Court Can’t Compel Twitter to Shut Down Trump’s Account
This lawsuit involves the @realdonaldtrump Twitter account. Has any Twitter account ever generated more litigation? The plaintiffs allege that Twitter did not properly enforce its TOS against the account. The plaintiff sought two types of relief: (1) a declaration that Trump’s account violates Twitter’s TOS and that Twitter acted arbitrarily and capriciously in handling the violations, and (2) an injunction compelling Twitter to suspend Trump’s account for TOS violations. In what the court calls “not a close case,” the court easily dismisses the case on Section 230(c)(1) grounds. In a footnote, the court adds that other grounds, including the First Amendment, appeared “well-founded.”
The court applies the standard three-part test for Section 230(c)(1):
Third Party Content. There is no dispute that Trump’s content is third-party content to Twitter.
Publisher/Speaker Claim. “California and federal courts agree that actions that, like the instant case, seek relief based on an internet service provider’s decisions whether to publish, edit, or withdraw particular postings are barred by Section 230.” Cites include Cross v. Facebook, Doe II v. MySpace, Sikhs for Justice v. Facebook. The court adds: “federal courts have squarely held that a service provider’s decisions to provide, deny, suspend or delete user accounts are immunized by Section 230.” Cites to Fields v. Twitter, Riggs v. MySpace, Cohen v. Facebook, Mezey v. Twitter. “Conversely, as Petitioner’s counsel conceded at the hearing, there is no reported decision in which a court ordered an internet service provider to enforce its rules against a third-party user or to remove that user’s account.”
To get around this, the plaintiff argued that Section 230 doesn’t apply to Twitter’s own content. The court says ¯\_(ツ)_/¯ because Twitter “published [Trump’s tweets] unaltered.” The plaintiff also argued that Twitter encouraged Trump’s continued bad behavior by letting him get away with past bad behavior. The court responds: “merely passively publishing content provided by a third party, even if that content arguably is unlawful or violates the service provider’s stated policies or guidelines, cannot meaningfully be said to constitute such a ‘material contribution.'”
The court concludes:
Petitioner’s claim, which is based on Twitter’s editorial judgments regarding enforcement and application of its rules to one user’s account and seeks to compel Twitter to suspend that account, is barred by the CDA….In the court’s view, this is not a close case: Twitter did not author the statements at issue; it did not edit them or otherwise materially contribute to their content; nor did it select them for publication. Even if Twitter adopted an unwritten “policy of non-enforcement” of its rules against the Account, as Petitioner alleges, that cannot render Twitter responsible for its content. Twitter is immune under section 230 for its exercise of a publisher’s traditional editorial functions, including deciding whether to publish, withdraw, postpone or alter content supplied by a third party.
Just to be clear, selecting tweets for publication would not change the outcome. The court used that example only to reinforce how clearly this case was within the scope of Section 230’s immunity.
The court easily concludes this case is a SLAPP. The plaintiff met some of the requirements for the public interest exception to CA’s anti-SLAPP law, but “it is difficult to see how an order directing a social media platform to restrict an individual’s speech, much less to entirely suspend or ban that person’s account, could be said to confer any “significant benefit” on the general public consistent with the First Amendment.” In other words, this lawsuit sought to advance censorship, while anti-SLAPP laws are designed to curb censorship. The court says pointedly: “Petitioner’s lawsuit, if successful, would result in less speech rather than more.” The court adds that CA’s anti-SLAPP law always applies to “political works,” which the court construes to include Trump’s tweets.
Because the court granted Twitter’s anti-SLAPP motion, the plaintiff will be paying Twitter’s defense costs. In California, censorial lawsuits don’t come for free.
Case citation: Constituents for Thoughtful Governance v. Twitter, Inc., Case No. CGC-20-583244 (Cal. Superior Ct. July 13, 2020)
Selected Prior Posts on @RealDonaldTrump Account