Over the course of the five-day trial, Grote and McMurtry called nearly a dozen witnesses to the stand to explain that not only were the accusations on the website and in the Facebook posts false, but they had also caused one of the Plaintiffs to suffer from severe PTSD. As well, the Plaintiffs called Kent Campbell from ReputationX to testify to the distribution of the posts and resulting damage. They called the Defendant to the stand and asked him to explain the conspiracy to the Jury in his own words. He could not. In closing argument, Grote pointed out the absurdity of the alleged conspiracy and argued that the perjury claims boiled down to a question of whom the jury believed. After deliberating for roughly four hours, the Jury returned a verdict of $1,500,000.00 in favor of the Plaintiffs for their defamation claim.

In the punitive damages phase of the trial, the Jury heard arguments on whether the Defendant had been sufficiently punished for his conduct. Grote argued that he had not, requesting that the Jury award $2,000,000.00 plus attorney’s fees in punitive damages to deter the Defendant from similar future acts. The Jury deliberated for less than 30 minutes on punitive damages, returning a verdict of $2,500,000.00 plus attorney’s fees in favor of Plaintiffs. The highest demand from Plaintiffs prior to trial had been $1,500,000.00.

Every member of the jury had a college education. It was composed of five men and three women. They voted unanimously to find the Defendant liable for defamation and found that the Defendant had posted the comments with actual malice.

The post Driveway Dispute Leads to $4 Million Defamation Verdict Won by McMurtry and Grote appeared first on Todd McMurtry.

Trump’s Legal Action Against ABC News and George Stephanopoulos
A significant defamation lawsuit has been initiated by former President Donald Trump, targeting ABC News and George Stephanopoulos. The suit arises from Stephanopoulos’s statements during an interview, labeling Trump as a rapist. Trump’s legal team contends that these comments were not only false but were made with malicious intent, aimed at causing harm. This legal move comes amidst Trump’s ongoing denial of allegations made by writer E. Jean Carroll, coupled with his appeal against jury verdicts that found him liable for sexual abuse and defamation.

Legal Proceedings and Verdicts: The Case of E. Jean Carroll
The legal battle with E. Jean Carroll has seen Trump found liable for sexual abuse (though not rape as legally defined) with a federal jury awarding Carroll $88 million in damages. The distinction made by the judge—that Trump did ‘rape’ Carroll in the common understanding of the term, despite the jury’s conclusion—adds a layer of complexity to the case. This case has resulted in Trump facing liability for defamation on two occasions, with substantial financial implications.

The Challenge of Proving Defamation for Public Figures
The cases involving Trump underscore a critical aspect of defamation law: the challenge of proving defamation against public figures. In such instances, it must be demonstrated that the defamatory statements were made with actual malice or a reckless disregard for the truth. This heightened standard reflects the balance the law seeks to maintain between protecting individuals’ reputations and ensuring freedom of speech, especially in matters of public concern.

Conclusion
The recent defamation lawsuits, particularly those involving Donald Trump, George Stephanopoulos, and ABC News, serve as a potent reminder of the complexities surrounding defamation claims involving public figures. These cases not only highlight the legal challenges in proving defamation but also reflect broader issues related to media accountability and the rights of individuals. As legal professionals, staying informed about these developments is crucial, as they have significant implications for defamation law and its application in high-profile cases.

For those seeking more in-depth analysis and updates on these cases, referring to the cited sources provides a comprehensive understanding of the current legal landscape surrounding defamation.

Citations:
[1] https://www.politico.com/news/defamation
[2] https://www.independent.co.uk/topic/defamation
[3] https://www.newsweek.com/topic/defamation
[4] https://www.cbsnews.com/news/trump-suing-abc-news-george-stephanopoulos-defamation/
[5] https://www.cnn.com/2024/03/19/media/trump-sues-abc-news-george-stephanopoulos/index.html

This summary aims to provide a clear, no-nonsense overview of the latest developments in defamation law, particularly those involving high-profile figures and media entities. It serves as a resource for legal professionals, scholars, and anyone interested in the complexities and nuances of defamation cases in today’s legal and media environment. The information contained in this article is for general informational purposes only and is not intended to be legal advice. 

The post Defamation Legal News Roundup – March 22nd 2024 appeared first on Todd McMurtry.

Recently, under this state of emergency, President Biden announced a new unprecedented vaccine-related mandate that has the potential to impact up to 80 million workers in the United States. The first part of the mandate requires all federal employees to receive a Covid-19 vaccine. The second part requires all employers with more than 100 employees to ensure their organizations are fully vaccinated (or, any employee that remains unvaccinated, must produce a weekly negative test result before reporting to work). With each new Covid-19-related mandate, the overreach of government and ensuing impact on US citizens grows in intensity and implication. And, as each mandate from the President, a Governor, or a government institution is introduced, more and more people are asking if mandates are legally enforceable. Afterall, mandates aren’t laws, are they?

