Every tragedy should be exploited. That’s the theory behind a string of Excolo Law and 1-800-LAW-FIRM lawsuits that seek to hold social media companies responsible for acts of terrorism. So far, not a single court has been willing to ignore Section 230 of the CDA or the First Amendment to give these opportunists any satisfaction. Notwithstanding some very bizarre arguments from one Ninth Circuit judge, it’s been a long run of shutouts for lawyers I fucking hope are working on contingency.
However you may feel about social media companies’ efforts to cut down on “terrorist” content, the reality of the situation is Twitter, Facebook, et al are not directly or indirectly responsible for acts of violence. Moderation at scale is impossible and allowing litigants to target social media companies directly is only going to result in lousier moderation, rather than whatever it is each litigant desires. (See also: numerous lawsuits about “anti-conservative bias.”)
This lawsuit is a particularly durable loser. Eric Goldman has the details at his blog. How many times do litigants need to be told “No?” Well, I told you once and I told you twice, but you never listen to my advice:
This lawsuit alleges that social media providers contributed to the 2016 Pulse Nightclub terrorist attack in Orlando that killed 49 people and injured dozens more. If that sounds familiar, that’s because those facts formed the basis of the Crosby v. Twitter litigation from Michigan, which failed in the lower court in 2018 and then on appeal to the Sixth Circuit in 2019. In a litigation move I’ll charitably characterize as tenacious, after the emphatic loss in the 6th Circuit, the plaintiffs’ lawyers immediately recruited new plaintiffs and filed a new lawsuit in Florida over the exact same terrorist attack. The do-over attempt works about as well as you would expect.
Three attempts. Three losses. And since these law firms apparently have unlimited money to blow, the lawsuit was refiled in a different jurisdiction. Not that it changed anything. It certainly didn’t make the lawyering any better. As Goldman points out, the courts didn’t limit themselves to criticizing the weak legal arguments. One court took time to chastise the law firm for its inability to follow the court’s formatting rules. It may seem petty but it’s important: if you can’t follow easy-to-follow rules, chances are you’re not paying that much attention when loading the court up with lawsuits so baseless they may as well be pro se.
Welcome to pandemic litigation, punks. Before informing the plaintiffs (yet again!) of the weakness of their arguments, the court reminds their representatives that this kind of thing isn’t making the court any more sympathetic to their arguments. From the decision [PDF]:
“Filing identical lawsuits in multiple district courts is abusive and wasteful of judicial resources.” Daker v. Bryson, No. 5:15-cv-00088-TES-CHW, 2019 U.S. Dist. LEXIS 27392, at *9 (M.D. Ga. Feb. 21, 2019). While Plaintiffs’ counsel may have selected different named Plaintiffs with which to do so, this is essentially what he has done. Despite the outcome of dismissal in the Michigan Case, Plaintiffs’ counsel filed the same lawsuit—with different Plaintiffs—here in the Middle District of Florida.
The court goes on to point out the obvious: a terrorist committed the act of terrorism (the Pulse nightclub shooting) but the plaintiffs have chosen to sue social media companies rather than the person who killed their loved ones. Suing the shooter’s relatives would be a similar waste of time as blood draws from stones are seldom effective, but suing social media companies isn’t the better option.
The court dismisses the lawsuit. But, inexplicably, it allows the plaintiffs to try again. So far, the plaintiffs have had six chances to compose an actionable claim. Somehow this court thinks giving them a seventh chance is in everyone’s best interest — even the court that just said this was a “waste of judicial resources.”
As discussed above, Plaintiffs’ counsel has essentially had six opportunities to assert the allegations in the TAC—two complaints in the Michigan Case and four here. In light of this, the Court would like to better understand from Plaintiffs why leave to amend should be granted after Plaintiffs’ counsel has been, as of yet, unable to cure the deficiencies in the TAC. Therefore, the Court will defer ruling on Plaintiffs’ request for leave to amend and will set this issue for a brief telephonic status conference.
Chances are there will be no arguments that move the court to give the plaintiffs leave to amend after this conference. But the door is still slightly open when it should have been slammed shut by this judge. So, this means more tax dollars will be wasted in addition to whatever fees the law firm has collected from the crime victims it’s exploiting.
This is not to make light of the tragic circumstances that led to these lawsuits. The families of the victims have suffered unimaginable damage. But this has nothing to do with Facebook, Twitter, or any other social media network. No court is going to find in their favor — not unless they want to do some legislating from the bench. These companies are doing what they can to limit the spread of content that might radicalize impressionable people. It’s an impossible job but someone’s trying to do it. And the only people responsible for acts of terrorism are the people committing acts of terrorism.