Thinking out loud about clipping the wings of social media giants
Laura Loomer’s plight — banned from social media giant Twitter for accurately stating Muslim beliefs — made me think about a creative approach to lawfare.
I think we can take it as a given at this blog that social media giants are staffed almost entirely by Progressives and that these Progressives believe it is their mission to silence conservative thought. Indeed, after Trump’s election, it was only because slightly cooler heads prevailed that Google didn’t go full Soviet by silencing all political opposition on the world’s most used search engine. Considering the unheard of power the social media giants have, clipping their wings is a matter of grave public concern.
Some conservatives are arguing that the government needs to step in to control social media’s excesses. This is insane. Sure, it would be nice if a conservative administration could stop the ideological censorship that has become normative at social media giants such as Facebook and Twitter but (and these are seriously important BUTs) (a) even a conservative administrative, as we’ve seen, is staffed almost entirely by Leftists; (b) in 2 to 6 years we will probably have another of America’s famous political swings, this time in favor of a Leftist administration, which would out-Twitter and out-Facebook the media giants in censorship; and (c) no matter the administration, we should never let government control speech, ever.
So what can be done about the fact that the institutions that have a lock on most communication in America are trying to silence conservative voices? Well, I had a funny idea and I’m thinking out loud about it here. I repeat: I’m thinking out loud, not making an oracular pronouncement. Let’s see if I can articulate this in a logical way.
Facebook, Twitter, Google, etc., are making judgment calls about content. That is, none are functioning as a neutral forum for free speech, like a telephone company that does not police conversations or like a virtual town square. Sadly, the college graduates who staff these institutions learned during their four years at the mercy of Marxist professors and administrators that open forums and town squares are good only when speech is vigorously policed to align precisely with politically correct, social justice warrior approved values.
Significantly, for the social justice warriors who control social media, when they disapprove of conservative ideas, that disapproval does not take the form of the old-fashioned American statement that “I disagree with you, so let’s have a free market exchange of ideas.” Instead, because college left these social media employees with a Manichean world view, one in which progressive thought is good and conservative thought is evil, disapproval absolutely means, “Your ideas are evil and therefore you are evil.” I mean, take a look at Twitter’s speech code for “hateful conduct”:
You may not promote violence against or directly attack or threaten other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease. We also do not allow accounts whose primary purpose is inciting harm towards others on the basis of these categories.
[snip]
We recognise [sic] that if people experience abuse on Twitter, it can jeopardize their ability to express themselves. Research has shown that some groups of people are disproportionately targeted with abuse online. This includes; women, people of color, lesbian, gay, bisexual, transgender, queer, intersex, asexual individuals, marginalized and historically underrepresented communities. For those who identity with multiple underrepresented groups, abuse may be more common, more severe in nature and have a higher impact on those targeted.
The above isn’t about a broad parameters such as “no threatening people with violence” or “don’t sexually exploit children” (both of which, appropriately, Twitter bans). Instead, that rule says, “Don’t say anything we don’t like about people to whom we give preference [a stance that may be illegal under the Civil Rights Act of 1964] or we will label you as the ultimate evil and therefore bar you from the platform.”
If you want a perfect example of how this plays out, Michelle Malkin summarizes what happened to Laura Loomer, a small, feisty, young Jewish woman who has become a new media reporter:
Laura Loomer was suspended permanently from Twitter over the Thanksgiving holiday for this tweet — and I quote in full:
“Isn’t it ironic how the twitter moment used to celebrate ‘women, LGBTQ, and minorities’ is a picture of Ilhan Omar? Ilhan is pro Sharia(.) Ilhan is pro-FGM(.) Under Sharia, homosexuals are oppressed & killed. Women are abused & forced to wear the hijab. Ilhan is anti Jewish.”
Ilhan Omar is the newly elected Democratic Muslim congresswoman from Minnesota who is indeed pro Sharia. Omar equivocated on a state bill to increase penalties against female genital mutilation. It is a fact that gay people are oppressed and killed under Sharia. It an undeniable truth that women are abused and forced to wear the hijab. Omar has accused Israel of hypnotizing the world, attacked its “evil doings,” and has said she supports the boycott, divestment and sanctions movement against the Jewish state.
