Another Suspended Twitter User Loses in Court–Wilson v. Twitter

May 4, 2020 · by · in Content Regulation, Derivative Liability

Wilson says he used his Twitter account to express his heterosexuality and Christianity. Twitter suspended the account, allegedly for hateful conduct. Wilson tried creating new accounts but was blocked. Wilson sued Twitter pro se for hundreds of millions of dollars. The magistrate judge recommends dismissing the complaint.

First Amendment. As we all know, Twitter isn’t a state actor:

While Twitter no doubt provides a valuable public forum, one in which millions of users, including the President of the United States, participate in wide-ranging public discourse, this alone is insufficient to establish that Twitter is a state actor. Although the ubiquity of the internet, and the unprecedented scale at which social media companies such as Twitter operate, has resulted in a significant portion of public debate taking place on forums controlled by private actors, the nature of the state-action doctrine remains the same….

That private social media companies now host platforms which imitate the functions of public forums—in many respects more effectively than the traditional public forums of government-owned sidewalks, streets, and public parks—does not mean that the entities are state-actors for the purposes of the First Amendment [cite to Prager U.]….

notwithstanding that it has created a forum for hosting speech, Twitter is a private entity and is not subject to the state-action doctrine.

Section 1981. Wilson never alleged discrimination based on race.

Civil Rights Act of 1964. The magistrate treats this as a Title II claim, similar to the Noah case from 2003 (a case I still teach in my Internet Law course). In that ruling, the court said AOL’s chat rooms were not a place of public accommodation for purposes of Title II.

In this case, the magistrate can’t decide if Twitter is a place of public accommodation because of the case law split that has developed over the years. In leaning against the Noah precedent, the magistrate cites the Supreme Court’s Wayfair ruling–a tax case–as the “Supreme Court’s clear directive that artificial distinctions between ‘virtual’ and ‘physical’ commerce erected during the early years of the internet should not be maintained after modern developments render their justification untenable is instructive on this issue.” The analogy to Wayfair is stretched. Wayfair case dealt with the dormant Commerce Clause, while the Title II issue is purely statutory. Plus, I’m not sure the discussion about “commerce” applies to Twitter, at least in this case.

The magistrate signals that she would rule against Twitter on this issue if she had to choose:

Given the massive restructuring of both the economy and public association effectuated by the rise of online platforms and business since the Noah decision was issued, drawing an inflexible distinction between physical facilities which can appropriately be considered places of public accommodation, and virtual services and platforms which cannot, appears increasingly tenuous. Online websites and services such as Twitter are, like their physical counterparts, “ostensibly open to the general public,” and it increasingly appears that cordoning off virtual services from the protection of Title II would undermine the broad protections provided by the CRA as more and more services and economic opportunities migrate to virtual spaces.

This is the central Internet Law exceptionalism question. In my class, I spend some time talking about ways in which virtual spaces do indeed differ from physical spaces. It would be a fun discussion if it mattered.

It doesn’t, however, because the magistrate officially punts on the issue, saying the Title II claim fails for other reasons. I’m baffled why the magistrate took such an extended look at the Title II question given that the entire discussion was dicta. Maybe the magistrate found the issue intellectually interesting? An attempt at judicial activism?

The next several points are all reasons why the Title II claim fails even though the magistrate would have considered Twitter a place of public accommodation:

Remedies. Wilson asked for cash damages, but Title II would only support injunctive relief.

Section 230. Twitter qualifies for Section 230 immunity against the Title II claim:

  • ICS Provider: “Twitter provides the ‘prototypical service’ entitling it to the protections of this statute, as it provides a forum for individuals to post comments, (or “tweets,” to give them their nom de guerre), to which others may then respond.” Cites to Mezey, AFDI, Brittain. (I’m not sure about that nom de guerre characterization).
  • Information from Another Information Content Provider: The content at issue came from Wilson, not Twitter, so it qualifies. Cite to Sikhs for Justice.
  • Publisher/Speaker Claim. “Twitter’s decision to suspend Wilson’s accounts, based on tweets that reportedly used derogatory slurs for homosexuality, was reached in the course of a traditional editorial function—namely deciding what type of content to publish.”

Thus, Section 230 applies to the suspension. The magistrate expressly acknowledges the oddity of using Section 230(c)(1) to cover account suspensions:

While this case does not represent the “typical” case envisioned by § 230 immunity, wherein a litigant seeks to hold an interactive computer service provider liable for publishing content from a third-party which the litigant finds objectionable, courts have readily found that the statutory immunity also applies to the factual scenario presented here, where the plaintiff objects to the removal of his or her own content.

Cites to Domen v. Vimeo, Mezey v. Twitter, Riggs v. MySpace, Hare v. Richie, Ebeid v. Facebook, Lancaster v. Alphabet, Bennett v. Google, Roommates.com.

Make sure you didn’t miss the magistrate’s conclusion: Section 230 immunizes Title II discrimination claims even if the prima facie claims would have been tenable against Twitter. Cites to Noah, Sikhs for Justice, National Association for the Deaf v. Harvard, and Chicago Lawyers’ Committee v. Craigslist.

Failure to State a Claim. As yet another reason why the Title II claim fails, the magistrate says Wilson didn’t properly allege the elements. Title II doesn’t apply to discrimination based on sexual orientation, so Twitter’s alleged discrimination against his heterosexuality didn’t meet the claim elements. Title II does apply to religious discrimination, but Wilson didn’t plead facts that Twitter discriminated against him on the basis of his Christianity. Plus, there is some evidence that Twitter legitimately acted because Wilson’s tweets were, in fact, hateful, so its actions were not necessarily the result of discriminatory animus by Twitter. “[E]ven if Wilson was driven by his religious beliefs to create content which Twitter found to be in violation of its policy, his personal motivation does not bar Twitter from enforcing its generally applicable rules regarding user conduct.”

(Yes, Wilson appears to be arguing that Twitter discriminated against him because he’s a Christian heterosexual–a potentially mockable position in light of the many ways online systems implicitly privilege people with such characteristics. This case might be part of a longer-term trend where “conservatives” counter-intuitively attempt to weaponize civil rights laws to perpetuate majority privilege).

This is a detailed, thoughtful, and well-cited opinion that reaches the obvious conclusion that Twitter isn’t liable for suspending user accounts. I expect this opinion will fare well in any further proceedings.

Case citation: Wilson v. Twitter, 3:20-cv-00054 (S.D.W.V. May 1, 2020)

UPDATE: The district court, in a short opinion dated June 16, 2020, approved the magistrate report. The only substantive discussion:

Wilson argues the Court should not dismiss his First Amendment claim because Twitter is a publicly-traded company, not a “private company.” He misunderstands the relevant distinction. The First Amendment’s protection of free speech “is a guarantee only against abridgment by government, federal or state.” A publicly-traded company is “public” only in the sense that anyone who purchases stock may become a shareholder. A publicly-traded company is not an extension of the government, so Twitter’s decision to censor speech does not implicate the First Amendment’s protection against government censorship

Wilson v. Twitter, 2020 WL 3256820 (S.D. W.V. June 16, 2020)

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