When It Came to @RealDonaldTrump, Twitter Couldn’t Please Everyone–Rutenberg v. Twitter

April 14, 2021 · by · in Content Regulation

The plaintiff Maria Rutenberg (a lawyer, perhaps not surprisingly) was unhappy Twitter shut down the @realdonaldtrump account, which meant she lost the opportunity to read and engage with Trump’s tweets. So, represented by a lawyer (Mark Javitch), she sued Twitter for violating her civil rights. It only takes a few pages for the court to say that Twitter isn’t a state actor, Section 1983 doesn’t apply to it, case closed:

Rutenburg makes no allegation that Twitter exercised any state right or privilege to restrict her access to former President Trump’s Tweets…At best, the amended complaint merely describes how Twitter using its own technical means reportedly disabled, removed, and otherwise restricted former President Trump’s Tweets and accounts. None of this has any connection with the exercise of authority by a sovereign state.

It is undisputed that Twitter is a private company. Federal courts have uniformly rejected attempts to treat similar social media companies as state actors under Section 1983 [cites to Prager U v. Google, Howard v. AOL, Ebeid v. Facebook, Shulman v. Facebook, Kinderstart v. Google, Langdon v. Google, Cyber Promotions v. AOL, Halleck]….Simply put, Rutenburg cannot transform Twitter into a “state actor” based on an allegation that the company “administered” former President Trump’s account…

Rutenburg conflates decisions finding that former President Trump’s usage of Twitter is a public forum, constraining his ability to summarily block critics, and impermissibly attempts to extend this underlying logic to Twitter. This fails where Twitter is not a state actor, and is not exercising any sovereign state authority

I wonder how Justice Thomas would feel about this decision?

This case provides an eye-opening compare/contrast with the Constituents for Thoughtful Governance v. Twitter case from last summer. The cases are mirror opposites. In the CTG case, plaintiffs unsuccessfully sued Twitter for not removing the @realdonaldtrump account. In the Rutenberg case, the plaintiff unsuccessfully sued Twitter for removing the @realdonaldtrump account. Together, the cases highlight why Twitter and other Internet services feel like content moderation puts them in a no-win position. Twitter will get sued whatever choice it makes. In other words, there are no pareto-optimal outcomes in content moderation. Because of that, any censorial regulatory intervention (mandating that services remove content or must-carry) picks a winner which necessarily imposes a detriment on other constituencies. Fortunately, the First Amendment prevents the government from choosing speech winners and losers.

Case citation: Rutenberg v. Twitter, Inc., 2021 WL 1338958 (N.D. Cal. April 9, 2021). Prior denial of plaintiff’s TRO request. The complaint.

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