While it’s true that mandates are not laws in the sense that they have been introduced, debated, and passed by the legislative branch of the US Government; they are still legally enforceable, provided they meet a few specific criteria:

• They are instituted during a declared state of emergency
• The agency (or individual) instituting the mandate has jurisdiction to do so (for example, the CDC was able to issue the recent eviction moratorium because it was argued that displacing people during a pandemic would lead to more wide-spread exposure of Covid-19…they would likely not have similar authority to issue a mandate in response to a terror attack)
• The mandate is over when the state of emergency is over
• The mandate does not violate the Constitution of the United States of America

While the citizenry may not like a mandate, we must keep in mind that, once issued, compliance is expected and enforceable by law enforcement or the agency granted the power. When one of these measures appears to violate our civil rights, or the Constitution, the way to fight them is through legal channels. And, while it may seem appropriate to sue an employer for carrying out the order, the best way to challenge the order is to make your voice heard to your State Representative.

(A note about Executive Orders may be necessary as well, since much ado has been made about them since the beginning of the Trump Administration. An Executive Order is a directive from a President (or Governor) that manages the operation of governmental agencies. Like a mandate, it is not a law in the sense that it is not passed by a vote from Congress. Unlike a mandate, they can be written by the President at any time and will last until they are countermanded by another President).

Traditionally, the issuance of states of emergency have been largely regional (a hurricane in Florida does not necessitate a state of emergency in California), and short lived. Most often, state Governors will declare a state of emergency in light of a natural disaster, which helps release funds to help rebuild critical infrastructure, mobilizes FEMA, and makes it easier for various emergency agencies to quickly cut through red-tape in order to help. And, when the flood waters have dispersed, or the fire is under control, the state of emergency (and any related mandate) is brought to an end. In these cases, the constitutionality of mandates issued under states of emergency rarely come under scrutiny. But when a state of emergency lingers, and mandates become more prolific, the potential of governmental overreach increases at an alarming rate.

In the 1920s, a researcher named Theodore Erismann tested the brain’s ability to rewire visual input by strapping a pair of goggles to his colleagues head. In essence, these goggles turned his colleague’s vision upside down. At first, his colleague stumbled and fell as he struggled to position himself in a foreign world. But after ten days of slowly acclimatizing to the change of input, the subject no longer struggled to navigate his way through the day. His brain had gone through the process of reorienting how it processed the upside down information from his eyes. But, the fact still remained that he was seeing the world wrong because of the artificial lenses he was using. The world had not changed, his perception of it had.

As the current national state of emergency keeps getting extended, we must stand vigilant to ensure we don’t find ourselves as frogs in a pot as the water inches toward boiling as more and more mandates are imposed. Afterall, the laws of our nation were never intended to be issued by any single person (President or not) and were certainly not meant to be enacted by bureaucratic agencies. The exercise for laws to be debated, studied, voted on, and passed by a majority of both the House and the Senate is one of the processes that has kept America from slipping back into the type of monarchy from which our forefathers fought so hard to escape.

The system of Legislative, Executive, and Judicial checks and balances instituted by our Founding Fathers is still the system under which our nation operates. There is no “Except for Covid-19” provision in the Constitution. We must ensure we do not let this seemingly endless state of emergency flip our understanding of the constitution, or our acceptance of mandates which have not been fully vetted. If we don’t, we will inevitably see a day when a steady stream of crises serve to give unfettered power to those who may seek to exploit it. Afterall, isn’t it common knowledge that a leader, especially in politics, should never let a good crisis go to waste?

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Perhaps the most pressing question in the pantheon of recent vaccine discussions is whether employers have the legal right to require employees to get vaccinated. The short answer to this question is:

Yes. Employers do have the legal right to require an employee to be vaccinated. The slightly longer answer is that while employers have the right to require a vaccination, there are a few reasons why an employee may refuse, and in those instances, the employer is required to find ways to accommodate the employee, provided those accommodations don’t present “undue hardship” for the employer to meet.

While this may seem to be an over-reach by employers, the highly transmissive nature of Covid-19 and its variants are being used as justification for employers to provide a safe environment for all employees. It is important to remember that, while the Covid-19 vaccine is new, there are multiple instances in our everyday life where vaccine requirements are commonplace. For decades, most public schools require students to receive (or show proof of) certain vaccinations. And it is common for healthcare workers, depending on their role, to be vaccinated against certain highly transmissible and dangerous diseases as grounds for their employment. Of course, it is also important to note that these same vaccines have undergone rigorous medical and scientific testing before being widely distributed to the public – something the current Covid-19 vaccines have not been subject to, regardless of the recent FDA approval of the Pfizer vaccine.

