When Facebook, the planet’s by-far biggest and most influential social media platform, a veritable behemoth with some 2.5 billion users, brands you as “a dangerous individual trafficking in hate” – and bans you on those grounds – that’s about as massive a blow to both your reputation and your livelihood as can be imagined.
It’s almost like an informal verdict of an equally informal, but hugely powerful yet unaccountable court – and the situation would leave you with precious few options. Either accept the label and “revel” in the global infamy that the tech giant has just crashed upon you like a ton of bricks – or defend yourself, and sue. Turn to real courts, such as they are, and seek protection there.
The latter option is exactly what conservative US commentator and congressional candidate Laura Loomer decided to do when she earlier in the year filed a lawsuit against Facebook, alleging defamation of character committed against her by the tech giant.
And now, Facebook has filed a motion to dismiss the case.
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The argument used by those banned by Facebook and other giants has often been that their free speech rights guaranteed by the US Constitution’s First Amendment had been violated as they were silenced on these massive platforms; but the argument of the giants engaged in this type of “moderation” – or if you prefer, “censorship” – is that, as humble private companies, they don’t represent the public square, and are therefore not under any obligation to respect the First Amendment.
But in an impressive display of moral gymnastics, Facebook is now trying to claim First Amendment protections for itself. Mark Zuckerberg’s company is arguing in its motion to dismiss Loomer’s lawsuit that it has the right to call somebody a dangerous person and a hate peddler – whether or not that’s true – because the First Amendment gives Facebook that right.
Are some First Amendment rights more equal than others?
The controversy stems from Facebook’s decision to ban Loomer and a host of other conservative voices from its platform earlier in 2019. The company explained this by saying these public figures had violated its “Dangerous Individuals and Organizations” policy and did so by “amplifying or trafficking in hate.”
In the court filing, Facebook now further expands on its original decision to ban Loomer by going for vague language brimming with qualifiers – and then doubles down on the serious accusation that she actually is a “dangerous person.” Not necessarily because it’s true, as it turns out – but because Facebook thinks it has the right to protected speech under the First Amendment:
“She claims Facebook labeled her as a ‘dangerous’ person who promotes hate – yet, the First Amendment has long protected such statements because they are opinions that are not capable of being proven true or false,” Facebook states in its motion to dismiss.
Hot on the heels of this, in the same document, Facebook next denies Loomer’s own right to express her opinions that might or might not be “capable of being proven true or false.”
Next, Facebook cited more legal precedents like the e-ventures Worldwide vs. Google case, when Google was given the right to remove “the plaintiff’s websites from search engine results because the plaintiff had allegedly violated Google’s policies” – and that’s because the court held that the First Amendment “protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.”
To be a platform, or not to be a platform
Facebook’s mind-boggling claim that its First Amendment rights allow it to ban users for exercising their own First Amendment rights – and that’s not even the only puzzling and contradictory point from the filing.
Another is the way Facebook refers to itself as “a publisher” at one point – only to later in the same document invoke Section 230.
“(…) to the extent Ms. Loomer’s claim targets Facebook’s decision to deactivate her accounts, it is also deficient. Under well-established law, neither Facebook nor any other publisher can be liable for failing to publish someone else’s message. The First Amendment provides absolute protection for such decisions,” Facebook’s motion said on page 3.
But then on page 18, the motion refers to Section 230, a provision in the US Communications Decency Act (CDA).
It’s a fundamental provision that allows Facebook and its ilk safe harbor protections – however, explicitly as providers of internet services rather than as publishers, who would otherwise be legally liable for content posted by third parties, i.e., their users. And it’s a provision that’s been the very foundation of the phenomenal rise and success of social media giants – so it’s unclear why Facebook’s motion to dismiss Loomer’s lawsuit would play this fast and loose with that particular concept.
Particularly at this point in time, amid a brewing controversy over the legal status of social media platforms. Facebook’s latest slip of the tongue doesn’t seem likely to end up helping its case in this overarching debate. If anything, it will help those who say Facebook has grown too big and powerful and too demonstrably politically biased, to be allowed to continue to reap the benefits afforded to them by Section 230.
Read Facebook’s motion for dismissal here.