Court Not At All Impressed By Chuck Johnson's Silly Lawsuit Against Twitter, Plans To Grant Anti-SLAPP Win To Twitter

from the slappity-slapp-slapp dept

Wed, Jun 6th 2018 10:44am — Mike Masnick

Back in January we wrote about infamous internet troll Chuck Johnson's absolutely ridiculous lawsuit against Twitter for kicking him off the service. As we noted at the time, the lawsuit appeared to be nearly a carbon copy of Dennis Prager's silly lawsuit against YouTube. And, if you recall, a court tossed that lawsuit earlier this year. And now it's clear that a court is about to toss Johnson's lawsuit as well on anti-SLAPP grounds.

On Tuesday, the court released a tentative ruling and lays out the many, many reasons why Johnson has no case at all, both under CDA 230 and the First Amendment.

Plaintiff further argues that Defendant is not entitled to the protection of the CDA because Defendant seeks to be treated both as a neutral content provider pursuant to the CDA, but at the same time asks for First Amendment protection for its editorial decision to terminate Plaintiff’s accounts. But this is not the standard for immunity under the CDA. (See 47 U.S.C. §230.) Plaintiff cites to 47 U.S.C. §230(c)(2), which requires a showing of good faith in order to be protected from civil liability by the CDA. Defendant, however, relies on subdivision (c)(1), which provides that “[n]o 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.” The heading of subdivision (c) is “Protection for ‘Good Samaritan’ blocking and screening of offensive material.” (Italics added.) Plaintiff fails to establish that Defendant is not entitled to protection under the CDA, i.e., Plaintiff fails to show that his claims are not barred by the CDA.

Plaintiff also fails to show that his claims can survive Defendant’s challenge based on Defendant’s First Amendment right. Defendant is a private sector company. Although it does invite the public to use its service, Defendant also limits this invitation by requiring users to agree to and abide by its User Rules, in an exercise of Defendant’s First Amendment right. The rules clearly state that users may not post threatening tweets, and also that Defendant may unilaterally, for any reason, terminate a user’s account. The rules reflect Defendant’s exercise of free speech. (See Hurley, supra, 515 U.S. at p. 574.) Plaintiff fails to show that his claims are not barred by Defendant’s First Amendment right to exercise independent editorial control over the content of its platform. Defendant’s choice to close Plaintiff’s account on the ground that Plaintiff’s tweet was threatening and harassing is an editorial decision regarding how to present content, i.e., an act in furtherance of Defendant’s free speech right. Defendant’s choice not to allow certain speech is a right protected by the First Amendment.

The court also laughs off the attempt by Johnson and his lawyers to get around all this by arguing that a well known Supreme Court case concerning shopping malls (Robins v. Pruneyard Shopping Center) somehow means that social media sites can't remove users. We've seen lots of people make this argument for why websites must post the speech of anyone who wants to use those websites, but no court in the land has ever agreed, and this California court certainly wasn't going to be the first.

Plaintiff’s reliance on Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 is misplaced and fails to defeat Defendant’s CDA and First Amendment protections. In Robins, the California Supreme Court held that the soliciting at a shopping center of signatures for a petition to the government is an activity protected by the California Constitution. The Court specifically noted that “[b]y no means do we imply that those who wish to disseminate ideas have free rein.” The Court reasoned: “A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations . . . would not markedly dilute defendant's property rights.” (Id. at pp. 910-911.) The case is distinguishable from the instant action, where Plaintiff’s tweet could reasonably be, and in fact was, interpreted as threatening and harassing, unlike activity that “would not markedly dilute defendant’s property rights.” (See Sprankling Decl. at Ex. D.) Moreover, Defendant’s rules were adopted to ensure that Defendant is able to maintain control over its site and to protect the experience and safety of its users.

Somewhat hilariously, Johnson's lawyer in the case, Robert Barnes, took to Twitter after the tentative ruling to not just announce a plan to appeal, but... incredibly... to claim victory.

Apparently, Chuck Johnson hired Baghdad Bob as his lawyer.