Now that we’ve got all of the background out of the way, let’s talk about your rights as an employee if your employer mandates that you must get vaccinated. There are a few commonly asked questions I’d like to cover in order to help you be as educated and able to respond with appropriate options:

Q – Is it a violation of HIPAA for an employer to require proof of a Covid-19 vaccine?
A – No. HIPAA only applies to HIPAA-covered entities like healthcare providers, health plan providers, and healthcare clearinghouses. However, if you have a legitimate medical reason for not getting a vaccine, an employer may be in danger of violating the Americans With Disabilities Act of 1990 (ADA) if they force you to disclose a medical reason for not getting the vaccine. The ADA puts limits on how much an employer can make mandatory and that could ultimately force employees to reveal private information about mental or physical conditions.

Q – If my employer does require a Covid-19 vaccine, are there any circumstances where an employee can opt-out?
A – Yes. There are two key instances where an employee can refuse to be vaccinated. The first is when an employee has a pre-existing medical condition that would cause the vaccine to be harmful, the ADA stipulates that the employer must provide reasonable accommodations (more on that in a bit). The second is a religious exemption under Title VII, in which protections are in place to ensure no employee is discriminated against due to sincerely held religious, ethical, or moral beliefs.

Q – If I have an exemption under the ADA or Title VII, what does that mean for my employment?
A – Both the ADA and Title VII stipulate that employers are required to provide reasonable accommodations to employees with valid exceptions, provided the accommodation does not require undue hardship on the employer. In the case of Covid-19, some valid accommodations could be:

• Allow an unvaccinated employee to work from home, provided the entirety of their tasks could be accomplished within that set up
• Offer modifications to the employee workstation in order to reduce the potential of transmission of the virus
• Provide the employee with flexible hours to limit the amount of face to face interactions with colleagues
• Provide appropriate personal protective equipment (PPE) such as masks and hand sanitizer

The key to these arrangements is the term “undue hardship” for the employer. If an employer deems the accommodations to be detrimental to the working environment, or too limiting for the employee to be productive, they are able to pursue termination based on the original medical requirement for the vaccination.

It is also important to note that the U.S. Occupational Safety and Health Administration (OSHA) recently released new guidance in April that any adverse reactions to a Covid-19 vaccination is considered work-related and therefore must be recorded by the employer.

For those struggling with what to do when faced with an employer’s mandate to get vaccinated, it’s important to know what options they have. However, regardless of what the law states, a troubling division is being created between those who willingly rushed to receive one of the vaccines and those who aren’t convinced of the safety or effectiveness of the newly developed treatments. Even more worrisome is the rhetoric being used by political leaders who see the vaccine as a moral obligation to society. In fact, the discussion around vaccine mandates is straying further and further from data, and inching dangerously close to the desire to implement laws meant to enforce actions – by restricting the unvaccinated from engaging in fundamental parts of society. This week alone, we have seen influential pundits question whether those refusing the vaccine should have access to medical care. They’ve suggested that insurance companies either raise the rates for the unvaccinated or deny them outright. In France, grocery stores have begun hiring security to ensure unvaccinated patrons are not allowed to enter the store – in essence denying an entire subset of the population a basic human need.

Time will tell regarding the effectiveness of the Covid-19 vaccines. An FDA approval for one is indeed a positive sign. However, let us not allow our nation to get to the point where the ideologies of the few can be used to control the many. Today it may be to help people get a vaccine to help fight a pandemic. But the precedent set by these actions could easily usher in the foundations that enable an overreaching government to restrict the freedoms of a populace from questioning or limiting their power. May we never find ourselves driving down a road, the pavement of which was laid by “good intentions”.

The post The Vaxxed and the Vaxxed-Nots appeared first on Todd McMurtry.

At the heart of this lawsuit is the question of how much freedom is too much freedom. Over the past few years, we have seen near universal adoption of policies regarding hate speech that span from small businesses all the way to Ivy League universities. In the most extreme situations, not only are policies in place about what constitutes hate speech, but leadership has begun to set up “safe zones” where certain words or topics are not allowed to be uttered. More and more, it seems, we’re being taught that not only is disagreement bad, it is increasingly being seen as wrong. And if it’s wrong to disagree, the implication is that there’s only one correct way of viewing the world. I cannot think of a more dangerous precedent to set.

We’ve heard it said often – Freedom is messy. Thomas Jefferson, in a letter to Archibald Stewart in 1791, famously said:

I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.

