California Appeals Court Says Section 230 Immunizes Twitter From Banned User's Lawsuit

from the being-shown-the-exit-is-not-a-breach-of-contract dept

Back in 2019, a California court tossed a lawsuit brought by a self-described feminist who had her Twitter account banned following some posts targeting transgender people. Meghan Murphy tweeted enlightening things like "men aren't women tho" and "how are transwomen not men?" She also "deadnamed" transsexuals, identifying them using their former gender/names, something Twitter's rules explicitly prohibit.

The court didn't care much for Murphy's proposed class action lawsuit, pointing out that Twitter is free to remove users and content for any and all reasons, even reasons it hadn't yet added to its official list of rules. (The deadname prohibition came after Murphy's account was permanently suspended.) This may seem unfair, but that's the rules people agree to when using a platform provided by others.

Beyond that, there's Section 230, which shields Twitter from exactly these kinds of lawsuits. The court pointed out Twitter's editorial decisions (i.e., the removing of her account and its content) do not remove the platform's Section 230 protections. In fact -- contrary to inexplicably popular belief -- Section 230 of the CDA expressly provides for good faith moderation efforts and does not limit them to removing only illegal or illicit content.

The court tossed the lawsuit and Murphy appealed. Murphy's second pass doesn't go any better than her first. And, again, it's Section 230 that's instrumental to this second dismissal. From the decision [PDF]:

Under section 230, interactive computer service providers have broad immunity from liability for traditional editorial functions undertaken by publishers—such as decisions whether to publish, withdraw, postpone or alter content created by third parties. Because each of Murphy’s causes of action seek to hold Twitter liable for its editorial decisions to block content she and others created from appearing on its platform, we conclude Murphy’s suit is barred by the broad immunity conferred by the CDA.

The court notes Murphy's attempt to route around Section 230 by claiming this is about broken contracts (the numerous changes made to Twitter's Rules over the years, as well as its promise of 30-day notice prior to permanent suspension of accounts). The court also notes it's not going to entertain a bunch of not-so-clever bullshit clearly intended to keep the court from discussing Section 230 immunity.

Murphy takes issue with both the second and third prongs of the section 230 test as they relate to her claims. She contends section 230(c)(1) cannot apply in this case because the “only information at issue is Twitter’s own promises,” not “ ‘information provided by another content provider,’ ” and because she seeks to treat Twitter not as a publisher of information provided by others, but as a promisor or party to a contract.

[...]

In assessing whether a claim treats a provider as a publisher or speaker of user-generated content, however, courts focus not on the name of the cause of action, but whether the plaintiff’s claim requires the court to treat the defendant as the publisher or speaker of information created by another. (Barnes, supra, 570 F.3d at pp. 1101–1102; Cross, supra, 14 Cal.App.5th at p. 207.) This test prevents plaintiffs from avoiding the broad immunity of section 230 through the “ ‘ “creative” pleading’ of barred claims” or using “litigation strategy . . . to accomplish indirectly what Congress has clearly forbidden them to achieve directly.”

In a footnote, the court points out that it sees through Murphy's attempted workaround because, well, it's so transparent. If there was a serious breach of contract, there'd be some cognizable injury to be addressed. There's nothing of the sort in Murphy's allegations.

Although Murphy also points to the allegations that Twitter failed to give her 30 days’ notice of the changes to the Hateful Conduct Policy and that Twitter applied its new policy retroactively as breaches of clear and well-defined promises, the gravamen of each of her causes of action concerns Twitter’s editorial decisions not to publish content—as reflected by the fact that she alleges no specific injury from the alleged notice and retroactivity violations but complains instead of the harm caused by Twitter’s ban on her and others’ free speech rights.

And precedent backs the application of Section 230 to this case -- which actually deals with Twitter's removal of a user's account and content, rather than a breach of contract. Twitter made no promises it would keep users and their accounts alive unless specific things happened. Instead, it retained its right to refuse service to users, just like pretty much any other private business in the nation.

Here, Murphy’s allegations that Twitter “enforced its Hateful Conduct Policy in a discriminatory and targeted manner” against Murphy and others by removing her tweets and suspending her account amount to attacks on Twitter’s interpretation and enforcement of its own general policies rather than breach of a specific promise.

Twitter has no contractual obligation to continue to do business with Meghan Murphy. And its decision to end this relationship is immunized from legal liability by Section 230 of the CDA. Murphy's case is dismissed for the second time and Twitter will be allowed to recover its legal costs for defending itself from this bad faith lawsuit. Murphy can always try this again in federal court, but she's not going to get any further doing that. She's only going to keep blowing her own money on bad litigation.

