina statute that prevented sex offenders from using these services unconstitutional. It says nothing about private companies preventing citizens from using their services. And, unless Huber has a whole lot of evidence saying President Biden is directly participating in Twitter moderation decisions, there’s nothing in the Packingham decision that has any bearing on this case.
The idiocy continues directly after the citation of precedent that actually isn’t precedential when applied to this complaint.
Denying a person access to this important social media forum based on the content and viewpoint of the person’s speech on matters of public concern is an effective way of silencing or censoring speech and depriving the person or organization of political influence and business opportunities.
Due to the importance of social media to political, social, and commercial exchanges, the censorship at issue in this Complaint is an unmatched form of censorship.
Consequently, there is no basis for qualifying the level of First Amendment scrutiny that should be applied in this case.
Claiming something is the worst thing that has ever happened doesn’t make it legally actionable. There’s no First Amendment (or Fifth Amendment) right to a Twitter account, no matter how dire the phrasing in the complaint.
The lawsuit is also stupid about Section 230, seemingly considering this immunity a “power” social media platforms exercise with the government’s explicit blessing. But before we get to that, let’s pause and admire the heavy lifting the word “belief” is doing in this assertion.
Upon information and belief, Dr. Huber’s suspension from Twitter was a conspiracy and/or joint action between Twitter and unknown officials in the White House, sued herein as John Doe(s), who have engaged in the unlawful conduct alleged herein pursuant to their official government capacities under the direction and, ultimately, control of Defendant President Biden.
Do all the discovery you want, but I doubt you’ll find Huber’s suspension involved any input whatsoever from Joe Biden or his administration. Twitter is perfectly capable of banning people on its own, even sitting presidents. That Biden may have made comments (which are quoted in this suit) that platforms needed to do better containing the spread of disinformation is not even remotely close to the same thing as “conspiring” with Twitter to shut down Huber and other anti-vaxxers.
Now, here’s where Huber and her lawyer say dumb stuff about Section 230.
Section 230 permits content- and viewpoint-based censorship of speech. By its own terms, § 230 permits Twitter “to restrict access to or availability of material that [they] consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
Section 230 confers broad powers of censorship, in the form of a “heckler’s veto,” upon Twitter censors, who can censor constitutionally protected speech and engage in discriminatory business practices with impunity by virtue of this power conferred by the federal government.
The interest in encouraging freedom of expression in a democratic society outweighs any benefit of censorship conferred upon Twitter by the federal government.
Wrong. Wrong. Wrong. Wrong. Just absolutely wrong. Section 230 immunity is not a “power.” It simply shields platforms from being sued over moderation decisions or for content created by users. People who run into this immunity — which Huber certainly will — may think it’s a “power,” but it isn’t. It doesn’t give platforms new rights. It simply shields them from being used as an easy-to-sue proxy when users are angry about things other users have said or, in this case, when they’re angry about being shown the door by the owner of private establishments. In this case, it’s Twitter, rather than, say, the local bar, getting sick and tired of someone’s endless bullshit.
When you fail to understand the Constitution, the rights of private companies, Section 230 of the CDA, and prior Supreme Court decisions, you end up with word salad for section headers.
FIRST CLAIM FOR RELIEF (Twitter COVID-19 Policy—First Amendment Freedom of Speech)
Salad spinners engage!
Section 230 of the CDA, facially and as applied, permits Defendant Twitter to restrict Plaintiff’s speech, and the speech of those similarly situated, based on the content and viewpoint expressed by Plaintiff’s message, and the respective messages of those similarly situated, in violation of the First Amendment.
Section 230 has caused, and will continue to cause, Plaintiff and those similarly situated to suffer undue hardship and irreparable injury, entitling Plaintiff and those similarly situated to declaratory and injunctive relief.
This will go nowhere. Well, to be fair, it will probably go to a California federal court and then go nowhere. There’s nothing in this that can be sued about. If Huber doesn’t like being booted from Twitter — and she clearly doesn’t — she’s welcome to take her naturopath business elsewhere. But, sooner or later, she’s going to run out of receptive hosts. This isn’t Twitter violating rights or Joe Biden personally deciding Huber needs to STFU. It’s just business. And Twitter doesn’t want hers, for a number of reasons it’s under no legal obligation to justify.