Despite 2020 Supreme Court win, Teatotaller v. Facebook is still going on

By DAVID BROOKS

Monitor staff

Published: 08-22-2023 6:25 PM

Wondering what it’s like to face off with a tech monopoly? Look no further than the least inconspicuous storefront in downtown Concord.

Even though Emmett Soldati, owner of the Teatotaller cafe on North Main Street, won a surprise victory in front of the state Supreme Court in 2020 while acting as his own attorney, he’s back in a New Hampshire courtroom to continue the battle with Instagram – or rather its parent Facebook, now doing business as Meta. Call it David v. Goliath, round 3.

At issue is his eatery’s popular and thriving Instagram business account which was canceled in 2018, dealing a blow to his bottom line, for reasons that he still can’t figure out because Facebook doesn’t want to say.

Maybe Soldati violated some aspect of the contract with his commercial Instagram account. Maybe Instagram got mad at Soldati’s active promotion of gay rights. Maybe an intern hit the wrong switch and management is embarrassed to admit it. Unless Meta wants to tell him, there’s no way to find out.

“We’ve tried to seek out what that violation is. Facebook has never told us – that’s why the case got dismissed at first, because they claim they are immune from that kind of scrutiny,” said Soldati.

This illustrates the drawback of letting private entities control public spaces.

Yes, public spaces. The internet’ s positive-feedback loop where eyeballs attract eyeballs has fueled Facebook/Instagram’s control of social media to such an extreme – Facebook for us old folks, Instagram for younger ones – that it effectively controls a public square, as if we let McDonald’s decide who can use the street in front of its stores.

“If you have a business posting on Facebook, or Instagram, and Facebook is screwing with you, there’s no alternative. And there’s no way to find out why,” Soldati said Friday. “I have received dozens and dozens of messages from people I know – and people I do not know – saying the same thing happened to me,”

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There is Twitter as a social-media alternative but Soldati said it was peripheral to his business back then and it has only become more peripheral since. There’s also Tik-Tok, which didn’t really exist when the case started, but it has serious control issues of its own. So the Meta stranglehold still exists.

This privatization of public space deprives you and me of the few tools we have to get information out of public entities such as requirements for open meetings, appointment of mandatory oversight boards, or Freedom of Information Act filings. If you’re fighting a company there’s nothing to do but sue.

Facebook initially hid behind the Communications Decency Act of 1996, which says (roughly) that digital publishers are not responsible for what they put online. A small claims court agreed.

Soldati appealed that decision to the state’s highest court and won in March 2020, convincing them that he had the right to a trial on grounds of breach of contract – since as we all know, arguing that business was harmed will get you farther than arguing about right and wrong.

Last week, Soldati was in Dover District Court seeking $10,000 in damages, the limit for a small-claims court case. But Facebook threw another curve, saying Soldati actually canceled the account himself and that anyway the case should really be heard in California where they’re based.

Soldati will be writing up a response, still without an attorney.

“Facebook’sgoal is to run down the clock and exhaust the resources of the people who would challenge them. They would bleed me dry if I attempted to hire an attorney and they know that, so I won’t,” he said.

Soldati has since closed the original Teatotaller in Somersworth, holder of that first Instagram account (he has a new account), and opened his cafe on North Main Street, where the bright-pink storefront is hard to miss.

“Concord has totally exceeded all expectations. I’m happy and surprised and impressed by how active the community is. It’s not much larger than Somersworth but it is 10-fold busier – there’s people out at all hours of the day,” he said.

Facebook may not like him much but the Greater Concord Chamber of Commerce must love him.

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