Imagine, if you will, two neighbors. Both with a passion for gardening. One neighbor chooses to grow onions, while the other prefers garlic. If they keep their crops on their own land, both are free to do so. This is a very tame example of differing opinions existing in a free society. Unfortunately, we don’t live in such tame times. Let’s take the same scenario, but now imagine that the neighbor that grows garlic has an allergy to onions. We now have a situation where one neighbor has the potential of a messy inconvenience. What obligation does the onion gardener have to stop growing onions? And if he chooses to continue to grow onions, does the garlic gardener have the right to destroy the onion crop because of the allergy? The respective answers to those questions are an emphatic “None” and “No”. However, when it comes to the free sharing of political positions through social media, we seem to be heading down a dangerous road where we’re being told what words/opinions are allowed, and, to revisit our metaphor, what things will get your garden destroyed by your neighbor’s angry friends.

Ironically, when defending their practices of deleting posts, or outright banning users, these tech giants point to the First Amendment for their protection. They are, afterall, a private company that can choose the type of business in which they want to participate.

These are not new arguments. In fact, when the internet was still in its relative infancy, Section 230 of the Communications Decency Act was put into place. It stipulates, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. Simply put, Section 230 protects social media platforms from being held responsible for the content posted on their sites by users of the technology. This is often referred to as having a “Platform vs. Publisher” status, and it’s still used today by CEOs like Twitter’s Jack Dorsey to justify why they should not be held to the same editorial and ethical standards as media outlets. But social platforms have evolved since those early days of the internet and we need to understand that they now play a vital role as “virtual street corners” which allow us to engage in mutual discourse. And when these platforms begin making rules about who can or cannot stand on the street in order to engage in discussion, we begin teetering toward outright suppression of speech.

Even worse, these giants seem to pick and choose when to enforce their rules – and often those capricious decisions heavily favor one specific, and very liberal, political ideology. Look no further than November 2020 when Steve Bannon’s accounts on Twitter and Youtube were suspended due to him describing a day dream of a violent death for the ancestors of Dr Fauci and FBI Director Christopher Wray. That very week, Kathy Griffin retweeted a now infamous picture of her holding a bloody and severed prosthetic head of President Trump – Twitter took no action to remove that post. Both instances were unnecessarily violent and disgusting. The only difference was that Griffin’s ideology agreed with that of Twitter’s CEO. Bannon’s didn’t.

Getting back to Mr. Trump’s lawsuit, we find ourselves at a crossroads between big tech and how speech can be protected.

By and large, Facebook, Google, and Twitter leadership point a virtuous finger in the air and defended their actions by highlighting the violence of the January 6th Capitol Riots, and the alleged roles certain groups or individuals (including Mr. Trump) played in potentially setting the scene for what happened on that day. However, if quelling violence is their goal, one must wonder why groups associated with Antifa and BLM are able to use these same platforms to post violent messages and arrange protests that inevitably turn into riots which have led to far more damage, death, and destruction than what occurred on January 6th. It seems there is more at play.

It’s clear there is more work to be done when considering the power and influence these tech companies hold in today’s exchange of ideas. Mr. Trump understands this, and while congress continues to prove ineffective and not up to the task, he has chosen to fight on another front. No matter how ideologically driven tech leaders are, there is another factor they must consider. Their financial bottom line. Launching a class action lawsuit will not only get the attention of lawmakers as it winds its way through the Judicial system, but board members and stockholders will begin to take notice as well. And, depending on the outcome, these leaders may be compelled to revisit their inconsistent actions, not because it’s the right thing in their eyes, but because their livelihood may depend on it.

The post Keep It Classy appeared first on Todd McMurtry.

When considering these issues, we must resist the urge to entertain well-rehearsed and overly
simplistic sound bites from popular figures. Rather, we should consider the freedoms that
citizens possess, which are protected by our Bill of Rights. Our founders, having won
independence at a terrible cost, were students of history and knew the only way to ensure that
our freedom remained intact was to limit the power of government over the people. In fact, the
first two amendments in the US Bill of Rights are aimed directly at keeping government at bay
when it comes to our freedom of speech, and our ability to protect ourselves:

Amendment I:
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.
Amendment II:
A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.

While the language may feel outdated, and certain pundits may think these principles no longer
apply to our society, it is difficult to overstate just how liberating and progressive these words
actually were, and still are. We need look no further than certain contemporary East Asian, or
Latin American countries to see that corrupt and tyrannical governments rule their citizenry by
controlling the media, limiting worship, and disarming their populace. It is no coincidence that
the Founding Fathers reserved the number one and two amendments to stipulate two of the
most important principles for individual and corporate freedoms. Their prominence is key, as is
the sequencing – without one, the other falls. And contrary to the recent remarks of President
Biden, without the right to bear arms, the governed are in danger of having their freedom of
speech infringed. And once free speech is gone, we are no better than the thirteen colonies
before they clawed their way out from under the thumb of the British Monarchy. But what about the everyday application of the Second Amendment? Is there still a need to
carry a firearm day in and day out? We have firearm-free zones, designed to make us safer.
We’re much more civilized than we were in the Wild West, which means our crime rate shouldn’t
justify the need to carry self-defense tools. And our police have faster vehicles, better training,
and various non-lethal ways of subduing the rare occurrence of crime. Right?

