Winning Through Losing

Over a year ago, when we lost our Supreme Court of the United States petition for certiorari, the condolences started streaming in from my friends and family. It was premature, though. We—my client, staff, and co-counsel—weren’t done appealing. Sure, we’d hit the end of the road with the courts, having had all 14 of our claims dismissed by the U.S. District Court for the Southern District of New York and the decision affirmed by the Second Circuit. My petite firm had blown through about a million dollars’ worth of illusory billable hours and killed an ungodly number of trees with all the briefings. But. We. Were. Not. Done.

It all began when my client, Matthew Herrick, a waiter-actor-model, exercised his right to leave an abusive and controlling relationship. His ex retaliated by impersonating Matthew on the gay dating app Grindr. Using Matthew’s picture and name, the ex would say Matthew had rape fantasies and then directly message with men to set up sex dates. Grindr’s patented geo-locating technology resulted in stranger after stranger going to Matthew’s home and the restaurant where he worked expecting sex. Some days, Matthew had as many as 23 visitors.

By the time Matthew arrived at my office, exhausted and traumatized, he had already gotten an order of protection and reported the matter to the police 10 times. Yet, the flow of strangers—over a thousand at that point—wasn’t slowing. The unwitting strangers would wait for him in the stairwells at home, other times following him into the bathroom at work. “What about Grindr?” I asked. “They’re in the exclusive position to help.” Matthew said he had reported the matter to them 50 times.

Grindr’s lawyers, when they finally responded, claimed Grindr lacked the technology to ban users. So, we sued. After all, if you’ve designed a geo-locating hook-up app without factoring in the arithmetic certainty that sometimes it would be put to malicious use by stalkers, rapists, and child predators, you’ve released a dangerous product into the marketplace.

A lot of people guffawed at the cockamamie approach of applying a product liability claim to tech. The courts all along the way said Grindr was immune from liability because of Section 230 of the Communications Decency Act, a 1996 law that to this day makes it almost impossible to bring tech companies into court. In every losing decision, the judges expressed regret that the law wouldn’t let them help Matthew.

One article about the case summed it up: “The judges agreed with Herrick on the moral argument, but with Grindr on the law.” That misalignment between morality and the law is why I could not give up on this case. So, we set out to ruin Section 230—a protection undeserved by the most powerful industry in the history of the world. After the certiorari denial by SCOTUS, our next appeal would be from the soapbox. I wrote a book talking about tech’s role in online maliciousness, spoke to hundreds of congressional staffers about this anachronistic law, weighed in on the drafting of three different laws to rein in Section 230, participated in a panel at the U.S. Department of Justice, discussed it in Monica Lewinsky’s upcoming documentary 15 Minutes of Shame, and wrote white papers, news articles, blogs, and tweets.

And then in October 2020, something amazing happened. Herrick v. Grindr LLC made it to the Supreme Court after all. In an unusual move, Justice Clarence Thomas wrote an advisory statement saying it would behoove SCOTUS to tackle a case about Section 230 because it was being interpreted so broadly that courts were granting immunity even on claims of design defects. There it was: a meaningful next step toward justice—a citation to Herrick v. Grindr.