. The Class Action That Cannot Be Certified: Procedural Obstacles and the Problem of the "Unreliable" Plaintiff

A. The Numerosity and Commonality Trap Federal Rule of Civil Procedure 23(a) requires that a class be "so numerous that joinder of all members is impracticable." At first glance, the TI community satisfies this requirement. Sheridan's 2020 research estimates that "as many as 0.66% of adult women and 0.17% of adult men in the western world may suffer the subjective experience of being group-stalked" . In the United States alone, this translates to approximately 1.37 million individuals. But numerosity is only the first hurdle. Rule 23(a)(2) requires "questions of law or fact common to the class." Here, the plaintiffs' own heterogeneity becomes a weapon against them. The TI community is not monolithic. Some members experience only "gangstalking"—coordinated surveillance by human perpetrators. Others report "electronic harassment" through directed energy weapons (DEWs). Still others describe "voice-to-skull" (V2K) technology that transmits auditory hallucinations directly into their consciousness . A court assessing commonality would ask: What common injury unites these plaintiffs? Is it the platforms' failure to moderate content that reinforces delusional systems? Is it the algorithmic amplification of conspiracy narratives? Is it the absence of meaningful intervention when users broadcast explicit paranoid content? The answers vary not only across the class but within each plaintiff's own timeline, as their delusional systems evolve in response to platform feedback loops. B. Typicality and the Credibility Problem Rule 23(a)(3) requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." This is where the legal profession's unspoken bias becomes determinative. A named plaintiff in a TI class action would necessarily be someone whose public identity is inseparable from their diagnosis. Their social media presence—the very thing giving rise to the lawsuit—would become Exhibit A in the defense's attack on their credibility. Defense counsel would mine years of posts for evidence of irrationality, inconsistency, delusional thinking. The plaintiff would be subjected to the very scrutiny they claim constitutes the injury. The Trammel v. Bradberry court's handling of schizophrenia is instructive. There, the court had to determine whether service on a schizophrenic defendant was valid absent a guardian's appointment. The court held that without a probate court adjudication of incompetence, the defendant could be served like any other person . But the opinion's careful parsing of competence—distinguishing between civil commitment, which does not automatically trigger guardianship, and formal adjudication of incompetence—reveals the law's deep ambivalence about mentally ill persons' capacity to participate in legal proceedings . A schizophrenic plaintiff seeking to represent a class would face this ambivalence magnified. They would be deemed competent enough to sue but not credible enough to win. Their testimony about harm—about the terror of believing oneself surveilled, about the physical sensations attributed to directed energy weapons—would be filtered through the defense's inevitable framing: this is symptom, not injury. C. Adequacy of Representation: Who Speaks for the Delusional? Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class." This provision, seemingly procedural, conceals a substantive judgment about who may speak for whom. In the TI context, adequacy of representation raises impossible questions. If the named plaintiff is actively delusional—if they genuinely believe they are being targeted by government agencies using microwave weapons—can they adequately represent class members whose experiences may differ? Conversely, if the named plaintiff is not actively delusional—if they have achieved sufficient insight to participate in litigation—are they still "typical" of a class defined by shared delusional content? The research literature on stalking and criminal responsibility complicates this further. Studies of psychotic stalkers distinguish between those whose stalking behavior is "an expression of mental disorder" and those whose conduct, while problematic, does not arise from psychosis . The former "are criminally not responsible for their acts and have to be treated in a psychiatric hospital" . The latter can be prosecuted. But what of plaintiffs whose claims arise from the experience of being stalked—even if that experience is delusional? The law has no category for this. D. The Predominance Problem: Proving Causation Across 1.37 Million Individual Minds Even if a class could be certified under Rule 23(a), it would still face the heightened requirements of Rule 23(b)(3): that "questions of law or fact common to class members predominate over any questions affecting only individual members." Here, the plaintiffs' case founders on the rock of causation. To hold social media platforms liable for reinforcing delusional systems, plaintiffs must prove that platform design caused specific harms. But causation in schizophrenia is not linear. The