Section 230 Preempts Unfair Competition Law Claim–Taylor v. Twitter
This is an extraordinary opinion. I can’t recall another opinion where the judge so candidly admits that he made both procedural and substantive mistakes. As troubling as those mistakes were, it actually gives me great confidence to see a judge correct his mistakes so forthrightly!
Taylor, a suspended Twitter user, sued Twitter for blocking his white supremacist content. To me, these cases are easy defense wins. The First Amendment generally protects white supremacist content, but it equally protects a publisher’s decision not to publish it. So if Twitter wants to ditch the white supremacists, great. Those folks can go use Gab.
Section 230 also dictates Twitter’s freedom to decide. Last year, the superior court judge, Judge Kahn, dismissed much of this case on Section 230 grounds, but held that Section 230 did not preempt the unfair competition (UCL) claim. In an unusual twist, Twitter sought an “alternative writ of mandate” from the appeals court on this point, and the appeals court instructed the superior court judge to justify the ruling better or dismiss the case. On remand, Judge Kahn initially assumed that he had to dismiss the case without a hearing, which he did in September 2018. He then realized he should have held a hearing and allowed the plaintiffs to seek a reconsideration motion.
In his opinion rejecting the reconsideration request, Judge Kahn expresses a number of doubts about Section 230’s application to UCL claims. Nevertheless, he reaches the same result and explains in some detail why Section 230 preempts the UCL claim. This is a powerful ruling with several potentially important implications.
Judge Kahn starts by canvassing US Supreme Court precedent on Section 230, of which there is none. Next, he canvasses the two California Supreme Court rulings on Section 230, Barrett v. Rosenthal and Hassell v. Bird. Neither addressed UCL claims, but Judge Kahn nevertheless says they show “California courts will give a very ‘broad’ and ‘robust’ construction to section 230.” He adds that Barrett “unmistakably places California as a jurisdiction favoring wide application of section 230” and Hassell “reaffirmed the broad scope of section 230 and arguably enlarged that scope.” He also notes that Hassell rejected creative pleading around Section 230 and instead focused on the practical realities of the plaintiff’s arguments. [Note: he focuses on the plurality opinion, which was strongly pro-230. Justice Krueger’s swing concurrence was less clear.]
The plaintiffs relied heavily on Demetriades v. Yelp, a 2014 California appellate court ruling that rejected Yelp’s Section 230 defense. The Demetriades court explained: “Nowhere does plaintiff seek to enjoin or hold Yelp liable for the statements of third parties (i.e., reviewers) on its website. Rather, plaintiff seeks to hold Yelp liable for its own statements regarding the accuracy of its filter.”
Judge Kahn destroys the Demetriades ruling. He says “the section 230 discussion in Demetriades is out of step with the California courts’ robust interpretation of section 230.” He thinks the Hassell “impliedly overruled” the Demetriades decision because of the “practical realities” that Demetriades was targeting Yelp’s refusal to remove negative reviews. If it wasn’t overruled by Hassell, Judge Kahn says Demetriades‘ discussion about Section 230 was dicta; and if it wasn’t dicta, it conflicts with two better-reasoned California appellate court rulings, Doe II v. MySpace and Cross v. Facebook, both of which rejected workarounds to Section 230. Doe II “applied the same practical reality approach” as Hassell, and Cross applied Section 230 even though the plaintiff claimed to sue over Facebook’s own marketing words.
Having navigated this precedent, Judge Kahn concludes:
A fair and practical reading of the FAC makes clear that plaintiffs’ core beef with Twitter is that their accounts were permanently suspended based on Twitter’s evaluation of the content of those accounts and plaintiffs’ perceived political affiliations, not that Twitter made false and misleading statements about what it would allow on its platform or that its TOS is unconscionable. Indeed, the primary form of relief sought in the FAC is an injunction barring Twitter from an [sic] enforcing a content-based policy and requiring it to restore plaintiffs’ and others’ accounts that were suspended based on that policy. As interpreted by California’s courts, section 230 precludes this relief, regardless of whether the plaintiffs (as they did in their first and second causes of action) based their claims directly on Twitter’s conduct removing plaintiffs’ own speech or (as they “creatively” did in their third cause of action for violation of the UCL) based their claim on Twitter’s own speech regarding its regulation of plaintiffs’ speech.
Accordingly, Judge Kahn admits his prior ruling (that Section 230 didn’t apply to the UCL claim) “went astray” because he thought “the determinations of whether plaintiffs seek to hold Twitter liable as a publisher and whether plaintiffs’ UCL claim is based on Twitter’s speech or plaintiffs’ own speech are distinct inquiries. As to plaintiffs’ UCL claim, I now realize that these seemingly different issues are actually the same issue, merely expressed in different language.” This is an insightful admission, one that many judges might resist even after getting reversed on appeal. If other courts embrace this approach, it will give defendants even greater protection against attempts to plead around Section 230.
Thus, Judge Kahn concludes: “Based on the binding decisions of Barrett, Hassell, Doe II, and Cross, and my rejection of Demetriades, in the exercise of my independent judgment, I conclude that the reasoning in the Alternative Writ Order accurately reflects California courts’ interpretation of section 230.”
That doesn’t mean Judge Kahn is happy about all of this. He says that “Barnes, Internet Brands and the other federal cases (as well as Demetriades) relied on by plaintiffs show that plaintiffs’ argument that their UCL claim survives the defense of section 230 finds support in the text of that section, is far from frivolous, and might some day even be adopted by the United States Supreme Court.” Let’s hope not! Then again, as express dicta, Judge Kahn notes countervailing federal rulings that mean “the California courts’ interpretation of section 230, as discussed in this order, is by no means an outlier and finds ample support in other federal decisions” (cites to Doe v. Backpage, Roommates.com, Igbonwa v. Facebook, and Cohen v. Facebook).
It’s inevitable this case will be appealed, and as indicated in my prior paragraph, the opinion contains some breadcrumbs for the appeals court to consider a reversal. However, Judge Kahn’s opinion is thoughtfully and sturdily constructed. He candidly and honestly explains in detail his struggles with the law and the precedent and how he navigated through them. It’s a really masterful opinion that reaches the right result, and I expect it will help the appeals court do the same.
More generally, this is one of several opinions that expressly shuts down “creative” plaintiff attempts to plead around Section 230. It reminded me of the Ninth Circuit’s Kimzey v. Yelp ruling, which said “Kimzey apparently hoped to plead around the CDA to advance the same basic argument that the statute plainly bars: that Yelp published user-generated speech that was harmful to Kimzey. We decline to open the door to such artful skirting of the CDA’s safe harbor provision.” I love this opinion’s candid standard of looking at the “practical realities” of the plaintiffs’ assertions, a standard that should prove useful for other cases.
Just a reminder of the stakes at issue in this case. As I wrote in my last blog post on the case: “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.” This opinion gives social media a reprieve…for today…
For recognizing, and then forthrightly and cool-headedly correcting, his errors, I’m awarding the Technology & Marketing Law Blog “Judge of the Day” award to Judge Harold Kahn.
Case citation: Taylor v. Twitter, Inc., CGC 18-564460 (Cal. Superior Ct. March 8, 2019)