Thread by @AkivaMCohen

OK, OK. Let's read that new Trump lawsuit*

*Yes, I know, he filed three of the same. One against FB, one against Twitter, and a third I haven't bothered to check. Unless someone tells me otherwise, I'm gonna assume they're carbon copies and just do the one.

Let's start with the caption, which is usually a pretty tame and meaningless listing of partie--OH MY GOD

There's just so much wrong here.

First of all, as others have noted, Facebook's terms of service require any user that has a dispute with them to bring those claims in California, and the only possible plaintiffs in this supposed class action would be users, so, umm ...

Seriously, if I can look at the caption of your lawsuit and know it's going to be dismissed for being brought in the wrong court without reading anything else of the complaint, not good.

Second, maybe this is a Florida local rule - hey, @EGalimidi9, @MTarich, is it? - but I've never seen the nature of the case identified in the caption.

Also, if you're bringing a First Amendment claim, you REALLY want to have a government actor identified as a defendant

Back in a bit

Sorry, had a meeting. Next, we have the fact that Trump identified his former title - 45th President of the United States - in the caption.

That's something you do when someone is suing *in their capacity as the holder of the particular title*, not as an individual!

Except, apparently, when you're dealing with a delusional narcissist

Last, on the caption ... what the hell is Mark Zuckerberg doing in this lawsuit? I mean I get that he runs facebook, but the corporate form is a thing and you don't get to sue individual shareholders or executives for wrongs allegedly committed by the corporation!

OK, that's more than enough nonsense for one caption. Let's look at the complaint itself

OK, maybe not enough about the caption.

This intro reads like Trump is the only Plaintiff (which suits his ego). But ... he isn't

Also, how many people do you think are "similarly situated" to the 45th President of the United States?

I'm not being snarky here, btw (much). The supposed 1st Amendment issues would be very different for someone like Trump than for you and me

So how many potential plaintiffs is Trump fairly representative of?

Yeah, we're running with the "this private company is really a State actor" thing.

It didn't work very well for Klownhandler in his MLB lawsuit and it's not going to work here. Facebook is not a state actor, full stop. It's not banning people at the behest of the US government

Also, these folks may want to read the rest of the Community Standards document they're quoting, the one where FB says "but we'll limit the fuck out of your free expression if we think it crosses a totally subjective line on one of these four vague axes"

I mean, sorry, guys, but FB has been expressly clear from the beginning of time that they reserve the right to yeet you off of their platform if they want to.

Nope. Nope nope nope nope nope motherfucking nope.

Section 230 was NOT enacted to protect minors from indecent material. It was enacted *specifically* to enable websites to moderate user-posted content however the hell they wanted to without fear that doing so would expose them to defamation liability

And it was 100% the right decision. Your local supermarket shouldn't be subject to defamation liability if someone from the community posts a flyer that says "I saw Sally Smith screwing her German Shepherd last Tuesday at 5:00 p.m."

And that's true even if the manager saw that post, didn't remove it, but removed flyers saying "ImaginaryMart Sucks, MythoShop has better prices"

There's really no difference between that and FB/Twitter - except for the fact that the shopping center conceivably has the physical ability to review all flyers posted on its bulletin board, and FB has no ability to physically review all posts on its site

No. They banned you for exercising your constitutional right to free speech in a manner that they disliked - which, as a private actor, is 100% an exercise of *their own* First Amendment rights

It's the EXACT same freedom that allows FB to ban neo-nazis, pedophiles, and "let's kill all the Republicans" groups.

Why is Donald Trump arguing that FB shouldn't be allowed to ban neo-nazis, pedophiles, and Republican-murder-fetishists? Is he pro murder of Republicans?

"But Akiva," you cry, "those things are against the law! It's different!" Actually, no. Only one is - murder. Being a pedophile is perfectly legal as long as you don't actually molest any kids. And being a neo-nazi is also perfectly legal

And oh, btw ... "let's kill all the Republicans" groups? Also a valid exercise of 1st Amendment rights as long as it's not likely to cause imminent lawless action.

So no, a "you can moderate things that are illegal" standard isn't one that matters

Oh My God.

No, you numpties, a ban from posting on a website is not a "prior restraint" on speech.

You might have noticed that your "restrained" speaker is able to get his message out to millions!

1) "They're doing the thing they always and expressly told me they reserved the right to do" is not, in my experience, a very useful legal claim

2) Is it just me or is that a terrific new euphemism?

The public conscience is all stirred up!

That's ... uh ... that's not what a delegation of authority by Congress means, guys.