The key points that Barnes declares "victory" over both appear to involve a somewhat twisted interpretation of what the court is saying. On the first point, of the court declaring Twitter to be a "public forum," that is true, but specifically in the context of California's anti-SLAPP law. I mean, the ruling says that explicitly:

In the instant case, the parties appear to agree that (1) Twitter is a public forum for purposes of the anti-SLAPP statute...

The fact that it is a public forum for the purposes of California's anti-SLAPP statute has no bearing at all on whether or not Twitter is a "public forum" in the sense of spaces created by the government in which speech regulations are limited under the First Amendment. They both use the words "public forum" but they mean totally different things.

The second point, about Twitter's control over its platform being a "matter of public interest," is also specific to California's anti-SLAPP law, which requires the speech in question to be about a matter of public interest. That doesn't help Johnson's case at all, unless you're twisting this specific point concerning anti-SLAPP laws into believing it refers to the government having an interest in regulating how Twitter runs its website. But that would be a totally nonsense interpretation. Though it appears to be the one that Johnson's lawyer wants to go with. The fact that Twitter agreed to both of the points that Barnes is now celebrating (as is necessary under California's anti-SLAPP law) should show you why neither of these points is even remotely damaging to Twitter. And, no, this is not Barnes using 9th dimensional chess to get Twitter to admit to something that harms it elsewhere. This is just nonsense.

Either way, assuming Twitter holds on and wins the anti-SLAPP, it will mean that Johnson will be on the hook for Twitter's legal fees. One hopes that his lawyer informed him not only of this, but the fact that this would also include the additional fees from an ongoing appeal that he seems unlikely to win.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: anti-slapp, california, cda 230, chuck johnson, free speech, intermediary liability, public forum, robert barnes, section 230
Companies: twitter

25 Comments

If you liked this post, you may also be interested in...

Reader Comments

The First Word

“

the monster we created

In many ways I blame the US court system, including the Supreme Court, for encouraging these kind of lawsuits. Historically, a business was allowed to literally "choose its customers" just as a customer was allowed to choose a business establishment, based on any reason whatsoever. Then in the 1950s and 60s, courts stepped in and started acting as referees, creating such things as "protected classes" of customers that had to be served by a business against its will. There was indeed a time for that sort of intervention (especially to end enforced racial segregation in the post-slavery Southern states) but that time has long passed. This week's failure of 'gay wedding cake' case that threatened to be added to the ever-growing protected-class list was perhaps the rare exception.

Maybe it's about time to do away with all this legal nonsense and return to the time when a business was allowed to make its own decisions about how to treat its customers, as obviously, those that do a good job at the task will prosper and those that don't will fail. Starbucks did not need to lose a lawsuit before it changed its policies regarding Africans occupying tables and bathrooms without buying anything. No, Starbucks made the change because management [rightly] assessed that it was good for business. Free market forces can and do work, especially in the internet era when reputation will make or break a business. Maybe it's about time for judges to start throwing out these kind of lawsuits instead of continuing to try to referee everything that comes their way, 1960's style.

Perhaps this Twitter court judgement was a good step in that direction.

—Anonymous Coward

”

Subscribe: RSS

View by: Time | Thread

Anonymous Anonymous Coward (profile), 6 Jun 2018 @ 10:50am

Countdown to local trolls claiming victory...
Any bets on our local trolls making the claim that under Robins v. Pruneyard Shopping Center that Techdirt is a public forum and since it is based in California that being flagged by the community is illegal due to

under the California Constitution, individuals may peacefully exercise their right to free speech in parts of private shopping centers regularly held open to the public, subject to reasonable regulations adopted by the shopping centers

the California constitution that Techdirt's rules about flagging are unreasonable?

Three...Two...One...
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2018 @ 11:32am

the monster we created
In many ways I blame the US court system, including the Supreme Court, for encouraging these kind of lawsuits. Historically, a business was allowed to literally "choose its customers" just as a customer was allowed to choose a business establishment, based on any reason whatsoever. Then in the 1950s and 60s, courts stepped in and started acting as referees, creating such things as "protected classes" of customers that had to be served by a business against its will. There was indeed a time for that sort of intervention (especially to end enforced racial segregation in the post-slavery Southern states) but that time has long passed. This week's failure of 'gay wedding cake' case that threatened to be added to the ever-growing protected-class list was perhaps the rare exception.

