Sue the Censors!

by Richard W. Morris

Did a Social Media Company Deplatform You?

Everyone knows we must not annoy, torment, pester, plague, molest, worry, badger, bully, harry, harass, heckle, persecute, irk, bullyrag, vex, disquiet, grate, beset, bother, tease, nettle, tantalize or ruffle those to whom fact is not the standard of truth - or else they will blackball, blacklist, excommunicate, exile, expel, shun, snub and deplatform you!

My friends, Big Tech is facing the horns of an enema. One horn is already being stuck to them by the "big guys" fighting deplatforming on First Amendment grounds, and I wish them well.  But, their fight will be long and expensive. Lawsuits like those are the Sport of Kings for the rich and famous.

Unfortunately, we little people can't afford the hundreds of thousands, if not millions, of dollars to hire highly specialized lawyers to play in that game. But Big Tech faces another horn- for us, the ordinary people, to get justice from the troupes of truthification. A method with centuries of traditional established law and vastly more lawyers qualified to handle the case, which means less cost.

Suppose the following situation: You have a social media account with Shut Up dot Com (SUC). The rules of SUC state they can de-platform you for violating their rules. You can't post misinformation, criminal activity, or advocate criminal acts. Their friends can do that, but you can't.

However, you post something that conflicts with SUC's political position, but which is not misinformation. Take note: even if what you say is in factual error, if you present it properly as your opinion, it is not misinformation-it is truth to state that it is your opinion.

Your post is not about committing or advocating a criminal act. Nevertheless, SUC flags your account or de-platforms you, claiming you violated their rules, but did not say which rule or what you did wrong.

What does that declare to the world about you? Is SUC calling you a criminal or claiming you advocate criminal activity? Is SUC saying you posted misinformation, i.e., that you are a liar?

If so, then you likely have a good old fashioned defamation case. In fact, in most jurisdictions, if someone claims you are a liar or criminal, that is libel per se - lawyer talk for the court automatically presumes that damages are due - and a boon for you.

Computers do not run social media platforms. People do. Somebody, a real person, had to personally decide either to de-platform you or to write an algorithm that did. That is the person who is personally, individually, responsible for defaming you: the dirty rat.

Most wronged people virtually ignore the individual dirty rat when a company such as SUC does something wrong. Instead, they focus on a legal doctrine that holds an employer legally responsible for the wrongful acts of an employee if the acts occur within the scope of the employment. They go after the big bucks.

One would think that the dirty rat's supervisor, and the supervisor's supervisor, are individually involved because those people approved the de-platforming either expressly or tacitly, and they are also responsible. And, as Harry Truman said, the buck stops here: at the CEO.

That's all well and good, but zillion-dollar companies can protect their employees by contracting with the employee to pay any judgment you might get against the individual. With protection like that, the dirty rat has no  incentive to play nice, quite the contrary.

But I think the very people who caused the damage should pay for the damage they cause. I want all the dirty rats who were responsible, the whole chain of command, individually, to pay.

The point is to sue the individual dirty rat involved as the primary defendant; secondarily, the supervisors; and only then, company they work for. Unless people bear the consequences of their acts, they will continue to commit harmful acts. In this case, they defame innocent people and prevent others from learning what you had to say.

Now for some strategy. To get the dirty rat, part of the lawsuit should seek a court ruling that the company protection plan is against public policy and, therefore, void. That means the dirty rat has to pay out of pocket, and the corporation cannot "cover" it.

I don't want to get too technical here, so the following is general information, but you should get an idea of what I am talking about. A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, "injury" means the invasion of any legal right, and "harm" means a loss or detriment an individual suffers.

Torts fall into three general categories, but we are only interested in two. We are concerned with intentional torts (the wrongs the dirty rat knew or should have known cause damage) and negligent torts (the dirty rat's actions were unreasonably unsafe).  

We want to push for the intentional tort. For one thing, intentional torts usually justify the award of punitive damages. Another big reason is public policy.

Public policy is a complex issue, but essential here. If a contract encourages an immoral act, such as committing a crime, it generally contradicts public policy. For example, public policy usually prevents insurance companies from issuing policies to cover intentional torts. Thus, one can see why it should be against public policy for an insurance company to insure a person against getting hurt while he is intentionally harming somebody else - an intentional tort.

Courts apply public policy on a case-by-case basis. That's good because it gets you in front of the judge on this issue.  

Suppose the court rules the dirty rat committed an intentional tort against you. In that case, the dirty rat cannot escape paying you by declaring bankruptcy.  The ruling may also invalidate the contract SUC had with the dirty rat to pay for the judgment you get. You might even get an injunction against the dirty rat prohibiting the dirty rat from doing in the future what the dirty rat did to you, to you or anybody else - but don't count on it.  

Ah, you may think, "My little lawsuit will not deter Big Tech." Maybe not, but a thousand such cases might. How about ten thousand or hundred thousand small lawsuits, each of which effectively ruins an individual employee? I want all the dirty rats who were responsible, the chain of command, individually to pay

While this is not the Chinese torture of death by a thousand cuts, it gives you an idea of what a bunch of little guys can do. How many lawsuits can SUC, or its employees, defend before it decides to operate properly?

The ultimate goal is to compensate you for your loss. But the by-product of the court imposing individual responsibility on the dirty rat may have a salutatory effect upon all the dirty rats employed by SUC. So you see, with your little lawsuit, you can grab the bully SUC by the tail, spin it around and look that oppressive SUC squarely in the eye.

Here are some words of caution. First, make sure you have a legally viable case. Second, do not ask for the moon. Instead, seek only reasonable damages appropriate to your situation.  The objective is not to bankrupt SUC at one go, merely to inflict a single small wound.

You must prove specific legal elements to bring a successful defamation claim. A lawsuit is technical, and failure to prove any one element means you lose. Therefore, you should hire a lawyer who practices defamation law.

If hiring a lawyer is not an option for you alone, find others and bring a single lawsuit so you can all split the cost. You might even start a GoFundMe account or a similar funding source. There is the slim possibility a lawyer would take the case on a contingency or partial contingency.

And, of course, another option is to do it yourself, perhaps with the help of a lawyer or paralegal. You could even sue without a lawyer, but that is very risky - depending on your circumstances, though, it may be worth a try.

If just reading articles on the Internet isn't enough, and you want to take a concrete action against the enemies of freedom - well, here's something anyone with a bit of determination and grit can do.  And you won't be alone.