Part III

Facebook owns Facebook pages

As mentioned, The Satanic Temple leans heavily on what are legally known as “conclusory statements”. These are declarations and demands that are intended to be taken at face value, even while their factual and logical supports are missing or even contradictory to the statement. The Temple’s press releases and the clickbait articles repeating them follow a common theme: “The Satanic Temple Declares X” or “Satanists Announce They Are Exempt From Y.” It may or may not be a surprise that their approach to making formal legal arguments is equally haphazard, even as this strategy creates an unbroken chain of defeats around the country for the Temple.

We think the fact they continue to rely on this strategy in today’s world is a massive tell as to what they’re actually out to accomplish.

In our case, The Satanic Temple instigated and then repeatedly prolonged this suit with allegations that have no basis in either fact or law. Let’s talk about a few of them.

It shouldn’t be a controversial statement, but Facebook owns Facebook pages. They have a much better ability to detect “hacking” or “cyberpiracy” if it had actually occurred. But it didn’t.

We argued that in court, and both Facebook and the judge agreed with us.

(From TST’s complaint and the judge’s dismissal, respectively)

Note: As explained above, the statute defines the term “domain name,” and the case law provides further clarification. The Satanic Temple’s claim fails under both. In reverse order, cases in this circuit explain that there are two parts to a domain name: a top-level and a second-level. Post-domain paths like a Facebook page username are not included in that combination.

In plainer language, TST tried to argue that because its trademark (“The Satanic Temple”) appears in the part of a Facebook page’s URL that users can customize for themselves (a.k.a. the vanity URL, legally), someone who runs that Facebook page without express permission from TST is doing cyberpiracy under a law that has repeatedly been understood to exclude vanity URLs from its protection.

Essentially, TST wanted vanity URLs — something that can be created and modified by any user on demand, for next to no effort — to confer federally-protected property rights equal to those held by the people who actually own a website and have registered it within the Domain Name System (DNS). Charitably put, this is a stupid argument, and it was unsurprisingly dismissed in the first stage of the case, as we can see above.

Both of TST’s federal claims in the initial complaint (its accusations of hacking and cyberpiracy) revolve around an underlying assumption that if the words “The Satanic Temple” appear anywhere in the title or description of a platform, then that platform automatically becomes the de facto property of Cevin Soling, the owner of the trademark “The Satanic Temple” under his pseudonym “Malcolm Jarry” and via his corporation United Federation of Churches LLC, regardless of any actual external definitions of ownership or regardless of the countless people, industries, and legal bodies that have a stake in those definitions. This is a recurring theme that manifests in increasingly ludicrous ways over the course of this lawsuit, but TST’s theory of retroactive ownership of the volunteer labor of others shows up consistently in other contexts as well.

The initial complaint was dismissed in late February 2021. Even though The Satanic Temple was given permission to amend the holes in most of its allegations (except defamation, more on that in a bit), TST also opted to file a separate motion to have the cyberpiracy dismissal reconsidered. In an attempt to address the fact the relevant legislation in the “Anti-cybersquatting Consumer Protection Act” (ACPA) excludes the vanity URL that TST wanted it to protect, the Temple instead argued out of the blue that, actually, the ACPA should be expanded such that Facebook would be considered a “domain registration authority” on par with companies like Verisign who register .com and .net websites with the DNS.

Our lawyer’s background includes intellectual property, so he was able to navigate the contours of these laws and oppose the reconsideration without our assistance. Our commentary here is based off the overview of the DNS in the related document:

It’s beyond our technical knowledge or scope here to talk in detail about what the Temple’s kind of interpretation would mean, but it’s also not hard to see at least one clear possible outcome and what sort of interests would have stake in it, outside the petulant and myopic owners of TST.

From our non-expert understanding, the sort of expansion of the ACPA that TST argues for here would implicate millions of Facebook pages (and possibly other social media sites as well), and set the stage to make any number of them acceptable targets of frivolous cybersquatting lawsuits simply for having someone else’s trademark somewhere in their vanity URL.

Putting aside meme pages like ours for a second, such a ruling would also give an additional (however minor) weapon for companies to use against, say, consumer advocacy or employee unionization pages as well. Should Target Workers Unite be able to be accused and possibly bankrupted by a frivolous cyberpiracy lawsuit just because “Target” appears in its name and the company wants an easy shortcut to suppressing them?

Facebook is not the whole Internet, to be sure, but given that it’s still used for coordinating people with like interests based in targeted, systemic criticism, the argument that TST is making here would set the stage for a nationwide chilling effect on otherwise protected speech — and at the behest of far worse entities that, like The Satanic Temple, have a vested interest in not being discussed critically by the rest of us.

If TST even considered that possibility and its relationship to its so-called “freedom to offend,” they certainly didn’t let it affect the quality of the argument they actually filed.

We would argue that it is not only fortunate for us as defendants that TST’s argument here was dismissed for the farce that it was, but fortunate for everyone else too.

But hey, “the struggle for justice is an ongoing and necessary pursuit that should prevail over laws and institutions,” right?