Thread by @AkivaMCohen

Oh, hey, #LitigationDisasterTourists, a Plaintiff that accused YouTube of violating their First Amendment rights just had their case yeeted for all of the reasons that Trump, Berenson, and everyone else suing Twitter for banning them will.

Let's review

https://twitter.com/Jturk125/status/1488534865666527237

This particular plaintiff is a different band of merry plague enthusiasts than the RFK Jr. led (and Orwellian-named) Children's Health Defense: Del Bigtree's Informed Consent Action Network.

Oh, and claims against FB too.

BTW, I'd say that as a policy, "we're going to remove anything you post if it contradicts what the government says on the topic" is a TERRIBLE policy (yes, even on health info); have a standard other than "what's the government say", guys! But they get to have terrible policy

That's sort of the whole first amendment thing in a nutshell, isn't it? Private parties get to decide what to say, platform, promote, etc.

Sometimes people make terrible choices (see, e.g., Nazis, Nickelback, Patriots fans) but *they* get to make them.

"Freedom" only exists when it encompasses the ability to make bad choices

OK, poli-sci digression out of the way

Next the Court summarizes ICAN's allegations, which are the standard fare "but the gubbermint made em do it"

Next, the Court reviewed the filing dates and the standard by which motions to dismiss are decided. Disaster tour vets will be familiar with that standard, but just in case: The court assumes any fact pled by the plaintiff is true and draws inferences in their favor, BUT

Does not accept as true wild speculation or conclusory "deductions" about what "must have happened"

The Court then explains that it's not bothering to decide whether FB and YT have a first amendment right to moderate their platforms because as private companies, they can't violate anyone else's First Amendment rights in the first place, so that defense isn't needed

ICAN made the same arguments the Pandemic's Wrongest Man did: it's state action because it's either joint conduct by FB/YT and the government, or they're acting under government compulsion.

The court disposes of ICAN's arguments pretty easily. To get to joint action, you need some sort of delegation of authority, training, or joint operations; just sharing an interest in solving the same problem isn't enough

After reviewing the precedent above, and some other cases that are easily distinguishable, the Court finds a MUCH better and more on point precedent: Other Plague Rats v. FB, which was launched into the sun for the exact same reasons

Same problems for the "Rule of Decision" cases, which apply only when a private company adopts a standard specifically promulgated by the government. But FB &YT didn't do that, & ICAN's complaint specifically alleged that they didn't do that. More, they still had to use judgment

So the "joint action" test doesn't help Viruses R Us. How about the government compulsion argument?

(Don't worry, ICAN, not those types of needles)

Again, the Court walks through why this claim fails: this is a hugely high bar to clear, and ICAN jumps like a 90 year old

If there's one phrase you never want to see from a judge on a motion to dismiss your case (after "the motion is granted"), "chain of inferences" is probably it.

This deserves its own tweet because I'm SOOO glad this judge caught it:

content moderation is NOT against social media companies' economic interests. YT, Twitter, FB - none of them want to be the chans, because none of US want to be *on* the chans

In other words, social media companies have an absolute economic incentive to moderate content that a significant enough chunk of their users want them to moderate

Not that there's been a recent object lesson in that concept or anything

Anyway, the judge finishes up by explaining that even if none of that were true, ICAN would STILL lose, which is just piling on at this point and I love it

Finally, the judge says he will let ICAN take another swing at pleading facts sufficient to fix these problems, if it thinks it can (he has to, and it can't)

/fin