Planning to Sue Twitter Over an Account Suspension? YOU WILL LOSE–Murphy v. Twitter

Murphy engaged in deadnaming and misgendering in her tweets. Twitter repeatedly disciplined Murphy’s account until it finally permanently suspended the account. Murphy sued Twitter. The lower court ruled for Twitter on Section 230 grounds. The appeals court affirmed.

This court opinion says that Twitter’s TOS enforcement, including account suspensions, is fully protected by Section 230(c)(1). While this isn’t the first time a court has said that (over a dozen cases have), this opinion sets a major precedent for several reasons:

• it’s a California appellate court opinion interpreting California law. Thus, it sets the precedent for both California state courts and federal courts ruling on California law
• the opinion is published (except for the last two sections, which are inconsequential). This opinion will garner many citations.
• the opinion addresses most of the arguments plaintiffs assert to get around Section 230, and the court rejects those arguments in clear, decisive, and persuasive ways.

Any plaintiff thinking about suing an Internet service over account suspension or termination needs to carefully review this opinion first.

Section 230(c)(1)

The court starts by acknowledging that Section 230 should be construed broadly in favor of immunity. The court applies the standard 3-part test to conclude that Twitter qualifies for Section 230(c)(1) immunity:

• ICS Provider. Murphy conceded. Cites to AFDI v. Lynch, Fields v. Twitter, Brittain v. Twitter.
• Publisher/Speaker. “Twitter’s refusal to allow certain content on its platform, however, is typical publisher conduct protected by section 230.”
• Third-Party Content. “All of the content that Murphy claims Twitter required her or others to remove and is wrongfully censoring was created and posted by Murphy and others, not Twitter.” Cites to Cross v. Facebook and FAN v. Facebook.

To get around this obvious Section 230 conclusion, Murphy said she was suing based on Twitter’s promises, not Twitter’s content decisions. The court says it doesn’t matter. Citing Barnes, the court responds that “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;” and, citing Hassell, courts shouldn’t let plaintiffs “creatively” plead around Section 230. Thus:

Courts have routinely rejected a wide variety of civil claims like Murphy’s that seek to hold interactive computer services liable for removing or blocking content or suspending or deleting accounts (or failing to do so) on the grounds they are barred by the CDA

Cites to Doe II v. MySpace, Gentry v. eBay, Wilson v. Twitter, Domen v. Vimeo, Ebeid v. Facebook, Mezey v. Twitter, Fields v. Twitter, Sikhs for Justice v. Facebook, Riggs v. MySpace.

Thus, Section 230 still applies to Murphy’s claims over Twitter’s promises:

While Murphy is correct that some courts have rejected the application of section 230 immunity to certain breach of contract and promissory estoppel claims, many others have concluded such claims were barred because the plaintiff’s cause of action sought to treat the defendant as a publisher or speaker of user generated content.

Cites to Cross v. Facebook, FAN v. Facebook, Brittain v. Twitter, King v. Facebook, Caraccioli v. Facebook, Goddard v. Google.

I don’t know if this opinion definitively establishes that Section 230 can preempt TOS breach claims when they are being used to get around Section 230, but it sure looks that way. To emphasize that conclusion, the court says “Barnes never suggested, however, that all contract or promissory estoppel claims survive CDA immunity.” The court explains:

Unlike in Barnes, where the plaintiff sought damages for breach of a specific personal promise made by an employee to ensure specific content was removed from Yahoo’s website, the substance of Murphy’s complaint accuses Twitter of unfairly applying its general rules regarding what content it will publish and seeks injunctive relief to demand that Twitter restore her account and refrain from enforcing its Hateful Conduct Policy. Murphy does not allege someone at Twitter specifically promised her they would not remove her tweets or would not suspend her account. Rather, Twitter’s alleged actions in refusing to publish and banning Murphy’s tweets, as the trial court in this case observed, “reflect paradigmatic editorial decisions not to publish particular content” that are protected by section 230…

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.

It doesn’t matter that Twitter may have amended its content standards midstream:

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.

Also, the court says identifying misgendering and deadnaming in Twitter’s content standards clarify, instead of change, its prior Hateful Conduct policy.