Tuning to any news station, regardless of political leaning, will quickly reveal those questions
moot and naive. In fact, the converse is true. It’s been widely documented that mass shooters
target gun-free zones at a much higher rate than any other public space. The cities with the
strictest gun laws, sadly tend to have more violent crimes than towns that allow their citizens to
carry, either through permits or “Constitutional Carry”. And, with budgets being cut from police
departments across the country, when seconds matter, most police officers are minutes away.
Unfortunately, in spite of our modern technology, ubiquitous conveniences, refined psychological
theories, and fervent political ideologies, it’s more evident than ever that the same dangers of
government overreach and violent criminals which our Founding Fathers faced are the same
staring back at us today. Even more troubling is that many special interests and government
officials are pushing harder than ever to take away the very protections which allowed this
country to grow into the prosperous land we enjoy today.

FEMA’s own website acknowledges that in a crisis situation such as a mass attack, there will
likely be a time when running and hiding is not enough. At that point, they recommend a plan
called Defend, Disrupt, Fight. In this stage, FEMA advises to, “ambush the attacker with
makeshift weapons like chairs, fire extinguishers, scissors, books, etc.”. Sound advice for a law-abiding citizen in a gun-free zone, or who has had their Second Amendment Right taken from
them. For the 21 states that have implemented “Constitutional Carry”, however, the scene would
no doubt look different. In fact, would-be attackers are more likely to think twice before carrying
out crimes, be them on a macro or micro scale if they’re more likely to meet resistance from
citizens armed not only with firearms but the confidence of a strong Second Amendment.

The post When Seconds Count appeared first on Todd McMurtry.

Most people attacked by corporatist-media are known as a “public figure” or a “limited purpose public figure.” For one of these people to hold the media to account for misrepresentations and false reporting, they must prove that the reporter made a statement that was defamatory and that it was made with “actual malice.”  This is generally defined as “an evil intent or motive arising from spite or ill will; or culpable recklessness or willful and wanton disregard of the rights and interests of the person defamed.” This is hard to prove, because reporters often do just enough work to pretend they acted in good faith. There are, however, ways to attack corporatist-media when the reporters write hit pieces instead of news. 

When a reporter relies on biased or anonymous sources, issues threats or other negative statements, demonstrates ill will or hostility, or is a rival, such conduct may support a claim of actual malice.  A reporter’s bias might also support an allegation of actual malice. For example, if a reporter has a business relationship with one party and then writes a hit piece on that party’s business competitor, the business competitor can point to the reporter’s bias to prove actual malice.  By these standards, many hit pieces may be actionable. 

So, what is to be done? We need more suits against corporatist-media that engages in writing hit-pieces.  These efforts might expand the law to make the chances of success in such litigation more likely.  Justice Clarence Thomas has suggested that the law is ripe for change.  As well, if they know they will be sued for their actions, they might be more careful about what they write.  The problem is the time and expense of pursuing litigation.  Most people cannot afford to pay an attorney by the hour and most attorneys can only handle so many contingency fee cases, especially ones that present the unique challenges of defamation litigation. 

What is needed is a public interest law firm.  Such a firm is a private firm, like any other, but it is focused on representing a particular cause.  It is not profit-oriented but is instead issue-oriented.  Such a firm would rely upon outside funding to operate, as its cases would not necessarily make money.  Perhaps billionaires such as Palihapitiya can spare a little change to empower a public interest law firm dedicated to taking on the corporatist media.  This effort could rebalance the relationship between corporatist-media and those it attacks. 

The post The Defamation Lawsuit is Essential to Our Future appeared first on Todd McMurtry.

Why? Because something, as they say, is rotten in the state of cyberspace. Hate-speech and harassment, disguised as paid content and “helpful” content suggestions, regularly miss the mark. And the social media giant’s algorithms are taking the blame.

What’s an algorithm, exactly?

As defined by Wikipedia, an algorithm “is a finite sequence of well-defined, computer-implementable instructions, typically to solve a class of problems or to perform a computation.” Sounds innocent enough, right? It is. It’s nothing more than an aspect of computer science.

