Twitter Gets Powerful Win in “Must-Carry” Lawsuit–Taylor v. Twitter

This is one of several lawsuits brought by disseminators of anti-social content (in this case, white supremacist content) seeking to prevent social media providers from cutting them off. In June, the lower court surprisingly rejected Twitter’s dismissal motion for the unfair competition claim. I didn’t blog that ruling because it clearly wasn’t the final word (plus, it was just a hearing transcript). Twitter sought a writ of mandate from the appeals court–an extraordinary request which courts are reluctant to grant. In another surprise twist, yesterday the appeals court granted Twitter’s request (without even inviting the plaintiff’s response) and told the lower court to dismiss the case unless it can better justify its ruling. I doubt the lower court can convince the appellate court to reverse this opinion, so this appellate ruling almost likely will force a plaintiff appeal.

The court correctly treats this as an easy Section 230 case. Consistent with the modern trend post-Sikhs for Justice v. Facebook, the court treats users’ posts as third party content to Twitter, so 230(c)(1) applies instead of 230(c)(2).

The only 230(c)(1) element at issue is whether the claim treats Twitter as a publisher. The court says “California courts have held that a service provider’s decision ‘to restrict or make available certain material–is expressly covered by Section 230′” (citing Doe II v. MySpace, with additional cites to Fields v. Twitter, Riggs v. MySpace, Cohen v. Facebook, and Sikhs for Justice). The court also cites language from the en banc ruling that “any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under Section 230.”

The plaintiffs argued that the unfair competition claim is based on Twitter’s marketing collateral. The court responds that Section 230 protects publishing third party content regardless of how plaintiffs plead the claim. “Here, the duties real parties allege Twitter violated derive from its status or conduct as publisher because petitioner’s decision to suspend real parties’ accounts constitutes publishing activity” (cite to Cohen v. Facebook and Fields v. Twitter, with a backup cite to Hassell v. Bird).

This ruling has several powerful implications. First, it is a reminder that Section 230 sometimes applies to an Internet service’s marketing claims that relate to their publication of third party content–even where the defendant allegedly violated its own promises. This is not an unprecedented outcome (see, e.g., Milo v. Martin), but it may be counter-intuitive. Second, it highlights how Section 230 cuts across all claims, so the plaintiff’s pleading decisions shouldn’t matter. Third, this is the first opinion I’ve seen citing the California Supreme Court’s Hassell v. Bird ruling, and the court treated it as a strong endorsement of Section 230 despite the murkiness of the four opinions.

I’ll remind you of the high stakes of this and similar lawsuits: the plaintiffs seek to eliminate Twitter’s discretion to shut down purveyors of anti-social content, and other trolls, on its site. If Twitter and other social media providers are defenseless against the trolls, their services will become unusable overnight. So this lawsuit and related suits are existential battles for the social media defendants and all of us who currently enjoy those services. And please please please don’t buy into the trope that these suits seek to vindicate users’ “free speech” rights. Instead, these lawsuits seek to negate the social media providers’ First Amendment-protected Freedom of the Press, so they actually reflect deeply censorious agendas. For more, see my essay, Of Course the First Amendment Protects Google and Facebook (and It’s Not a Close Question).

I got the following statement from Prof. Adam Candeub, one of Taylor’s lawyers:

We certainly regret that the Court of Appeals did not give us the opportunity to respond to Twitter’s petition—and the amicus brief from Google, Snap, Yelp et al. Certainly, given the forces arrayed against our client, that would seem a reasonable approach.

The Court of Appeals action stands in direct contradiction to established precedent as found in cases such as Demetriades v. Yelp, Inc., 228 Cal.App.4th 294 (2014). And, we are confident that once we are given the chance for a full and fair hearing, the opinion of the Superior Court will be upheld.

Case citation: Twitter v. Superior Court ex rel Taylor, A154973 (Cal. App. Ct. Aug. 17, 2018)

Selected Prior  Posts:

Twitter Isn’t a Shopping Mall for First Amendment Purposes (Duh)–Johnson v. Twitter
YouTube Isn’t a Company Town (Duh)–Prager University v. Google
Yelp, Twitter and Facebook Aren’t State Actors–Quigley v. Yelp
What Would a Government-Operated Search Engine Look Like in the US?
Facebook Not Liable for Account Termination–Young v. Facebook
Search Engines Defeat Must-Carry” Lawsuit–Langdon v. Google
Online User Account Termination and 47 U.S.C. §230(c)(2)
* Of Course the First Amendment Protects Google and Facebook (and It’s Not a Close Question)