Twitter’s TOS Upheld Despite Unilateral Amendment Clause—Brittain v. Twitter

This is one of the many Trump-associated lawsuits (#MALGA) by so-called conservatives against Internet companies for allegedly squelching their voices. In this case, Craig Brittain, an erstwhile political candidate, had several campaign-related Twitter accounts suspended (including @CraigRBrittain, @AuditTheMedia, @SenatorBrittain, and @Brittain4Senate), allegedly costing him 500,000 followers. He sued for “$1 billion in damages, a declaration that Twitter interfered in the 2018 federal election, and an injunction preventing Twitter from suspending or otherwise limiting access to accounts.” Twitter invoked the forum selection clause in its TOS and sought to relocate the case from Arizona to its home court in San Francisco.

The court doesn’t discuss TOS formation, saying Brittain “affirmatively assenting to the ‘clickwrap’ agreement” (ugh) and adding: “Brittain does not dispute that he voluntarily agreed to the Terms when he created each Twitter account, that the forum selection clauses are mandatory rather than permissive, and that his claims fall within the scope of the clauses.”

Brittain tried to invalidate the clause because Twitter’s TOS contains a unilateral amendment clause. As I’ve repeatedly indicated, those clauses are dangerous. This time, the court says it’s OK because the clause doesn’t allow retroactive modification (thus distinguishing it from Zappos).

Brittain tried a bizarre argument that the TOS was unconscionable because it didn’t contain an arbitration clause. The court says “Brittain cites no legal authority suggesting that Twitter is required to include an arbitration clause in its Terms.”

Finally, Brittain argued that he is limited to bicycle or public transportation, making it hard for him to file court documents. The court cheerfully notes that “the Northern District of California permits filing by mail, eliminating the need for Brittain to bicycle or use public transportation to file court documents.”

Case citation: Brittain v. Twitter, Inc., 3:19-cv-00114-SK (D. Ariz. Jan 4, 2019). The complaint.