However, Yale data scientist Elisa Celis (who studies fairness and diversity in artificial intelligence) explains that companies like YouTube, Facebook, Twitter, and others refuse to reveal what’s exactly in their respective algorithm’s codes. Most, she says, seem to “revolve around one central tenet: maximizing user engagement­­—and, ultimately, revenue.”

So, are Twitter’s algorithms nothing more than a money-making tool? On the surface, yes. It’s learning what a user’s behaviors are while engaging with the content on the platform: The articles shared, the search terms used, and so on. The idea is to take that data and translate it to relevant products and services. 

“These things aren’t malicious, and they’re not out of control,” states Celis in PBS “Nova” reporter Katherine J. Wu’s article, “Radical ideas spread through social media. Are the algorithms to blame?“. “But it’s also important to acknowledge that these algorithms are small pieces of machinery that affect billions of people.” As Wu puts it, at what point does personalization cross the line to polarizing? The algorithms can’t tell the difference between boating and bigotry, and they aren’t trying to.

Who is to blame? 

Like any tool, however, Twitter’s algorithm can be used for benevolent, benign, or malicious purposes. The question is, how influenced are we by them, and more importantly, who is behind the influence? “If the global reach of social media were being used merely to spread messages of peace and harmony—or just to make money—maybe there wouldn’t be any [harm]. But the purposes are often darker,” writes Bloomberg reporter Shelly Banjo. 

According to the tech companies that implement them, these programs exist only to help and serve you, the user. In essence, they are saying, “Yes, turning a profit is the ultimate goal, but not before bringing you relevant, customized stories, news information, and products based on your likes and dislikes. You’re the one in control, not us. And if you act out based on content fed to you, then that’s your fault, not ours. It’s your interests and online behavior that caused it to appear in the first place.”

Do (but don’t) be influenced by media

It’s the same illogical mentality behind the idea of product placement in television and movies: Don’t be influenced by the sex and violence on the screen, just the BMW and Coke that happen to be there. If content leads a person to act out in a way other than shopping, especially any negative way, that’s on them. Wu notes, “It would be an oversimplification to point to any single video, article, or blog and say it caused a real-world hate crime. But social media, news sites, and online forums have given an indisputably powerful platform to ideas that can drive extreme violence.”

Maybe all you do is look at hilarious cat videos and share links to your favorite recipes. Think your feed is safe? Think again. In “Facebook, Twitter and the Digital Disinformation Mess,” Banjo also highlights how “social media manipulation campaigns” have been utilized by governments and political parties in 70 countries, including China, Russia, India, Brazil, and Sri Lanka. Circumventing and outsmarting social media firewalls and algorithms, state-sponsored smear campaigns in these countries utilize artificial intelligence and internet bots to flood targeted news feeds with extremist messages and videos. The technology to do this exists, and it’s happening now. 

Yet, not all algorithms exist to sway your purchasing decisions or serve tech-giant masters. One promising solution was presented by Binghamton University late last year. Computer scientist Jeremy Blackburn, along with a team of researchers and faculty, “have developed machine-learning algorithms which can successfully identify bullies and aggressors on Twitter with 90 percent accuracy.” While not perfect, it’s important to note that this technology also exists, and it’s a bright ray of hope. 

Abuse on Twitter a regular occurrence

This concern over the unchecked power of Twitter, et al and their algorithms cross party lines and media bias, affecting celebrates and everyday citizens alike. (Even actor Sasha Baron Cohen uses the Trump-popularized phrase “fake news” stating in his op-ed piece for the Washington Post that online, “everything can appear equally legitimate.”) He isn’t alone in his criticisms. Fed up with the onslaught of abuse and hate speech, fellow celebrities including Ed Sheeran, Millie Bobby Brown, and Wil Wheaton have limited their presence on Twitter—and have been quite vocal about doing so. 

While one might argue that living in the public eye comes with consequences, those not in the limelight are equally disgruntled with the social media platform’s refusal to address rampant harassment. Every day, average users continue to question why nothing operates on the platform to combat abuse. Especially critical of Twitter CEO Jack Dorsey, those active on the social media platform call him out for continually refusing to address cyberbullying concerns. In The Atlantic article “Twitter’s New Features Aren’t What Users Asked For,” author Taylor Lorenz shares one frustrated user’s tweet. “The annoying thing is that every few months Jack comes out with a big speech about how they’re going to fix twitter, and ever[y] time they just continue to get it wrong.”

And what of the onslaught of abuse and harassment suffered by private citizens who find themselves thrust into the spotlight as a result of sloppy reporting? Or peer-to-peer cyberbullying occurring across the personal devices of children and teenagers every day? What fills the Twitter feeds of their tormentors? As Wu states, “[Algorithms] don’t have a conscience that tells them when they’ve gone too far. Their top priority is that of their parent company: to showcase the most engaging content—even if that content happens to be disturbing, wrathful, or factually incorrect.” Are abusers fed more and more volatile articles and videos, which in turn fans the flame of the hate and anger they unleash on others?

