Image: Darrin Loeliger (The Noun Project)

If you or a loved one has been muted in a video game, you may not be entitled to financial compensation. Exposure to muting might finally wake you up to the idea that there are consequences to your actions. Please do wait. Do not call now!

This take on a weirdly beloved commercial from the ‘90s is brought to you in part by a federal court in Pennsylvania, which recently ruled against Runescape streamer Amro Elansari, who sued developer Jagex after the company muted him in the game last year, taking away his ability to communicate with other players. In a terse, largely handwritten lawsuit (via Vice), Elansari, who said he’d invested over 2,000 hours in the game, claimed that Jagex muting him constituted “violation of due process,” “discrimination,” and an attack on his “free speech” and “human rights.”

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Initially, U.S. Eastern District Judge Mark A. Kearney dismissed the case. In July of 2019, Kearney wrote that “these allegations cannot state a plausible constitutional claim” because “the First Amendment and its constitutional free speech guarantees restrict government actors, not private entities.”

So, Elansari appealed. That also didn’t work out for him. Earlier this month, the United States Court of Appeals for the Third Circuit tossed the suit, taking aim at both Elansari’s first amendment claims and the idea that he’d been discriminated against “compared to all other players who were not muted.”

“Title II prohibits ‘discrimination… on the ground of race, color, religion, or national origin,’” wrote the Court of Appeals. “Even generously construing Elansari’s complaint to raise a claim of public accommodations discrimination and assuming that Elansari can bring such a claim in this context, at no point either in the District Court or on appeal has Elansari alleged losing access to Jagex’s online game to due discrimination based on any grounds protected by Title II.”

The Eastern District Court has heard from Elansari a lot recently. He has filed ten suits in the past year and a half according to Pennlive, which first reported on the Jagex suit. In November of last year, the Court of Appeals similarly did away with a suit in which Elansari claimed he’d been scammed by Tinder. (Truly, who among us has not had a crappy date and taken it to the United States Court of Appeals? Let he who is without sin cast the first stone, I say.)

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Now, perhaps there is something worth interrogating when it comes to online platforms and the increasingly government-like role they can occupy. University of California Irvine School of Law special rapporteur on freedom of opinion and expression David Kaye wrote in his 2019 book Speech Police: The Global Struggle to Govern the Internet that “today’s platform behemoths... have become institutions of governance, complete with generalized rules and bureaucratic features of enforcement. They have struggled to figure out how to police content at the scale to which they have grown. Often defensive, their business model involves acquiring user content and marketing what they learn about users to third-party advertisers. Their content policies, and their content policing, are nearly impossible to disentangle from their economic interests.”

Those economic interests, combined with a general lack of transparency, make for a less than ideal situation when it comes to platforms like Facebook, Twitter, YouTube, Twitch, and the like. These platforms have taken on governmental roles, but without governmental oversights. Many games similarly function as platforms, albeit smaller ones. Games should absolutely moderate their communities, so as to prevent bad seeds from taking root and choking the life out of player bases, but there really needs to be a less opaque and perhaps more standardized process in place for doing so. Perhaps, by demanding such a thing, Elansari is just ahead of his time. But, more likely, he’s just incredibly bad at writing lawsuits, understanding law, and picking his battles. 

Kotaku senior reporter. Beats: Twitch, streaming, PC gaming. Writing a book about streamers tentatively titled "STREAMERS" to be published by Atria/Simon & Schuster in the future.

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