Section 230(c)(2)

Twitter explicitly didn’t rely on Section 230(c)(2)(A)–a bold concession that paid off. The court says that Section 230(c)(1) is all that Twitter needs. Echoing Barnes and citing Fyk v. Facebook as well, the court says “section 230(c)(2) ‘provides an additional shield from liability,’ encompassing, for example, those interactive computer service providers ‘who cannot take advantage of subsection (c)(1) . . . .because they developed, even in part, the content at issue.’”

The court says a Section 230(c)(2)(A) outlier case in federal district court, e-ventures v. Google, is “unpersuasive because the court did not consider the distinction recognized by courts in the Ninth Circuit between a publisher that is involved in the creation of content and one who only makes publication decisions regarding content created by others.” There’s a good chance this opinion functionally overturns the e-ventures precedent because federal courts defer to the California Appeals Court to interpret California law.

Prima Facie Elements

Twitter wins on Section 230(c)(1) grounds. Nevertheless, the court also independently concludes that the individual claims fail for lack of merit.

Breach of Contract. There’s no breach of contract when “Twitter’s terms of service expressly state that they reserve the right to ‘suspend or terminate [users’] accounts . . . for any or no reason’ without liability.” 💥💥💥 Cites to Cox v. Twitter and Ebeid v. Facebook.

The unconscionability doctrine didn’t help Murphy. She alleged minimal procedural unconscionability (despite Twitter’s TOS being a contract of adhesion), and Twitter’s unilateral termination/suspension provision isn’t substantively unconscionable: “Terms allowing service providers to ‘discontinue service, or remove content unilaterally,’ however, are routinely found in standardized agreements and enforced by courts.” Cite to Song Fi v. Google (DDC 2014). Also, “Courts have also recognized service providers that offer free services to Internet users may have a legitimate commercial need to limit their liability and have rejected claims that such limitations are so one-sided as to be substantively unconscionable.” Cite to Lewis v. Google, Darnaa v. Google, Song Fi v. Google. Thus:

In light of Murphy’s allegations that Twitter provides its services to millions of users around the world for free, the contract term allowing it to suspend or terminate users’ accounts for any or no reason, absent other factual allegations of unfairness, does not shock the conscience or appear unfairly one-sided.

I expect this ruling will limit future unconscionability challenges against TOSes for free-to-use Internet services.

Promissory Estoppel. Promissory estoppel claims almost never win, and that’s true here:

Murphy could not reasonably rely on promises that Twitter would not restrict access to her account, “ ‘censor’ ” her content, or take “account-level” action when the terms of service stated at all relevant times that Twitter could “ ‘remove or refuse to distribute any Content’ ” and could suspend or terminate an account “ ‘for any or no reason.’ ”…the very terms of service that Murphy relies on in asserting her claims make clear that Twitter may suspend or terminate an account for any or no reason.

Also, because Twitter worded its content restrictions so broadly, the “breadth and ambiguity of [its] prohibition makes any reliance on vague statements that Twitter will not “censor” content unreasonable.”

UCL. The court questions Murphy’s standing because she “does not have a property interest in her account or her followers, but only the content she creates.”

As for Twitter’s public statements about its love for free speech:

No reasonable person could rely on proclamations that “[w]e believe in free expression and think every voice has the power to impact the world,” that Twitter was the “free speech wing of the free speech party,” or that Twitter’s mission “ ‘is to give everyone the power to create and share ideas and information instantly without barriers,’ ” as a promise that Twitter would not take any action to self-regulate content on its platform. [cite to PragerU]…No reasonable person would rely on a general statement that Twitter would not “actively monitor user’s content and will not censor user content, except in limited circumstances” to mean it would never restrict content, particularly when the same rules offered examples of impermissible conduct, reserved the right to change the rules, and gave Twitter “the right to immediately terminate [an] account without further notice in the event that, in its judgment, [a user] violate[s] [the Twitter Rules] or the Terms of Service.”

A thorough, decisive win for Twitter. A+ job by Twitter’s lawyers, Patrick J. Carome, Ari Holtzblatt and Thomas G. Sprankling. Also, if you didn’t see it, this amicus brief (which my former student Zeb Zankel helped write) is one of the best explanations of how Section 230 benefits marginalized communities that I have seen. Recommended.

Case citation: Murphy v. Twitter, Inc., 2021 WL 221489 (Cal. App. Ct. Jan. 22, 2021)