relationship between psychotic disorders and criminal responsibility, as the systematic review by Tsimploulis et al. makes clear, is "determined by sociodemographic, developmental, and clinical factors" that vary wildly across individuals . Schizophrenia is "often associated with diminished or abolished criminal liability" precisely because its manifestations are so heterogeneous . What would predominance mean in this context? It would require a court to find that platform algorithms generally cause harm to generally schizophrenic users—a finding that flies in the face of everything psychiatry knows about the disorder's variability. The very features that make schizophrenia a mitigating factor in criminal law—its capacity to "heavily influence empathy, judgment capacities, but also control of impulsiveness" in ways unique to each sufferer—become barriers to class treatment . II. The Substantive Claims That Cannot Survive: Section 230, Duty, and the Impossibility of Proving Harm A. Section 230: The Platform's Absolute Shield Any class action against social media platforms must contend with 47 U.S.C. § 230, which provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This immunity has defeated virtually every attempt to hold platforms liable for user-generated content. The TI plaintiffs' claims would face this immunity head-on. Their injury arises from content—the posts of other users who reinforce delusional systems, the algorithmic amplification of conspiracy narratives, the failure to remove content that explicitly names and targets individuals. All of this is quintessentially publisher conduct. Section 230 would bar it. Some courts have recognized exceptions where platforms' own conduct—their design choices, their algorithmic recommendations—crosses the line from passive publication to active creation. But these exceptions are narrow and fact-intensive. Proving that a platform's recommendation algorithm affirmatively created harmful content—rather than merely arranged content created by others—requires discovery that platforms will fight to the death to prevent. B. The Duty Problem: Who Owes What to the Delusional? State tort law requires plaintiffs to establish that defendants owed them a duty of care. In the TI context, what duty do platforms owe to users with schizophrenia? The Trammel court's analysis of the "special relationship" doctrine is instructive. There, the plaintiff sought to hold a father liable for his schizophrenic son's violent acts, arguing that the father's knowledge of the son's condition created a duty to control him. The court rejected this, holding that the father's living arrangement with his adult son did "not create either the right or exercise of physical control over the behavior of a mentally ill person necessary to create the special relationship" . If a father living with his schizophrenic son owes no duty to control him, what duty does a social media platform owe? The platform has no physical control over its users. It cannot compel medication adherence, cannot initiate commitment proceedings, cannot intervene in a psychotic episode. Its relationship with users is entirely virtual—a connection that the law has consistently refused to treat as creating affirmative obligations to prevent harm. C. Proving Harm: The Epistemic Injustice of Delusional Injury Even if duty and immunity could be overcome, plaintiffs would still face the impossible task of proving damages. What is the monetary value of a reinforced delusion? How does one quantify the terror of believing oneself surveilled by government agents using microwave weapons? The research on neurologic disorders and criminal responsibility highlights a deeper problem: the law's difficulty in "appreciating the nature of the relevant disorder and its impact on behavior" . Courts are comfortable with clear categories—voluntary action, mens rea, insanity—but struggle with the messy reality of how delusions actually operate . The psychotic "is not doing what he thinks he's doing, but something else; he's out of touch with the world" . But being out of touch with the world does not make one out of touch with pain. The terror is real. The suffering is real. The law has no language for this. D. The Hate Crime Framework: Why Disability Doesn't Count The hate crime prosecution article in this symposium highlights a parallel problem: prosecutors' reluctance to charge hate crimes even when evidence exists . The barriers identified—insufficient evidence, reluctance to see bias as motivating, inadequate officer training—mirror the barriers facing TI plaintiffs . But disability-based hate crimes face an additional hurdle: the law's failure to take them seriously. The California Attorney General's data cited in the article shows that of nearly 2,000 reported hate crimes, only five went to trial . None of those involved disability. The very concept of a "hate crime" against the mentally ill remains largely unrecognized in American jurisprudence, despite abundant evidence that this population experiences disproportionate victimization. The TI community's claim is, at its core, a claim