Maybe it's about time to do away with all this legal nonsense and return to the time when a business was allowed to make its own decisions about how to treat its customers, as obviously, those that do a good job at the task will prosper and those that don't will fail. Starbucks did not need to lose a lawsuit before it changed its policies regarding Africans occupying tables and bathrooms without buying anything. No, Starbucks made the change because management [rightly] assessed that it was good for business. Free market forces can and do work, especially in the internet era when reputation will make or break a business. Maybe it's about time for judges to start throwing out these kind of lawsuits instead of continuing to try to referee everything that comes their way, 1960's style.

Perhaps this Twitter court judgement was a good step in that direction.
[ link to this | view in thread ]
That Anonymous Coward (profile), 6 Jun 2018 @ 11:38am

I'll repeat what I said on teh Twitters...

Couldn't have happened to a nicer alleged floor shitter.
[ link to this | view in thread ]
Dirkmaster (profile), 6 Jun 2018 @ 12:01pm

Simple formulas
Chuck Johnson =/ Good Journalist
Robert Barnes =/ Good Lawyer

Probably would be funnier if I knew where the "not equal" key was.
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2018 @ 12:22pm

Re: Simple formulas
you mean:

x != y
[ link to this | view in thread ]
Anonymous Anonymous Coward (profile), 6 Jun 2018 @ 12:31pm

Re: Simple formulas
Here you go: ≠
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2018 @ 12:51pm

Re: the monster we created

Historically, a business was allowed to literally "choose its customers" just as a customer was allowed to choose a business establishment, based on any reason whatsoever.

Historically, certain classes of business have been, since time immemorial, been considered as so "affected with a public interest, [so as to] cease to be juris privati only."

Then in the 1950s and 60s, courts stepped in…

Way back in 1883—

Mr. Justice Bradley for the Court inferentially found that innkeepers, "by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them."

(Heart of Atlanta Motel (1964), citing The Civil Rights Cases (1883).)
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2018 @ 12:57pm

Re: the monster we created
The exception in this case proved the rule to be just and necessary.
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2018 @ 1:15pm

Re: the monster we created

Then in the 1950s and 60s…

The Communications Act of 1934, as enacted by the 73rd Congress and signed into law on June 19, 1934, provided in Section 201:

(a) It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor; . . .

(b) It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination . . .

These principles were carried forward into the 1934 act from the 1887 Interstate Commerce Act. But they were not new even back in 1887.
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2018 @ 2:18pm

Re: Re: Simple formulas
Hint: searching for "not equal" on Wikipedia will bring up an article with the proper Unicode symbol.
[ link to this | view in thread ]
Stephen T. Stone (profile), 6 Jun 2018 @ 2:37pm

Re: the monster we created

Maybe it's about time to do away with all this legal nonsense and return to the time when a business was allowed to make its own decisions about how to treat its customers, as obviously, those that do a good job at the task will prosper and those that don't will fail.

And when you can assure everyone that every “unbound” company in the U.S. can and will be punished by the “free market” for discriminating against Black people, I’ll agree with you. But given that the South still exists—and trust me, I’ve lived here all my life—you simply cannot guarantee that a “free market” punishment will come to pass if a business owner puts up a “No Coloreds” sign. (If anything, it might increase business.) Spare us with this “businesses should be allowed to say ‘no gays, no blacks, no women’ ” crap; you cannot make a sale on that garbage while more than a thousand monuments to the Confederacy still stand in this country.
[ link to this | view in thread ]
Anonymous Anonymous Coward (profile), 6 Jun 2018 @ 2:57pm

Re: Re: Re: Simple formulas
I found it in my Character Map from Gnome:

≠

U+2260 NOT EQUAL TO

General Character Properties

In Unicode since: 1.1
Unicode category: Symbol, Math
Canonical decomposition: = U+003D EQUALS SIGN + ̸ U+0338 COMBINING LONG SOLIDUS OVERLAY

Various Useful Representations

UTF-8: 0xE2 0x89 0xA0
UTF-16: 0x2260

C octal escaped UTF-8: \342\211\240
XML decimal entity:

Annotations and Cross References

See also:
• = U+003D EQUALS SIGN
• ǂ U+01C2 LATIN LETTER ALVEOLAR CLICK

Equivalents:
• = U+003D EQUALS SIGN ̸ U+0338 COMBINING LONG SOLIDUS OVERLAY
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2018 @ 3:28pm

Re: Re: the monster we created
Here's the full paragraph in the Communications Act of 1934:

(a) Charges, services, etc.