Congress "delegates authority" when it designates some entity to do something Congress could constitutionally do. Like make regulations.

Passing Section 230 in the 1990s was not "Congress delegating to Facebook its authority to ban users" for many reasons, chief among them that Congress didn't have authority to ban internet users, but also because FB didn't launch until 2004

Paragraph 11 is not a thing. Paragraph 12 *is* a thing ... OF BEAUTY.

I mean look at it. "Countless FB users haven't been fortunate enough to be banned with an explanation"? Like me? And most of you? And all of FB's active, unbanned users?

I guess they meant to say "Trump got told why he was banned, but many others don't even know" and I guess my question is ... so what? Like ... does knowing why FB won't allow you on anymore help in some way? How?

This ... is this even in English?

Apparently, Facebook's reliance can censor, and that's a threat to the Republic

I mean, if Facebook can kick a SITTING PRESIDENT off its platform for falsely claiming the election was stolen and encouraging an insurrection, then clearly NOBODY can safely post that to FB ...

(it's not like the reach of the President made that way more of an issue than Joe Crusty from Alpharetta posting the same nonsense)

And ALSO, how can the Republic survive if the President can't encourage an insurrection on Facebook? It can't, which is why the US didn't actually exist until FB launched in 2004. RIP US-as-we-know-it, land of the free, 2004-2020.

LOL, no. This really does read like a bunch of personal injury lawyers Googled "reasons laws might be unconstitutional" and just drafted the complaint based on whatever words showed up in the top result.

The idea that Section 230 is facially unconstitutional is fucking lunacy, y'all. Lunacy.

"Facially unconstitutional" means "just look at the statute, it's obviously unconstitutional in application"

There's no universe where "no, you don't have liability for moderating" fits

What possible constitutional problem could there be from Congress limiting websites' liability for moderating user content? There's no constitutional right not to have private actors moderate your speech.

Aargh, typo: that was supposed to say "obviously unconstitutional in ANY AND EVERY application"

https://twitter.com/AkivaMCohen/status/1412880722122117122

I'm skipping "Jurisdiction and Venue" because these idiots haven't bothered dealing with the venue clause of the FB terms of service

OK, need to take a several hour break to deal with family stuff. Will be back

So who does Trump want to stand up for, here? Anyone kicked off of Facebook, for *any* reason

Holocaust denier? #Trump has your back. apnews.com/article/electi…

Are you an American ISIS supporter? #Trump thinks Facebook should pay you for blocking your account bbc.com/news/technolog…

Want to literally promote pedophilia on Facebook? #Trump literally wants to force Facebook to allow you to do that theindependent.sg/facebook-and-t…

And everybody on the right, cheering this on?

What they are saying, *quite literally*, is "better some kids get molested and neo-nazis be able to recruit than allow social media sites to decide what political content they'd like to host"

And folks ... no. That's not a good balance. The government shouldn't be able to bar you from making whatever political or legal arguments you want to make. Yes, that includes being a nazi or promoting child molestation as a good. But private actors absolutely should

When you start pontificating in my living room about why grown men sleeping with children is good, actually, and I throw you the fuck out so hard you bounce, I haven't infringed your freedom of speech; I've exercised my freedom of association.

You can still say what you want. But I don't have to listen to it, or provide you a platform for it.

And y'all, that applies whether I'm tossing you out the door for saying "vote Trump" or "Black Lives Matter" or "J-E-T-S Jets Jets Jets!" Whether your speech is good or bad ...?

Completely fucking irrelevant.

Skipping the "how FB works" part. Nope. No matter how many times you want to say it, no, Section 230 didn't "authorize" moderation. It's not like there were laws against moderation before Congress passed 230.

This is *literally* like saying that Congress "authorized" gun manufacturing when it immunized gunmakers from tort suits.

Did Congress make it an easier choice for sites to moderate, by removing a potential impediment? Absolutely.

Is that the same as "authorizing" it?

How? Why?

No, seriously, you're pressing a FIRST AMENDMENT claim against Facebook. It hinges on FB being a government actor. How in the world does "FB conspired with Twitter" get you closer to proving that?

BTW, litigation disaster tourist friends, if there's one takeaway from all this nonsense over the past year, I hope it's this: if your lawyer is throwing shit into his filings that doesn't have anything to do with the elements of your claim, you need a new lawyer

And if this was a *law* drafted this way, you'd have an argument it was void for vagueness. But it's not a law. It's your agreement that FB gets to define for itself what content it thinks fit in these vague categories. THAT'S PERFECTLY FINE

And, therefore?

