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Motion for Summary Judgment Case 9:19-cv-80893-RS Document 54 Entered on FLSD Docket 04/10/2020 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA LAURA LOOMER, Plaintiff, v. Case No. 9:19-cv-80893-RS FACEBOOK, INC., Defendant. DEFENDANT FACEBOOK, INC.’S MOTION FOR SUMMARY JUDGMENT GELBER SCHACHTER & GREENBERG Brian W. Toth Natalia B. McGinn 1221 Brickell Avenue Suite 2010 Miami, Florida 33131 Phone: (305) 728-0965 Fax: (305) 728-0951 [email protected] [email protected] DAVIS WRIGHT TREMAINE LLP Laura R. Handman* Alison Schary* Chelsea T. Kelly* Suite 800 1919 Pennsylvania Avenue, N.W. Washington, DC 20006 Phone: (202) 973-4224 Fax: (202) 973-4450 [email protected] [email protected] [email protected] Counsel for Defendant Facebook, Inc. *Admitted pro hac vice Case 9:19-cv-80893-RS Document 54 Entered on FLSD Docket 04/10/2020 Page 2 of 20 I. INTRODUCTION Plaintiff Laura Loomer claims that Facebook defamed her by removing her accounts and explaining that she had violated its Dangerous Individuals and Organizations (“DIO”) policy. As Facebook argued in its pending Rule 12(b)(6) motion, Ms. Loomer has not even stated a claim as a matter of law. Now, having failed to conduct any discovery, Ms. Loomer cannot create a genuine issue of material fact to survive Facebook’s motion for summary judgment on all of her claims. Ms. Loomer’s claims were (and remain) prime for dismissal. First, Ms. Loomer has not identified any false or defamatory statements of fact made by Facebook. To the extent she alleges Facebook called her “dangerous” by removing her accounts pursuant to its DIO policy and describing its policy generally in the press, the law is clear that calling someone “dangerous”—or saying that she “promoted” or “engaged” in “hate”—is a protected statement of opinion. Even if it were not, Ms. Loomer cannot possibly meet her burden to prove that it would be objectively false to describe her as “dangerous” or promoting or engaging in “hate” given her widely reported controversial public statements. To the extent Ms. Loomer is claiming, in the guise of a claim for “defamation by implication,” that Facebook branded her a “terrorist” or accused her of conduct that would also violate the DIO policy, Ms. Loomer offers no basis to suggest (as she must) that Facebook ever intended or endorsed that implication. Second, Ms. Loomer is undisputedly a public figure and cannot meet her heavy burden to demonstrate by “clear and convincing evidence” that Facebook acted with actual malice. At this stage, Ms. Loomer can no longer rely on the threadbare allegations in her complaint. Having failed to conduct discovery, there is no record evidence to suggest that Facebook subjectively knew she was not “dangerous” and/or did not “promote … hate.” Nor could she ever make this showing: given Ms. Loomer’s public statements and actions, and the fact that most major platforms have 1 Case 9:19-cv-80893-RS Document 54 Entered on FLSD Docket 04/10/2020 Page 3 of 20 banned her for violating their policies, this is clearly an issue where, at a minimum, reasonable minds can disagree. See Time, Inc. v. Pape, 401 U.S. 279, 290 (1971). Finally, Ms. Loomer’s claims are, at their core, targeting Facebook’s decision to remove her accounts from its platform for violation of its community standards and policies. Both the Communications Decency Act and the First Amendment provide absolute protection for Facebook’s decision and therefore independently bar her claims. For all of these reasons, the Court should grant Facebook’s motion for summary judgment and dismiss Ms. Loomer’s claims with prejudice.1 II. BACKGROUND A. Factual Background Facebook is the world’s largest social media platform, with more than 2 billion users. To maintain a safe environment, Facebook requires its users to comply with the Community Standards published on its platform, including the DIO policy. Statement of Material Facts (“SMF”) ¶ 9. The DIO policy bars from Facebook organizations or individuals involved in “[o]rganized hate.” Id. ¶ 10; Declaration of Nicholas Wong (“Wong Decl.”) Ex. 1 at 1. The policy defines a “hate organization” as “[a]ny association of three or more people that is organized under a name, sign, or symbol and that has an ideology, statements, or physical actions that attack individuals based on characteristics, including race, religious affiliation, nationality, ethnicity, gender, sex, sexual orientation, serious disease or disability.” SMF ¶ 10; Wong Decl., Ex. 1 at 2. The policy also states that Facebook does not permit “content that praises” or “coordination of support for” “any 1 Facebook has also filed a motion to transfer this case to the Northern District of California, based on a forum-selection clause to which Ms. Loomer agreed. ECF No. 24. That motion remains pending. Should the Court grant its motion to transfer, Facebook reserves the right to file a motion to strike pursuant to the California Anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, upon transfer to the Northern District of California. 