It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

That paragraph was followed with this:

(b) All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful ..

It looked to me like the Communications Act of 1934 was concerned more with fair business practices and consistant pricing (rather than "charge whatever the public will bear") and less concern about kicking "protected" classes people out for no good reason. Perhaps a modern-day equivalent might be the issue of a baker charging twice as much for a "gay" wedding cake, rather than refusing to make one at all.

The 1887 Interstate Commerce Act and the Communications Act of 1934 involved the regulation of private corporations (Bell Telephone and railroad lines) that could be considered quasi-governmental public utilities that had no competition, and like all monopolies, were thus ripe for price gouging and other unethical behavior. Regulating such industries that were funded in part by tax money seems reasonable.
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2018 @ 4:16pm

Re: Re: Re: the monster we created

… Communications Act of 1934 was concerned more with fair business practices…

The 1887 Interstate Commerce Act and the Communications Act of 1934 involved …

I happen to have Mitchell v United States (1941) open in another tab right now. So, let me respond to your specific statement about the 1934 act, by referencing that case decided under the 1887 act. Mitchell involves a complaint of racial discrimination in the provision of interstate passenger rail service.

We have repeatedly said that it is apparent from the legislative history of the Act that not only was the evil of discrimination the principal thing aimed at, but that there is no basis for the contention that Congress intended to exempt any discriminatory action or practice of interstate carriers affecting interstate commerce which it had authority to reach. Paragraph 1 of § 3 of the Act says explicitly that it shall be unlawful for any common carrier subject to the Act "to subject any particular person . .. to any undue or unreasonable prejudice or disadvantage in any respect whatsoever." From the inception of its administration the Interstate Commerce Commission has recognized the applicability of this provision to discrimination against colored passengers because of their race and the duty of carriers to provide equality of treatment with respect to transportation facilities; that is, that colored persons who buy first-class tickets must be furnished with accommodations equal in comforts and conveniences to those afforded to first-class white passengers.

(Citations omitted.)

Now certainly, the early English law of common carriage was less concerned with racial discrimination than other unfair business practices. But our American institutions have for a long time now found certain unjust and unreasonable practices and prejudices to be especially pernicious and worthy of condemnation.
[ link to this | view in thread ]
Docrailgun, 6 Jun 2018 @ 11:56pm

Rage Furby gonna rage.
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2018 @ 3:41am

Re: Simple formulas
The backtick key on my keyboard (the key next to the 1 key) actually has the logical negation symbol ¬ as its shift-function.

I don't think that applies to US keyboards though.
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2018 @ 4:52am

Re: Re: the monster we created
Guarantee?!! Nothing, and I mean NOTHING guarantees that someone will be punished for an act that you may despise.

The free market may not, in the short term, completely ruin every business that chooses to act unreasonably based on race, religion, etc.. The idea that this sort of thing needs to be guaranteed is absolute idiocy.

However, if you actually believe in liberty, you'll realize that, in the long-run, "the people" have heart and compassion, and those sorts of business models will not thrive.

What's really objectionable is that you feel you should have the power to take away someone else's liberties in order to exert power to force actions you deem more reasonable. Why is it okay for you to get your way and not someone else? Once this sort of force is allowed, what kind of control is there, or can there be, to prevent this tyranny from spreading?

Allowing the government to usurp other's liberty in order to get your way is like the giving in the the 'dark side of the force'. Once you're seduced to that side, every problem needs to be solved that way.
[ link to this | view in thread ]
Wendy Cockcroft, 7 Jun 2018 @ 5:46am

Re: Re: Re: the monster we created
However, if you actually believe in liberty, you'll realize that, in the long-run, "the people" have heart and compassion, and those sorts of business models will not thrive.

