A Somersworth café owner has taken Facebook to the New Hampshire Supreme Court, alleging the social media giant is trying to skirt accountability after deleting, without warning or explanation, the café’s Instagram account and content in 2018.

Teatotaller owner Emmett Soldati is known for using his café and its social media accounts to support LGTBQ+ rights and acceptance, often describing the High Street business as a "queer hipster oasis." While doing this, some of Teatotaller’s more daring billboards have been vandalized in recent years.

Teatotaller’s case against Facebook isn’t about the content, though. What makes it unique from other cases is Soldati doesn’t allege Facebook deleted Teatotaller’s Instagram account due to the content posted or due to complaints lodged by other users about said content. He also doesn’t allege anything about whether Facebook deleted the content for valid reasons, or out of negligence.

Rather, his case is a breach of contract suit. Soldati alleges Facebook accepted Teatotaller’s payments for Instagram advertising, subsequently deleted the @Teatotaller account without explanation, and later distorted and abused federal immunity protections to convince a circuit court judge Soldati couldn’t actually seek redress through the legal pathways Instagram’s terms of use set forth as acceptable.

"To me there was something so overblown about their response that it felt clear this is the way they silence small businesses (and) individual account users," Soldati said during an interview this week.

Soldati is requesting the opportunity to provide oral arguments in Supreme Court.

Facebook filed a brief late Friday evening to the state Supreme Court. In its summary of argument, Facebook argues: “The trial court correctly dismissed plaintiff’s complaint for two independent reasons, and this court can affirm the dismissal order on either ground. First, the trial court correctly held that the Instagram terms of use barred plaintiff’s claim.”

The brief further stated: “Second and alternatively, even if the terms of use did not bar plaintiff’s claim, the trial court correctly held that Section 230(c)(1) of the CDA, 47 U.S.C. § 230, provides Facebook immunity from suit from this claim.”

Stephen Soule, of Burlington, Vermont, firm Paul Frank + Collins, is one of the attorneys representing Facebook. Soule declined comment Thursday and said he anticipated Facebook’s brief would be filed Friday, which is the deadline set forth by the Supreme Court.

Soldati is representing himself as a pro se litigant. He doesn’t have a law degree or legal training. He is the son of former Strafford County Attorney Lincoln Soldati, however, Emmett says his father, who was also a respected defense attorney and retired in 2017, hasn’t assisted him with his briefs or case beyond providing moral support.

Soldati’s argument, that Facebook is using deceptive practices to block his breach of contract claims in court, hinges upon the federal Communications Decency Act of 1996.

Section 230 of the CDA often plays a key role during free speech claims involving social media and big tech companies. It’s referenced in Facebook and Instagram’s terms of use, and Facebook’s attorneys cited it in arguments last year when Soldati’s case originated in Dover District Court, one of New Hampshire’s circuit courts.

According to The Associated Press, Section 230 has often served as a broad legal shield for social media platforms like Facebook, both for content they carry and for removing postings they deem offensive. In recent years, lawmakers have proposed eliminating or greatly reducing the content protections afforded by Section 230, citing concerns Facebook, Google and other Silicon Valley leaders don’t do enough to curb terrorist propaganda and misinformation.

However, neither Section 230 nor Instagram’s terms of service provide blanket immunity from the type of breach of contract claims and direct damages Teatotaller has lodged, according to attorney Cam Shilling.

Shilling works at McLane Middleton, a law firm with offices in Portsmouth, Manchester, Concord and the Boston area. Shilling is the chair of his firm’s information privacy and data security group and has experience litigating things like social media user issues.

Shilling said what has occurred with Teatotaller and Facebook "seems to be a really unusual circumstance."

Likening the case to a David versus Goliath fight, Shilling said he believes the case will be an interesting one that could potentially end up with an appeal in U.S. Supreme Court, given the arguments and ramifications.

"It’s rare to see a social media operator just randomly terminate a user account," Shilling said. "Site operators make money off users and advertising to them. They’re not in the business of denying people access to their platforms … so it’s extremely rare that a user like Teatotaller would be disconnected from a platform for just no reason."