of disability-based harassment. They are targeted because of their mental health conditions—not in spite of them. The perpetrators who reinforce their delusions, who validate their paranoia, who drive them deeper into psychosis, are exploiting their disability. This is the essence of a hate crime. And the law refuses to see it. III. The Refusal to See: Why Lawyers Will Not Bring These Cases A. Professional Stigma and the "Crazy Client" The formal legal analysis above explains why TI class actions would fail. It does not explain why they have not been brought—why, despite the existence of organizing TI communities, despite documented harm, despite the 1.37 million potential plaintiffs, no major firm has touched this. The answer lies in professional stigma. Lawyers do not bring cases they cannot win, but they also do not bring cases that associate them with clients they cannot respect. The schizophrenic plaintiff—disorganized, paranoid, potentially hallucinating in the deposition room—is the nightmare client. They cannot be controlled. They cannot be trusted. They will say things that undermine their own case. They will believe things that make them unbelievable. The research on stalking and competence to stand trial identifies a parallel problem: "severe psychiatric symptoms—in particular, disruptions in reality testing" pose "special challenges for mental health professionals who assess" accused stalkers . If professionals struggle to assess defendants with these symptoms, how much more difficult to represent plaintiffs with them? B. The Optics Problem: TI Narratives as Legal Liability There is a deeper fear: that association with TI communities will taint the lawyer by association. The TI narrative is, to the outside world, indistinguishable from madness. Voice-to-skull technology. Directed energy weapons. Government mind control programs. These are not the stuff of sympathetic plaintiff profiles. They are the stuff of ridicule. A lawyer who files a TI class action knows exactly how it will be covered: as a lawsuit by crazy people against the Internet. The serious claims—about algorithmic reinforcement of delusion, about platforms' failure to intervene in psychosis, about the real-world violence that follows untreated paranoia—will be buried under the weight of the unbelievable. The clients' credibility will be the story. The lawyer's judgment will be questioned. The case will become a cautionary tale. C. The Funding Problem: No Damages, No Fees Class actions are expensive. They require extensive discovery, expert witnesses, years of litigation. Plaintiffs' firms fund them on contingency, betting that a substantial recovery will justify the investment. In the TI context, what is the recovery? Section 230 bars damages based on content. State tort law requires proof of physical injury that cannot be shown. The survivors of those killed by untreated schizophrenics have clearer damages—wrongful death, loss of consortium—but their causation problems are even more severe. Proving that a shooter's delusions were caused by social media, rather than merely expressed there, requires expert testimony that may not exist. The economics do not work. No rational plaintiffs' firm invests millions in a case that cannot produce millions in return. D. The Alternative: Why Lawyers Choose Easy Cases The contrast with other mass torts is instructive. Pharmaceutical litigation—against opioid manufacturers, against antipsychotic marketers—offers clear damages, identifiable plaintiffs, and defendants with deep pockets. Social media litigation—against platforms for addicting teenagers, for facilitating sex trafficking—offers sympathetic plaintiffs and measurable harm. TI litigation offers none of this. Its plaintiffs are unsympathetic. Its harms are unmeasurable. Its defendants are immune. Its causation is speculative. Lawyers are not stupid. They pursue cases they can win. This one, they cannot. IV. The Case for Certifying the Uncertifiable: Why the Obstacles Should Compel, Not Defeat, Litigation A. The Structural Violence Argument The preceding analysis suggests that TI class actions are doomed. This Article's final argument is that this very doom—the impossibility of redress—is itself the injury. Consider what the TI plaintiff experiences: a platform architecture that renders their narrative legible to machines but invisible to humans. An AI moderation system that flags their content without understanding its context. A research community that studies them as data points without intervening in their distress. A policing apparatus that monitors them for risk without addressing its sources. And a legal system that refuses to hear them because they are, by definition, unbelievable. This is structural violence. It is the violence of being seen but not heard, of being watched but not helped, of being studied but not treated. The TI plaintiff is not merely failed by each institution in turn. They are failed by the relationship between institutions—the triangulation of observation that makes them legible to every system except the one that could provide redress. B. Disability-Based