Twitter booted Loomer, who is Jewish, off its site for expressing her well-supported opinions, which the social media giant called “hateful conduct.” She has been labeled a “far-right activist” for her mainstream views. As she noted in a new statement posted to her website Tuesday:
“I am just one example of someone who has been banned for discussing issues on social media that big tech companies have deemed as untouchable. All across the world, people are being silenced, censored, and even jailed for having online discussions about Islam, immigration, jihad, and Sharia. I was banned for posting facts about Islam. In other words, non-Muslims are being subjected to Islamic blasphemy laws on social media, progressively.”
Loomer understandably sees the matter as one of truth and free speech, on the one hand, versus censorship, on the other hand. From Loomer’s point of view, the fact that everything she said about Ihan Omar is accurate — she is indeed a strong sharia advocate and a BDS supporter, which means she stands for principles that are antithetical to the Constitution, to women’s rights, to LGBTQ+ rights, and to the right of the world’s only Jewish state to exist (and for its people to be safe from genocide) — should be the beginning and the end of the analysis. Loomer was silenced for speaking the truth (without threats or exploitation) on about a public figure on an open forum.
I want to go one step beyond censorship, though. As Twitter, Facebook, et al like to say, they are private companies and the First Amendment applies only to government. While I assume we can get around that by enacting a law similar to the Civil Rights Act of 1964, which basically subjected private businesses to the 14th Amendment, there might be a simpler way to attack the social media giants by using a common law legal principle that already exists.
As I tried to explain when I quoted Twitter’s “hate speech” rule, in the Manichean world that is social justice media, Loomer is not being silenced for lying (because she didn’t); she’s being silenced because Twitter has labeled her a hate-filled, evil, racist, dehumanizing Nazi-esque person. Moreover, it has determined that Loomer is irredeemably evil because it didn’t just send her to the corner with a dunce cap for a few days. Instead, she is so evil that she must be banned forever.
Let me say this again: Through its stated standards and its conduct, Twitter has used its incredibly powerful information platform to tell the world that Loomer, a Jewish woman who accurately identified a Muslim’s politician’s openly stated beliefs, is essentially a Nazi.
Labeling as a Nazi someone who is not a Nazi is pretty much textbook defamation. I therefore wonder whether Loomer, provided she doesn’t sue in the 9th Circuit or in a state court in California, Hawaii, or Washington, etc., can make a good defamation claim. Since I’m most familiar with California law, I’ve dug up the California Civil Jury instructions, which have a decent statement of the common law definition of defamation. First, here’s the general principle:
[Name of plaintiff] claims that [name of defendant] harmed [him/her] by making [one or more of] the following statement(s): [list all claimed per se defamatory statements]. To establish this claim, [name of plaintiff] must prove that all of the following are more likely true than not true:
Liability
1. That [name of defendant] made [one or more of] the statement(s) to [a person/persons] other than [name of plaintiff];
2. That [this person/these people] reasonably understood that the statement(s) [was/were] about [name of plaintiff];
3. [That [this person/these people] reasonably understood the statement(s) to mean that [insert ground(s) for defamation per se, e.g., “[name of plaintiff] had committed a crime”]]; and
4. That the statement(s) [was/were] false.
In addition, [name of plaintiff] must prove by clear and convincing evidence that [name of defendant] knew the statement(s) [was/were] false or had serious doubts about the truth of the statement(s).
Actual Damages
If [name of plaintiff] has proved all of the above, then [he/she] is entitled to recover [his/her] actual damages if [he/she] proves that [name of defendant]’s wrongful conduct was a substantial factor in causing any of the following:
a. Harm to [name of plaintiff]’s property, business, trade, profession, or occupation;
b. Expenses [name of plaintiff] had to pay as a result of the defamatory statements;
c. Harm to [name of plaintiff]’s reputation; or
d. Shame, mortification, or hurt feelings.