Twitter slow to respond to user demands

Although Twitter states that combating abuse is a “work in progress,” the company instead chooses to implement useless updates and changes that are, in some instances, only making it easier to engage in harassment. Lorenz adds, “While the company continues to dedicate time and resources to making minor changes aimed at boosting engagement, easy fixes for harassment are ignored.” Most recently, Twitter purged an untold number of QAnon conspiracy theorists, but this one-time housecleaning will not solve how algorithms move the speech on Twitter.  

Lorenz reports that in 2016, Online Abuse Prevention Initiative founder Randi Lee Harper laid out several improvement options in a Medium post. Although most were addressed by Twitter eventually, several suggestions that addressed minimizing harassment were ignored. Instead, some of the “updates” the social media platform chose to rollout were mostly cosmetic:

• changing its user avatars from square-shaped to circular
• redesigning Moments
• adding topic tags to the Explore page
• spamming users’ timelines with a “happening now” section
• adding endless notifications
• upping the character limit to 280
• promoting live videos of sports events
• revamping its algorithm to give older tweets more prominence

Taking Twitter to task

Close on that last one, Twitter, but you miss the mark again. An algorithm revamp, but of a different sort, is what the public is demanding. New on the media scene (compared to that of television, movies, and the radio), social media’s persuasive power has remained largely unchecked, and the law is desperately trying to catch up. 

In his op-ed piece, Baron Cohen brings to light a chilling fact: the large technology companies behind these platforms are, for the most part, beholden to no one—not even the law: 

“These super-rich “Silicon Six” care more about boosting their share price than about protecting democracy. This is ideological imperialism—six unelected individuals in Silicon Valley imposing their vision on the rest of the world, unaccountable to any government and acting like they’re above the reach of the law. Surely, instead of letting the Silicon Six decide the fate of the world over, our democratically elected representatives should have at least some say.”

The “Silicon Six” Baron Cohen refers to are American billionaires and tech giant CEOs and/or founders Mark Zuckerberg (Facebook), Sundar Pichai (Google), Larry Page (Google), Sergey Brin (Google), Susan Wojcicki (YouTube), and Jack Dorsey (Twitter). Similarly, Wu notes that one of the biggest reasons to be wary of social media companies’ algorithms is that, “[only] a limited subset of people are privy to what’s actually in them.” 

In his article for The Verge, reporter Casey Newton writes that while Baron Cohen efforts to amend Section 230 of the Communications Decency Act (the driving force behind his speech and opinion piece) are somewhat misguided, he raises some valuable points. Newton agrees with him about not only the dangers of algorithmic recommendations on social platforms but that the aforementioned “Silicon Six” have been permitted so much influence “thanks to a combination of ignorance and inattention from our elected officials.” 

Data journalist Meredith Broussard, communications expert Safiya Noble, and computer scientist Nisheeth Vishoni (all interviewed for Wu’s article for “Nova”) feel social media algorithms should be tested and vetted as strenuously as drugs before they hit the market. 

Noble further states, “We expect that companies shouldn’t be allowed to pollute the air and water in ways that might hurt us. We should also expect a high-quality media environment not polluted with disinformation, lies, propaganda. We need for democracy to work. Those are fair things for people to expect and require policymakers to start talking about.” These companies can’t police themselves, nor should they. If social media companies do not change their ways, then our elected officials in Washington should change the rules for them. 

Todd McMurtry is a nationally recognized attorney whose practice focuses on defamation, social media law, cyberbullying, and professional malpractice. You can follow him on Twitter @ToddMcMurtry.

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Ms. Carano, who is well known for articulate conservative social media posts, made the following post on or about February 9, 2021:

“Jews were beaten in the streets, not by Nazi soldiers but by their neighbors… even by children.
Because history is edited, most people don’t realize that to get to the point where Nazi soldiers could easily roundup thousands of Jews, the government first made their neighbors hate them simply for being Jews. How is that any different for simply hating someone because of their political views?”

This post’s gist is that to hate a person based upon religious affiliation is little different from the hate a person based upon political views. (Trust me, I know this because some of my family members have openly expressed a deep hatred for me because I am a Republican). To hate a person for being a Republican is no different from hating a person for being a Jew. Both Jews and Republicans have sets of beliefs, but on the exterior appear no different than anyone else. To put this another way, to hate someone for being a Jew or a Republican is not to hate them for their skin color, but to hate them for their beliefs.