Again, seriously, what the hell does this have to do with the claim that FB is a state actor?

I mean, let's be super clear about this. If FB was a government actor, none of the rest of this would matter. FB could have been enforcing crystal clear and consistent rules about what content it would allow, and Trump would STILL win, because

the First Amendment prohibits state actors from censoring speech because they don't like its substance.

And because (not if, because; this isn't an open question) FB is NOT a state actor, the First Amendment leaves it free to censor Trump, and anyone else, for ANY REASON IT CHOOSES.

Arbitrary, capricious, content based, it doesn't matter. They can do it!

And since this is a first amendment case and ONLY a first amendment case - not a claim that FB breached a contract by violating its own terms of service - literally the only question that matters here is "are you really arguing FB is a state actor?"

Any facts, allegations, or other content in this complaint is a ludicrous waste of time, and I'm going to skim right by it unless there's something particularly notable

So here's the basis for *Trump's* claim against Zuck: that he was *personally* involved in the decision to ban Trump. But remember, this is a class action seeking to represent a class of all users banned by FB. So Trump needs to be alleging that Zuck was personally involved...

in each and every individual user's ban.

That's ... uh ... that's not going to end well

THERE WAS LITERALLY A LAWSUIT ABOUT TRUMP BLOCKING PEOPLE ON HIS SOCIAL MEDIA

Yes, that was Twitter, not FB. But they're suing Twitter too. On the same theory. So this is a stupid fucking thing to allege is relevant

1) Linear fucking time, my dude. You were banned January 6, 2021 - *after* the elections

2) Linear fucking time, Part Deux: January 7, 2021 is a hell of a long time from most of these - except the one from Michelle Obama who

3) isn't in government

So if your argument is "FB and Twitter were coerced by government threats to legislate away Section 230" you're going to need to explain why that "coercion" didn't work until after you incited an insurrection.

Also, and maybe I'm being nitpicky here, but if the thrust of your complaint is "Section 230 is unconstitutional" maybe don't spend time arguing that threats to repeal it were part of the problem?

And the rest of this stuff is all after the ban, so it literally couldn't have coerced the ban, because <taps sign saying "linear fucking time">

Also - and folks, these lawyers have forgotten all about the other supposed plaintiffs and the whole class action thing - this stuff literally applies only to Trump. It's not something that anyone else is "similarly situated" for.

How in the world do they imagine they're certifying a class on this one? "FB was concerned that if it didn't ban Alfred Molineaux from Podunkton, PA, Congress would repeal Sec 230"??

Look, no Court is going to endorse the theory that "anything any industry does after a Congressional hearing is state action"

It's just not gonna fly, guys.

This really is the saddest possible "trying to make 'fetch' happen"

Yes, that was definitely, one hundred percent going to happen; as we all know and expect, the Democrats can simply pass whatever laws they want, whenever they want.

Aww, you poor thing

Sorry, have to pause to catch my breath; the human body was not meant to laugh this loudly for this long

1) CommuniCATIONS Decency Act. I mean, it's a small thing, but "know the name of the statute you're attacking" is pretty fucking basic, guys

2) No. Again, not what it was intended to do. (And yes, y'all, they mean 230 specifically)

1) Again, not the purpose

2) Also, irrelevant. "This law that Congress passed has not accomplished what Congress hoped it would" does not get you into the same goddamn solar system as "and therefore it's unconstitutional"

Yes. That's the way contracts work. "But I didn't really want to pay you what you asked for/agree to your terms, I just wanted your goods/services, so I shouldn't be held to my agreement" is not a viable argument

If you want to use Facebook, you need to use Facebook on Facebook's terms. If you don't want to agree to those terms, you just ... choose not to use Facebook. This isn't rocket surgery, people

Donald Trump attacks American institutions, example eleventy-billion and one.

But also ... so what? "The government likes what you did" is not something that makes you a goddamn state actor

Again, this isn't getting you where you want to go. A private actor saying "we're going to follow government guidelines for what reliable information is" doesn't thereby become a state actor. Private parties are allowed to choose to do that

I mean, you think "Mark Zuckerberg asks Tony Fauci for a video he can use to draw eyeballs" is some sort of smoking gun that *Facebook* was acting at *the Government's* direction?

No, seriously, someone explain to me what the conspiracyloonefarious reading of this email is? Why in the world do they think it's worth screenshotting?

But wait, there's more!