Soldati said that rarity is exactly why he took Facebook to small claims court in the summer of 2018, in accordance with the narrowly defined terms contained with the Instagram terms of service.

His initial goal was to get Facebook to enter informal mediation. He said he wanted to understand why Facebook terminated Teatotaller’s Instagram account on June 6, 2018, and why the company and its support staff wouldn’t provide a reason for a decision that stripped his business’ biggest marketing tool.

"I had no window," Soldati said.

Soldati’s internet protocol address wasn’t blocked in conjunction with the account deletion. He was later able to create a new Teatotaller account, but wasn’t able to restore the previous one’s content. It took more than a year for Teatotaller's new Instagram account to achieve the more than 2,000 followers the original account had when it was deleted, he said.

Soldati said he decided to pursue the case more fully when Facebook responded in ways, he believes, were designed to silence him.

Despite small claims court being spelled out as the means of recourse in Instagram’s user contract, Facebook argued Dover District Court’s small claims court didn’t have jurisdiction.

Facebook also argued Soldati hadn’t proven the merits of his arguments — despite the small claims process not affording him the ability to have a hearing on the merits — and argued Facebook shouldn’t be named as the defendant because it isn’t connected to Instagram, a company it owns.

"(They used) a lawyer to waste my time with these total strawmans, total fabricated arguments," Soldati said. "They cited 15 different case law precedents about why they’re immune and blah, blah, blah. I can just imagine anyone being like, ‘How can I approach them?’"

Following a Feb. 5, 2019, hearing in Dover District Court, the court ruled it did have jurisdiction and that Facebook should be named. However, the court granted Facebook’s motion to dismiss while supporting the immunity arguments Facebook made using the CDA and Instagram’s terms of service.

Soldati alleges the court erred when it based its decision on the abridged version of the terms of service Facebook provides. Soldati also alleges the court erred in applying CDA protections because none of the case law Facebook cited involved plaintiffs who were in a fee for service contract like Teatotaller was.

"This is uncharted territory in terms of digital," Soldati said. "Jurisprudence, legal scholars, justices — they don’t necessarily keep up with Facebook. They might not even know what Snapchat is. And it’s clear that the defendant has used that to their advantage (during legal battles)."

When it comes to the CDA, Shilling said Congress and lobbyists — not Facebook — are responsible for the broad exemptions’ creation and continued existence.

He said there should be protections to shield online content providers from liability if they eliminate content that may be potentially damaging or socially harmful.

At the same time, Shilling said the Teatotaller case highlights "one of the biggest societal problems of the information age right now."

"The question is, ‘Who owns Facebook?’" Shilling said. "Not the corporate entity, but the online presence. Is it Facebook, in the sense that they can create a contract that defines the terms of use for this space and define those terms extremely strictly? Or, is it the individuals who use the space, the market square of today?"

Soldati contends social media platforms like Facebook and Instagram do serve as digital market squares, given their stranglehold on their mediums.

Shilling said he doesn’t think the question has been entirely answered.

"I think social media (companies) have done a really good job of avoiding creating conflicts that would push the courts and government regulators from carving this space out as public space," he said.

When asked whether Facebook’s approach with Teatotaller could be interpreted as Facebook attempting to prevent legal precedent that could ultimately lead regulators to make its platform a public space, Shilling said it would be "dangerous" to speculate.

He suggested it could be more simple, that Facebook in this instance could simply be "an extremely large corporate entity that hasn’t paid enough attention" to figure out how to clearly communicate and respond with users who believe their contracts were breached.

Soldati said he finds such a possibility problematic, as well as a really important reason to fight Facebook for accountability through the court system.

"Sure, some people might have illegitimate claims that actually don’t follow the terms of service. I’m sure thousands of people do and (companies like Facebook) want to separate those," Soldati said. "But it has for sure silenced some legitimate ones.

"At what point do we say, ‘Maybe technology companies should have more responsibility than we think?’"