Hate Crime as the Unrecognized Framework The hate crime framework, properly understood, should encompass this. The TI plaintiff is targeted because of disability. The perpetrators who reinforce their delusions—whether human commenters or algorithmic recommendation systems—are exploiting their vulnerability. The platforms that design these systems are creating environments where such exploitation is inevitable. The California hate crime prosecution article documents prosecutors' reluctance to charge even clear cases of racial violence . But it also documents victims' persistence—their refusal to accept that bias-motivated harm should go unaddressed . The TI community's persistence in organizing, in documenting, in demanding recognition, reflects the same refusal. They will not accept that their disability makes them unhateable. C. The Role of the Survivors: Wrongful Death as Entry Point The survivors of those killed by untreated schizophrenics occupy a different position. Their claims are not complicated by delusional content. Their injuries are measurable. Their plaintiffs are sympathetic. A wrongful death action against a social media platform, brought by the family of someone killed by a shooter whose delusions were nurtured online, would avoid many of the TI class action's obstacles. The plaintiff is not the shooter but the victim. The harm is not reinforced delusion but death. The causation, while still complex, is at least traceable: the shooter consumed content, the content reinforced delusion, the delusion motivated action. Such a case would still face Section 230. It would still face duty problems. But it would not face the credibility problem. And that, perhaps, is the entry point—the case that opens the door to the class action that cannot be certified. D. The Ethical Imperative: Why Lawyers Must Bring These Cases Anyway This Article's final argument is not legal but ethical. Lawyers bring cases they cannot win because winning is not the only measure of success. They bring cases to document. To expose. To create records that future litigants can use. To force discovery that reveals what platforms know about their role in reinforcing psychosis. The TI class action will likely fail. Every procedural obstacle identified above will be raised, and most will be sustained. But the failure itself will be instructive. It will reveal the legal system's incapacity to address structural violence against the mentally ill. It will force courts to articulate why Section 230 immunity extends to algorithmic amplification of paranoid content. It will create a record of platform knowledge—internal documents showing what engineers knew about how their systems affected vulnerable users. That record has value. It can support legislation. It can inform regulation. It can educate the public. And it can, perhaps, provide some measure of recognition to the 1.37 million Americans whose suffering has been legally invisible. The lawyer who brings this case knows they will lose. They bring it anyway because the loss is the point. Conclusion: Watching the Watchers The experiment that began this inquiry revealed something uncomfortable: that the systems designed to read us are also systems designed to ignore us. The AI sees the sequence but does not understand it. The researcher studies the pattern but does not intervene. The policing algorithm assesses the risk but does not prevent it. And the lawyer—the lawyer watches all of this and turns away. This Article has argued that the turning away is itself structural. The legal profession's refusal to represent TI communities is not merely professional caution but systemic complicity in the violence of being seen but not helped. The obstacles to class certification are real. Section 230 immunity is real. The causation problems are real. But so is the suffering. So is the death. So is the failure. The question this Article leaves is whether the legal profession can do better. Whether it can find a framework that takes disability-based harassment seriously. Whether it can represent clients whose credibility is always already compromised. Whether it can bring cases it knows it will lose because losing is the only way to show what is being lost. The watchers are watching. The question is whether anyone will watch them back. References Stewart, G.H. (2020). Gangstalking: A Real Phenomenon or "It's All Just in Your Head"? Sorabhji, S. (2024). Commit A Hate Crime: Serve No Time? IndiaWest News. Trammel v. Bradberry, 256 Ga. App. 412 (Ga. Ct. App. 2002). Morse, S.J. (2013). Neurologic disorder and criminal responsibility. ScienceDirect. Tsimploulis, G., et al. (2018). Schizophrenia and Criminal Responsibility: A Systematic Review. The Journal of Nervous and Mental Disease, 206(5), 370-377. Mossman, D. (2007). Stalking, Competence to Stand Trial, and Criminal Responsibility. In D.A. Pinals (Ed.), Stalking: Psychiatric perspectives and practical approaches. Oxford University Press. Dressing, H., Foerster, K., & Gass, P. (2011). Are Stalkers Disordered or Criminal? Thoughts on the Psychopathology of Stalking. Psychopathology, 44(5), 277-282.