Did you catch that? The NIH *discussed Zuck's offer* and said "yeah, this would be a good way to get our message out, even better than doing a TV hit" and <gasps, faints, recovers, holds on to furniture to stay upright while typing> decides to seek clearance from Pence's office!

If this doesn't establish that FB is a state actor, nothing will!

You can tell it was "surreptitious" by the way that FB and the NIH did not immediately make their private emails public, unlike Trump who, as a true public servant, always disclosed all his communicat-- I'm sorry, I can't keep that up, not even for the bit

Mr. Ex-President, the call with Zelenskiy was surreptitious. The call with Raffensperger was surreptitious.

This was just non-public.

Weirdly, FB is not retaining a team of biologists to separately vet Covid claims, but is instead relying on the existing experts at the CDC. Did y'all know about this?

Again, this isn't a thing that makes someone a state actor; the state didn't compel FB to do this, FB *chose* to do it.

See prior tweet. Also, saying "it's bad faith" is just another Twiqbal problem; absent some set of facts showing FB doesn't actually believe it's removing misinformation - and my dude, your emails show the opposite - you can't just declare it and think you've met the elements

So ... this isn't censorship. Occasionally hysterically funny (especially the second image, which must drive him fucking mad), but not censorship

"We really disagree with Facebook's views on what comments are OK" is not a 1A claim

Suuuuuper relevant, guys

"Your Honor, the Defendant says it came to this decision by itself, look, here's the quote showing it's private action, not state action" is not the thing you want to be saying

"as followers" -lolerskates, as @DiegoATLAW would say

"We're not going to let you evade the ban by having friends and family post for you" is apparently somehow a problem?

(Note: redaction of those emails was mine; Trump posted them in the open)

The next few paragraphs go into how FB and its oversight board went back and forth on how to suspend Trump and what good policy would be. Interesting, and also completely irrelevant

Oh, hey, the other Plaintiffs make an appearance.

Jennifer Horton, the next plaintiff, posted anti-mask nonsense and had FB add a "yeah, this is false" warning. And that, again, is not censorship. But this takes my breath away

That's right, being told that you're reading something false is apparently censorship now.

It's doubleplusungood!

A shame you're not bringing a fraud case, then.

And by "shame" I mean "thank god, because that would be fucking stupid for entirely different reasons"

But truly, this has nothing to do with your "state actor" theory

Who sees the problem?

Do I really have to explain again why none of this is a thing? I'm not going to. Review the thread if you need a refresher

Are you fucking kidding me?

No, seriously, you fucking goddamn maroons.

In his official capacity? What "official capacity"? His official capacity as what? What state office does he hold?

Again, these ambulance chasers drafted this pleading by googling "first amendment litigation" it really couldn't be clearer.

Again, not a dig at PI attorneys

There are really really good PI attorneys out there. People who know the law, have legal skill, ethics, and integrity.

And because of that, would never have dreamt of filing this flaming trashbag of a case

The lawyers who signed this pleading, in contrast, and based solely on what I know of them from that fact, are missing at least one, and probably all four, of those critical character traits

Endless-laughter.gif

No, seriously. Congress saying "you can't sue private entities for internet moderation decisions, whatever those decisions might be" is *the very definition of* a content-neutral regulation

it doesn't define the scope of objectionable conduct. It doesn't limit any private actor's ability to define the scope of objectionable conduct. It *literally* applies with equal force to directly contradictory moderation decisions

If DemocratsSuck.com wants to delete all content that criticizes Trump, and TrumpSucks.com wants to delete all content that doesn't criticize Trump, both sets of moderation decisions are equally protected by Section 230

If it "results in systemic viewpoint discrimination" it's because private actors want to engage in such discrimination, as is their own absolute right under the First Amendment.

And again, that was the *express purpose* of Section 230; in the legislative history, you'll find the bill's authors arguing that sites with different political perspectives would moderate differently, and that was a good thing and the intent of the law was to allow it

Basically, this argument manages to be legally incoherent, factually unsupportable, and historically ignorant all at once.

They then go into their class action allegations & request for a unicorn that poops rainbows & sunshine; I don't have an interest in reviewing that nonsense when the whole case is a trashfire occurring in a train hurtling off the tracks on a cliffside over piranha infested waters

And with that, I'm done. Gnight all.

OK, I know I said I was done, but watch this clip for Greta's retired lawyer husband conceding that it's silly to allege that Congress passed Section 230 to grant social media companies the ability to censor when those companies didn't exist at the time

https://twitter.com/Acyn/status/1412962802180886528