In retaliation for making a truthful statement on social media, Ms. Carano’s employer, Lucasfilm, Ltd., terminated her employment on the Mandalorian television series and issued a public statement that read in part:
“Nevertheless, her social media posts denigrating people based on their cultural and religious identities are abhorrent and unacceptable.”

The problem with this statement is that no reasonable interpretation of what Ms. Carano said could conclude that she denigrated anyone based upon cultural or religious identity—unless you are a Nazi.

Two legal issues immediately present themselves:

(1) if her contract permits Lucasfilm to terminate her for cause, does her truthful statement amount to cause; and (2) is Lucasfilm’s statement defamatory? Let’s consider these two issues.

First, I do not think making a truthful statement on social media can constitute “cause” under any contract unless the contract specifically addresses social media commentary. Such an agreement might state that a person who makes a comment on social media that harms her employer can be terminated. The complexity here is that there is no reason why a truthful statement would have a negative impact on an employer.
(Remember how I said things were when I was in high school).

Only in a society dominated by cancel culture is it possible that the truth can be interpreted negatively. This means that there are certain circumstances where one cannot speak the truth. All contracts have an implied duty of good faith and fair dealing regarding performance of the terms of the contract. That means if you agree to do A, then you must exercise good faith when performing your contractual duty. Again, it is illogical to suggest that making a statement of fact would somehow violate Ms. Carano’s duties of good faith under her agreement. So, I suspect she has a good breach of contract claim against Lucasfilm. (I would need to read her contract to be sure).

As for defamation, clearly what Lucasfilm said was defamatory. The Lucasfilm statement is absolutely false because nothing that Ms. Carano said can reasonably be construed to denigrate anyone based upon their cultural and religious identities. Instead, what Ms. Carano did is compare canceled culture to what occurred in Germany in the 1930s. What happened there is that over time, society was trained to hate the Jews.

Today, with the nonstop attacks on conservatives and Republicans, people, like members of my own family, are being trained to hate others based only upon their political ideology.

The real reason behind the Carano #cancellation is an effort by the Left to frighten people into submission. The Left wants to scare people so badly that no one will comment on anything for fear of what will happen. This means that the First Amendment will no longer have the powerful and positive force it historically has had. Instead of people standing up for their views and debating other’s opinions, we confront a culture where only one opinion, ever-changing, is allowed.

Todd McMurtry is a nationally known attorney. His practice focuses on defamation, social media law, professional malpractice, and business disputes. You can follow him on Twitter, GAB and Parler (hopefully again soon!): @ToddMcMurtry.

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Twitter, Facebook, Instagram, and others unilaterally decided to kick the United States president off their platforms and terminate his social media relationship with as many as 80 million Americans. It seems to many that this is a violation of former Pres. Trump’s right to freedom of speech, as protected by the First Amendment of the United States Constitution. Unfortunately, our constitution offers no such protection. Generally, your speech is protected only in public spaces, not private property.  

As you have likely heard, many people refer to social media companies as private corporations that can do whatever they want on their platforms. This is true. It is also true that in the late 90s, Congress passed the law called the Communications Decency Act or the CDA. It says: “No provider or user of an interactive computer service shall be held liable on account of — (A) 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.”

This act—especially the “otherwise objectionable” –gives companies like Twitter the absolute right to police any content that any person, including the president of the United States, posts on their platform. The courts have broadly interpreted the law to provide maximum discretion to these companies to decide what their users can or cannot post on their platforms.

When you sign up for Twitter, you must press a button agreeing to their terms of service (“TOS”). Social media platforms regularly update their TOS to decide precisely what you or former Pres. Trump can say on social media. First, you can talk about election interference; then they determine that you cannot. Next, you can complain about the origins of the Covid-19 virus; then, they shut you down if you mention it on social media. Examples like this go on and on.

Will this end? It likely will not until Congress or the courts change the law. Right now, several lawsuits are challenging how social media companies use their TOS to interpret their authority under the CDA. We can hope that a more conservative court would temper how social media companies use the law. Time will tell.

In the interim, I think we can rest assured that none of the currently existing major social media companies will allow former Pres. Trump to reengage on their social media platforms. The beautiful thing about this is that eventually, another platform (be it Parler, Gab, or another) will provide social media interaction that allows former presidents and other prominent people to post their views without censorship. It may take a few months or a year to get there, but eventually, the fact that large social media companies have censored a former U.S. president will result in greater competition.

We have already seen companies such as Twitter and Facebook lose value on the stock market. Once a competing company establishes a large presence, there will be real competition. We then can regain much of our right to hear what our leaders have to say.

Todd McMurtry is a nationally known attorney. His practice focuses on defamation, social media law, professional malpractice, and business disputes. You can follow him on Twitter @ToddMcMurtry. 

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