On July 8, 2019, journalist Laura Loomer sued Facebook asserting claims for defamation. She seeks $35 million in compensatory damages and $3 billion (5% of Facebook’s current value) in punitive damages. The focus of the complaint is that when Facebook banned Ms. Loomer from its platform, it claimed her posts and reporting “promote or engage in violence and hate . . .” Facebook went on to bolster their decision by claiming that the “process for evaluating potential violators is extensive and it is what led us to our decision to remove these accounts today.” The statement left no doubt that Ms. Loomer promoted violence and hate.
In response to the complaint, Facebook is likely to file a motion to dismiss citing the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c), which states that a provider of an interactive computer service shall not be “treated as the publisher or speaker of any information provided by another information content provider,” nor shall it be held liable on account of “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Assuming Ms. Loomer can overcome this broad hurdle, the question will become whether Ms. Loomer has plead a prima facie case for defamation or defamation by implication, which is likely to be decided on the issue of what constitutes an actionable “opinion.” The implications this case could have for what constitutes an actionable opinion are perhaps the most interesting.
Of note, Facebook did not state the basis for its opinion. Thus, a reader is left to presume that Facebook’s investigation was thorough, based upon true facts, and accurate in its conclusions.
The complaint quotes a spokesman for Facebook who published comments describing factors considered to determine whether to ban a person. The factors center around “whether the person or organization has ever called for violence against individuals based on race, ethnicity, or national origin [or] . . . whether such person has been identified with a hateful ideology.” In her complaint, Ms. Loomer vehemently denies any such conduct.
Instead, she describes her reportage as opposed to people who promote “anti-Semitism, Islamic terrorism, political violence, and violence against homosexuals . . .” Ms. Loomer asserts that it is true Rep. Omar supports Sharia law, and further that describing aspects of that law is truthful and proper reporting. Obviously, Facebook disagreed.
The gist of Ms. Loomer’s complaint is that by banning her for reasons that are false, that are defamatory (subjecting her to hatred, ridicule and contempt), and are made with actual malice, Facebook is subject to a suit for defamation.
Can she win? In general, an “opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.” Milkovich v. Lorain Journal 497 U.S. 1, 20 (1990). It is Facebook’s opinion that Ms. Loomer engages in hate speech. Ms. Loomer will undoubtedly attempt to state that her factual comments and reporting cannot be hate speech. Facebook will defend by stating that as a private company, it has the right to suppress speech about another religion that might incite hatred or violence.
More importantly, Ms. Loomer will respond by stating that notwithstanding Facebook’s decision to ban her, its claim that she called for violence against others connotes a false statement of fact that is verifiably false. Thus, Facebook’s opinions may contain a provably false factual connotation to be actionable under Milkovich. If so, Facebook may be liable for defaming her, provided the CDA’s immunity is rendered inapplicable.
This will be a very interesting case to watch. If she can overcome the CDA, I think Ms. Loomer has a fighting chance.
Todd McMurtry is a nationally recognized trial lawyer, Harvard trained mediator, and advocate for the underdog. You can learn more about his work at https://toddmcmurtrylaw.com/.