For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.
To outsiders, the US must look like a place gone mad. A huge rabble, virtually unrestrained, stormed our Capitol. Among the results were five deaths, numerous injuries, and enormous property damage. US airplanes have become hazardous places, not just because of Covid-19, but because gangs of maskless louts are shouting and harassing our public servants on board, flouting the rules of air travel and pandemic safety. Madmen are stalking our public servants, their homes and their families and threatening violence and persecution.
Foreigners observing us must think we’ve collectively lost our minds.
There’s a lot of real damage here. There are five deaths. There are physical personal injuries. There are people who’ve caught Covid who otherwise wouldn’t have. There’s a huge class of people who have claims for wrongful death, physical injuries or property damage. This is what lawyers call a “mass tort.”
What’s the precipitating act? It’s a bald lie, originated by Donald J. Trump, that the election was stolen. It’s a lie that social media helped propagate, not just for two months after the election, but for a significant time beforehand, while Trump was claiming incessantly that the election would be “rigged.”
But here’s the thing. This tort is not about defamation. Reputations may have been ruined. But many people also were actually hurt, and much property damaged, in primitive torts of assault, battery, vandalism and mayhem. So Section 230(c)(1) of the Communications Decency Act, which gives social media a free pass for defamation, simply doesn’t apply. This time, social media have to pay the piper for what they’ve done—for the effects of their spreading the lie.
It looks as if some of the media actually understand their liability. Before the Insurrection, they minced around the lie for weeks and months, some warning users that the lie was “disputed,” or words to that effect. But no social platform cut Trump off completely until after the Capitol Insurrection. Roger McNamee, a venture capitalist and early investor in Facebook, thinks some did so afterward not out of patriotism, but for fear of legal liability. (See also, his essay in Wired Magazine.) After thinking things over, I agree with McNamee.
The flypaper contracts by which corporations wipe out most of American law for Internet users don’t apply to these injuries. The reason: even if the injured parties were social-media users, their injuries generally have nothing to do with their use of social media. Insofar as concerns their use of social media, the injured parties were harmed as innocent bystanders. So neither contractual disclaimers nor contractual exclusions of class actions apply.
Although well worth pursuing, this is not an open and shut case. There are issues of intent. Surely the social-media firms didn’t intend to cause these injuries deliberately, but were they negligent or reckless? I have argued yes.
There’s also a question of causation: how far do the ripples of causation extend outward from such wide dissemination of the key precipitating lie, with such little warning of its falsity? Does strict liability apply in this egregious case? Does the “intervening cause” of Trump’s mass rally, immediately before the assault, excuse the earlier precipitating cause of a bald lie spread so widely, which helped to bring so many angry people to our capital? These are questions that deserve to go before a judge and/or a jury.
Social media were not the only media to spread the lie, but I’d argue that they were the most egregious in spreading it in pristine form, with little comment or objection. By the time the election season rolled around, most non-social media were treating the lie as a falsehood of Trump, with big, prominent disclaimers. Many such media had already begun calling it a “lie.”
At the end of the day, this case doesn’t differ in concept from mass tort litigation over environmental pollution. Metaphorically, social media polluted society’s understanding of its social, political and electoral environment.
So here’s what ought to happen now. The survivors of the dead Capitol Police should get together with the other injured parties and hire the best mass-tort litigators in the nation. They should bring a class action against Trump and the social media that propagated his lie. The case should be a class action on both plaintiffs’ and defendants’ sides. All social media that propagated the lie before the Insurrection, without calling it a lie, should be named as defendants.
The case would benefit the entire nation, not just the plaintiffs. For the jury would have to consider the falsity and inflammatory nature of the lie in the course of assessing liability. A decision would provide much-needed closure to a nation ganged up on either side of the ring.
Yes, there were 63 individual lawsuits relating to the lie. Trump’s side lost all of them, except for one that let GOP observers come closer to the vote counters. But that gaggle of suits lacked the geographical breadth and singular focus that a nationwide class action would bring to the issue of truth or falsity.
The plaintiffs should have no trouble getting lawyered up. When I searched in Google for “mass tort Potomac,” I got so many hits on lawyers’ ads that I gave up trying to find online histories of an illustrative mass-tort case, involving pollution of the Potomac, that I vaguely remembered from law school in the seventies.
So finding counsel should be easy. Lawyers will flock to serve like moths to a lamp. They will come for the novelty and importance of the case, the amounts at stake, and the reputational boost for any lawyer who takes part.
They ought to serve on contingency, perhaps even floating costs, thus making it easy for individual plaintiffs to sign on. But to make sure they get the very best lawyers, plaintiffs should hire a consultant—a professor known for research on mass-tort litigation (I would not qualify)—to guide their selection and retention of counsel.
Win or lose, a case like this could do for our society what litigation over the Great BP Oil Spill did for our Gulf. It could clean up the cesspool of social media. Merely bringing this dual-class action before a District-of-Columbia jury would force Facebook, Twitter and the rest to give far more weight to the immense damage the lies they spread cause than they have done to date.
At the end of the day, tort law is a safe meadow of common-law simplicity in an overgrown forest of dense statutes. It’s common-sense law about real damage in real life. No careful observer, in my view, could hold social media blameless for the degradation of our thinking, politics, elections and social relations that followed their advent. It’s time for them to start paying the piper or making credible defenses in courts of law.