By Eric Striker | National Justice | July 18, 2020
A potential mechanism for punishing tech censorship has materialized.
Nationalist comedian Owen Benjamin and 72 of his fans have won a tentative decision under California’s arbitration law, which was amended by legislation signed by Governor Gavin Newsom in October 2019 to put the burden of fees in disputes on the party setting terms.
Prior to January 2020, Patreon’s Terms of Service encouraged disagreements to be settled via arbitration under the assumption that the money and time required would discourage consumers from even trying.
In the case against Patreon, the matter in need of arbitration is related to the company’s abrupt banning of Benjamin’s page for political reasons. Benjamin and his fans argue that the deplatforming amounts to tortious interference in their business contract. Thanks to Patreon, Benjamin cannot comply with his contractual obligation of providing content for money to his followers due to the tech platform failing in its role as financial middleman. Benjamin is asking for $3.5 million in damages.
What is unique about arbitration in California is that Patreon is on the hook for the legal and arbitration fees required for Benjamin and all 72 of the individual plaintiffs. This means they must pay at least $10,000 to each individual complainant, which in total could cost the corporation 10s of millions of dollars regardless of outcome.
Patreon has reacted to this process in an aggressive manner. They could make the whole thing go away simply by reinstating Benjamin’s account, but they decided to counter-sue and filed for an injunction against having to pay the fees for Benjamin’s fans, stating that they are ready to fight to “keep hate speech off the platform.” An article on the leftist click farm Daily Dot gloated about this, perceiving it as a corporation crushing little guys.
A dirty trick Patreon utilized was to change their Terms of Service shortly after Benjamin’s fans contacted them seeking arbitration — a step Patreon demands first be taken before action is brought before mediators. It seems unlikely that this will work.
The Benjamin “bears” — as his fans refer to themselves — were able to retain the consul of First Amendment attorney Marc Randazza, who appeared to defeat the arguments by Patreon’s lawyers in open court. A July 13th tentative ruling rejecting Patreon’s injunction was won. If the decision is made final, it will set a precedent that introduces an enormous cost for companies like Paypal, Stripe and other payment processors with arbitration clauses that like to destroy people’s livelihoods for their political beliefs.
Mike Cernovich has covered the case closely and is optimistic about its prospects. Legal expert Nick Rekieta believes that this ruling could be an historic victory for free speech. Reclaim The Net, an organization that fights for free expression on the internet, has called the arbitration law a “legal workaround for Big Tech censorship.” Aside from the Daily Dot and a snarky blogpost on Patheos, the Jewish media is by and large refusing to even speak about the case even though many tech companies are watching proceedings closely — evidence that they fear the likely outcome.
Countless lawsuits have been filed seeking to counter-attack against highly restrictive, college campus style tech multi-national censorship. Jared Taylor recently wrote a piece describing his attempt in 2018 to sue Twitter over its ban of his organization, citing that it falsely advertised itself as a free speech platform. Taylor’s lawsuit was thwarted in a rare and politically motivated action by an appeals court after initially winning the right to have his case heard.
Jewish organizations will not allow their most powerful tool for stifling debate to be nullified without a fight. There is a strong possibility that if Benjamin and the other plaintiffs are successful, California’s arbitration laws could be challenged by Big Tech all the way up to the Supreme Court.
If this were to happen, the court conservatives — which regularly put the interests of corporate America over the rights of citizens — could use its majority to rule that forcing Patreon to pay arbitration fees is unconstitutional. This is ironic, as both Donald Trump and the Republican Party claim to oppose tech censorship, yet until Benjamin’s lawsuit, no serious move against it has been made.
A final ruling on Patreon’s injunction is slated to be made in the coming weeks.