Filed Under: bans, california, content moderation, meghan murphy, section 230
Companies: twitter

Self-Described Feminist Loses Lawsuit Against Twitter For Banning Her Account

from the 'your-opinion-isn't-welcome-here'-said-the-private-company dept

A California court has tossed a self-described feminist's lawsuit against Twitter for being kicked off the platform. [h/t Adam Steinbaugh]

Meghan Murphy was banned from Twitter for violating the terms of use with tweets stating "men aren't women tho" and "how are transwomen not men?" She also posted tweets referring to certain transgender women as "men," which contained personal information about their previous male identities. Twitter gave several warnings to Murphy that these tweets violated its Hateful Conduct Policy before banning her completely.

Murphy then sued, filing a putative class action lawsuit against the social media service that alleged a variety of contractual violations. She alleged the updated Hateful Conduct Policy hadn't been enacted at the point she was accused of violating it -- specifically the additions that made targeting or "deadnaming" transgender people a violation of the rules.

Murphy hoped to have the court find in her favor and bind Twitter to a large number of stipulations. From the decision [PDF]:

[M]urphy seeks a broad range of injunctive relief, including orders prohibiting Twitter from enforcing its "misgendering" rule, directing it to restore access to any accounts it has suspended or banned for violation of that rule, prohibiting it from promulgating or enforcing any other rules or policies that discriminate based on viewpoint, ordering it not to make material changes to its user agreement without providing 30 days' advance of the changes, prohibiting it from attempting to enforce any changes in its User Agreement retroactively, requiring it to remove the purportedly unconscionable provisions in its Terms of Service governing suspending or banning accounts, and requiring Twitter to "issue a full and frank public correction of its false and misleading advertising and representations to the general public that it does not censor user content…"

Not included in this recitation of redresses is the fact that Twitter reserves the right to remove accounts for "any or no reason," which may be bullshit, but it's bullshit Murphy agreed to when she created her now-banned account.

Twitter responded with an anti-SLAPP motion and a recitation of Section 230. The court finds the anti-SLAPP law does not apply because Murphy's complaint is fashioned as a class-action lawsuit seeking relief for her and others like her, rather than seeking to prevent Twitter from engaging in public interest speech of its own.

But Section 230 bars everything else. Contrary to popular belief, Section 230 immunity isn't nullified by moderation activity. In fact, Section 230 encourages good faith moderation efforts and specifically notes this does not remove the immunity given to service providers. Trying to use moderation efforts against platforms in lawsuits like these is a non-starter.

That this case involves Twitter's decision to take down content rather than post it is immaterial: "No logical distinction can be drawn between a defendant who actively selects information for publication and one who screens submitted material, removing offensive content. 'The scope of immunity cannot turn on whether the publisher approaches the selection process as one of inclusion or removal, as the difference is one of method or degree, not substance.'"

Furthermore, attempting to dodge Section 230 immunity with allegations of breached contracts, etc. isn't going to work either. What Murphy claims is a contractual violation is nothing more than the moderation efforts Section 230 encourages.

[A]ll of her claims challenge Twitter's interpretation and application of its Terms of Service and Hateful Conduct Policy to require Murphy to remove certain content she had posted in her Twitter account, to suspend that account, and ultimately ban her from posting from Twitter due to her repeated violations of the Terms of Service and Policy. All of those actions reflect paradigmatic editorial decisions not to publish particular content, and therefore are barred by Section 230.

Murphy's lawsuit is dead, at least in this court. Twitter's motion to demurrer is granted "without leave to amend," which indicates this complaint isn't fixable. This doesn't prevent Murphy from trying again at the federal level, but the outcome won't be any different.

Yes, being deplatformed sucks, especially when it seems -- at least subjectively -- the platform isn't consistent in its moderation efforts. But let's be clear about what platforms actually owe users: nothing. The terms of service quoted in this lawsuit make it clear Twitter has zero obligations to its users, whose accounts it can remove without cause. The guidelines may give some warning about what behavior won't be tolerated, but ultimately, users are at the mercy of the service provider.

Let's also be clear about this: Section 230 immunity does not make this situation worse. It actually allows more people to use these services, rather than fewer. Without this immunity, we wouldn't be seeing a trickle of stupid lawsuits trying to drag the government into platform moderation. We would see a steady stream of litigation that would only encourage swifter removals for less cause and a stifling of speech of all varieties across all platforms.

Filed Under: cda 230, content moderation, hateful content, meghan murphy, section 230
Companies: twitter