Yeah... about that...

Cockcroft's Law 2 applies.
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2018 @ 5:52am

Re: Re: Re: Re: the monster we created
Jim Crow lynchings? Really?

Conversations with you must be really tiresome, full of all kinds of off-topic, unrelated thoughts.
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2018 @ 6:34am

Facebook, Twitter, Google, Microsoft, Apple, et al, have a target on their backs do to bad public images and having more assets than uses for them. The first three I avoid like the plague, am working on four and five. The gulf between the poor, middle class, and the wealthy in the States is reaching a breaking point. These types of corporations and their management will be the first to be made as scapegoats for the nations woes. Big Pharma, Oil, and Insurance are close behind. Once unemployment and energy prices rise again the shit will hit the fan. Already a politician in California being recalled for voting in favor of a gas tax.
[ link to this | view in thread ]
Wendy Cockcroft, 7 Jun 2018 @ 7:13am

Re: Re: Re: Re: Re: the monster we created
Racism either does or doesn't persist in the South. If it doesn't I'm off topic but if it does, I'm not.

Assume I'm on topic: I've just proved that "the people" are lacking in heart and compassion if they're willing to put up with racial segregation by businesses. Again.

It's been a very long run since the Civil Rights marches and we haven't moved far, have we?
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2018 @ 9:03am

Re: Re: Re: the monster we created

That paragraph was followed with…

Oh. Finally got around to noticing that I had earlier somehow labeled the beginning of § 202(a) incorrectly as § 201(b). Sorry for any confusion.

The post should have read—

§ 202(a) It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination . . .

Additionally, while yesterday I addressed one of your substantive points with reference to Mitchell (1941), perhaps I should address another one with an extract from ICC v B & O Railroad (1892).

Prior to the enactment of the act of February 4, 1887, to regulate commerce, commonly known as the Interstate Commerce Act, 24 Stat. 379, c. 104, railway traffic in this country was regulated by the principles of the common law applicable to common carriers, which demanded little more than that they should carry for all persons who applied, in the order in which the goods were delivered at the particular station, and that their charges for transportation should be reasonable.

Many of the railroads, which under the old common law “should carry for all persons who applied”, were not funded by the federal government in the same way as the Pacific Railroad.
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2018 @ 9:58am

Re: Re: Re: the monster we created

… quasi-governmental public utilities that had no competition…

The 1701 case before King's Bench of Lane v Cotton, which is still cited from time to time, contains a passage from Chief Justice Holt—

If on the road a shoe fall my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the King's subjects that will employ him in the way of his trade. If an innkeeper refuse to entertain a guest where his house is not full, an action will lie against him, and so against a carrier, if his horse be not loaded, and he refuse to take a packet proper to be sent by a carrier; . . . . If the inn be full, or the carrier's horses laden, the action would not lie for such refusal; but one that has made profession of a public employment, is bound to the utmost extent of that employment to serve the public.

(12 Mod. 472, 484; 88 Eng. Rep. 1458, 1464-5; footnotes omitted.)

The office of postmaster, which was the issue in that case, was then a government office by statute. But I deem it not quite right to say that common smiths or farriers, common innkeepers, and common carriers had no competition in England around the turn of 18th century.
[ link to this | view in thread ]
Anonymous Coward, 7 Jun 2018 @ 10:43am

Re: Re: Re: Re: the monster we created

12 Mod. 472 … 88 Eng. Rep. 1458

Another report of Lane v Cotton (K.B. 1701) is given in 1 Ld. Raym. 646; 91 Eng. Rep. 1332.
[ link to this | view in thread ]
Canuck, 7 Jun 2018 @ 7:49pm

Re: the monster we created
WTF? This shit is the First Word?

So blacks and LGBTQ types don't need any protection against discrimination?

And when they ARE discriminated against, they have no avenue to make them whole? Oh, the Internet will expose the bad guys, you say? That will not compensate any victim.
[ link to this | view in thread ]