Assumed Damages
Even if [name of plaintiff] has not proved any actual damages for harm to reputation or shame, mortification, or hurt feelings, the law nonetheless assumes that [he/she] has suffered this harm. Without presenting evidence of damage, [name of plaintiff] is entitled to receive compensation for this assumed harm in whatever sum you believe is reasonable. You must award at least a nominal sum, such as one dollar.
The fact that Loomer is a limited public figure — that is, Loomer has a high profile because of her Twitter presence and reporting activities — so that Twitter effectively shamed her in the public world by denominating her an intellectual Nazi, also provides a basis for a specific cause of action involving . . . yes, limited public figures:
[Name of plaintiff] claims that [name of defendant] harmed [him/her] by making [one or more of] the following statement(s): [list all claimed per quod defamatory statements].
Liability
To establish this claim, [name of plaintiff] must prove that all of the following are more likely true than not true:
1. That [name of defendant] made [one or more of] the statement(s) to [a person/persons] other than [name of plaintiff];
2. That [this person/these people] reasonably understood that the statement(s) [was/were] about [name of plaintiff];
3. That because of the facts and circumstances known to the [listener(s)/reader(s)] of the statement(s), [it/they] tended to injure [name of plaintiff] in [his/her] occupation [or to expose [him/her] to hatred, contempt, ridicule, or shame] [or to discourage others from associating or dealing with [him/her]];
4. That the statement(s) [was/were] false;
5. That [name of plaintiff] suffered harm to [his/her] property, business, profession, or occupation [including money spent as a result of the statement(s)]; and
6. That the statement(s) [was/were] a substantial factor in causing [name of plaintiff]’s harm.
In addition, [name of plaintiff] must prove by clear and convincing evidence that [name of defendant] knew the statement(s) [was/were] false or had serious doubts about the truth of the statement(s).
Actual Damages
If [name of plaintiff] has proved all of the above, then [he/she] is entitled to recover if [he/she] proves it is more likely true than not true that [name of defendant]’s wrongful conduct was a substantial factor in causing any of the following actual damages:
a. Harm to [name of plaintiff]’s property, business, trade, profession, or occupation;
b. Expenses [name of plaintiff] had to pay as a result of the defamatory statements;
c. Harm to [name of plaintiff]’s reputation; or
d. Shame, mortification, or hurt feelings.
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of defendant] if [he/she] proves by clear and convincing evidence that [name of defendant] acted with malice, oppression, or fraud.
It seems to me that, in a sane, non-9th Circuit, non-California or New York court, a jury of Loomer’s peers will review the evidence and conclude that (a) Loomer’s tweets were factually accurate; (b) Twitter’s permanent ban was the equivalent of accusing her of being an evil, racist Nazi; (c) that Loomer is not an evil racist Nazi so the statements are false; (d) Twitter knew or should have known that its labeling Loomer in this way was a falsehood; and (e) Loomer suffered damage to her personal reputation, her professional reputation, and her livelihood due to Twitter’s false, defamatory statements.
Because Twitter is driven by a Manichaen world view and intends to destroy anyone who disagrees with it, it should also be easy to prove malice. Moreover, given Twitter’s deep pocket, small or nominal damages won’t deter it from engaging in the same behavior in the future. If Loomer, or someone similarly situated, sues and wins, the damages should be of the kind that plaintiffs attorneys used to get from large corporations (oil companies, pharmacies, tobacco companies, asbestos companies, etc.) to teach them a good, hard lesson.
I’ve never worked on a serious defamation case (any defamation charges are usually just add-ons to the business disputes I’ve handled over the years), so I’ll be the first to admit that I may be seriously wrong with this theory. I’m therefore very interested in your takes on the subject, and am perfectly ready to be schooled (politely, of course) about the error of my legal thinking here. My core question the facts support common law defamation claims that will serve as lawfare without getting the government involved in policing speech (God forbid) and without tangling with constitutional First Amendment questions.