2 Case 9:19-cv-80893-RS Document 54 Entered on FLSD Docket 04/10/2020 Page 4 of 20 of the above organizations or individuals or any acts committed by them.” SMF ¶ 12; Wong Decl., Ex. 1 at 3. In addition to organized hate, the policy also does “not allow any organizations or individuals . involved in . Terrorist activity[,] . Mass or serial murder[,] Human trafficking[, or] Organized violence or criminal activity” to have a presence on Facebook. SMF ¶ 11; Wong Decl., Ex. 1 at 1. Ms. Loomer is a self-described “well-known conservative investigative journalist” and “conservative Jewish female activist,” who is currently running for Congress in Florida. SMF ¶¶ 2–3. On her website, she describes herself as a “Guerrilla-style” journalist who “often conducts ambush interviews on live stream,” a tactic she calls getting “Loomered.” Id. ¶ 4; Ex. 1 at 1. Ms. Loomer often posts these videos to her website, as well as short articles about her political actions and topics such as “Islam in America.” SMF ¶ 5; Ex. 2. Ms. Loomer is no stranger to controversy. She has made news, for example, by: posting an Instagram video in which she said “Islam is a cancer on society. Islam is a cancer on humanity, and Muslims should not be allowed to seek positions of political office in this country. It should be illegal”; describing herself with the hashtag “#ProudIslamaphobe” after stating “let me be the first to say I never want another Muslim entering this country EVER AGAIN!” and calling Muslims “savages” on Twitter; calling the national media “ISIS” while interrupting a performance of Shakespeare’s Julius Caesar in New York’s Central Park; posting a series of anti-Muslim tweets following a terrorist attack in New York City, including calling for “a non Islamic form of [U]ber or [L]yft because I never want to support another Islamic immigrant driver,” which resulted in her being banned by both Uber and Lyft; protesting Speaker of the House of Representatives Nancy Pelosi’s stance on immigration by setting up a “sanctuary” tent on Pelosi’s property in Northern California; along with her associates, protesting California Governor Gavin Newsom’s immigration policies at the Governor’s Mansion in Sacramento, California, while wearing sombreros, serapes, and fake moustaches. 3 Case 9:19-cv-80893-RS Document 54 Entered on FLSD Docket 04/10/2020 Page 5 of 20 SMF ¶ 6; Exs. 3-12. As a result of these and similar behaviors, multiple technology platforms have banned Ms. Loomer for violating their Terms of Service. In late 2018, Twitter banned Ms. Loomer for posting a tweet claiming Congresswoman Ilhan Omar was “anti Jewish.” SMF ¶ 7. On her website, Ms. Loomer calls herself the “most banned woman in the world,” stating that she has been banned by Twitter, PayPal, Periscope, Lyft, GoFundMe, Venmo, Medium, TeeSpring, Uber, and Uber Eats. Id. ¶ 8; Ex. 14 at 3-4; Ex. 15 at 10-20. On May 2, 2019, Facebook removed Ms. Loomer’s accounts from its platform, along with the accounts of Milo Yiannopoulos, Paul Joseph Watson, Paul Nehlen, Alex Jones, Louis Farrakhan, and InfoWars. SMF ¶ 13. Facebook’s decision drew widespread media coverage, including a CNN article with the headline “Louis Farrakhan, Alex Jones and Other ‘Dangerous’ Voices Banned by Facebook and Instagram” (the “CNN Article”). Id. ¶ 15; Ex. 16. The CNN Article begins with three paragraphs explaining that Facebook has banned several individuals from its platform. Ex. 16 at 1-2. It then quotes a statement by a Facebook spokesperson regarding the account removals: “We’ve always banned individuals or organizations that promote or engage in violence and hate, regardless of ideology,” a Facebook spokesperson said in a statement provided to CNN Business. “The process for evaluating potential violators is extensive and it is what led us to our decision to remove these accounts today.” Id. at 2. The CNN Article also states: A Facebook spokesperson told CNN Business the company goes through a lengthy process and takes into consideration a number of factors before determining an individual to be “dangerous.” The Facebook spokesperson said such factors include whether the person or organization has ever called for violence against individuals based on race, ethnicity, or national origin; whether the person has been identified with a hateful ideology; whether they use hate speech or slurs in their about section on their social 4 Case 9:19-cv-80893-RS Document 54 Entered on FLSD Docket 04/10/2020 Page 6 of 20 media profiles; and whether they have had pages or groups removed from Facebook for violating hate speech rules.
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