Account Suspension Lawsuit Against Twitter Survives Motion to Dismiss–Berenson v. Twitter

April 30, 2022 · by · in Content Regulation, Derivative Liability, Licensing/Contracts

This case involves Alex Berenson, a one-time NY Times reporter who drifted into #MAGAland. On Twitter and elsewhere, Berenson downplayed the risks of COVID and questioned the safety of the COVID vaccines. Unlike most Twitter users, Berenson was high-profile enough that Twitter’s executives had one-on-one conversations with Berenson about his posts. Nevertheless, Twitter eventually suspended his account in August 2021 for violating its five-strike COVID misinformation policy. Berenson sued Twitter. Judge Alsup dismisses most of Berenson’s claims, but the contract breach and promissory estoppel claims survive Twitter’s motion to dismiss.

Section 230. The judge relies on Section 230(c)(2)(A) rather than Section 230(c)(1) to wipe away the preempted claims:

Section 230 precludes liability for removing content and preventing content from being posted that the platform finds would cause its users harm, such as misinformation regarding COVID-19. Plaintiff’s allegations regarding the leadup to his account suspension do not provide a sufficient factual underpinning for his conclusion Twitter lacked good faith. Twitter constructed a robust five-strike COVID-19 misinformation policy and, even if it applied those strikes in error, that alone would not show bad faith. Rather, the allegations are consistent with Twitter’s good faith effort to respond to clearly objectionable content posted by users on its platform.

It’s nice to see the judge distinguish erroneous and bad-faith applications of content moderation policies, especially on a motion to dismiss. Still, I prefer it when judges rely on Section 230(c)(1) to take the “good faith” topic off the table entirely.

The court adds: “In light of Section 230’s immunity, it is unnecessary to delve into the specifics of the common carrier law and the California free speech clause.”

Contract Breach/Promissory Estoppel. The judge says that Section 230 doesn’t apply to breach of contract or promissory estoppel claims (at least in this case) per Barnes v. Yahoo.

The contract breach claim is properly pled: “Plaintiff plausibly avers that Twitter’s conduct here modified its contract with plaintiff and then breached that contract by failing to abide by its own five-strike policy and its specific commitments set forth through its vice president.”

The promissory estoppel claim is properly pled too: “Twitter established a policy that set out standards for account suspension for posting COVID-19 misinformation. Twitter, through its vice president, also gave specific assurances to plaintiff that, among other things, it ‘would try to ensure you’re given a heads up before any [enforcement] action is taken.’ Collectively, these actions plausibly qualify as a clear and unambiguous promise that Twitter would correctly apply its COVID-19 misinformation policy and try to give advance notice if it suspended plaintiff’s account.”

The court distinguishes the very-relevant Murphy v. Twitter ruling because, in that case, Twitter did not made specific representations to the plaintiff.

First Amendment. “plaintiff concedes Twitter is a private company.” There’s no joint action with the government “because the combination of (1) the shift in Twitter’s enforcement position, and (2) general cajoling from various federal officials regarding misinformation on social media platforms do not plausibly assert Twitter conspired or was otherwise a willful participant in government action.”

Lanham Act. “Neither Twitter’s labelling of plaintiff’s tweets, nor its statement regarding the suspension of his account plausibly propose a commercial transaction.”

This is an unusual ruling because, as Jess Miers and I documented, most account termination cases lose on the motion to dismiss. Two factors help explain this aberration. First, the backchannel communications between Berenson and Twitter execs are rare. (Compare King v. Facebook, where a rank-and-file employee’s sympathetic message didn’t help the plaintiff). And if those conversations occur, most trust & safety professionals never imply any promise in any conversation with any user. Second, Judge Alsup often gives plaintiffs chances on the motion to dismiss, only to drop the hammer on them later in the case when he feels like they overpromised and underdelivered. So it wouldn’t surprise me if Berenson loses this case on summary judgment with a derisive Judge Alsup opinion if Berenson can’t prove up Twitter’s promises or the reasonableness of his purported reliance on them.

Case citation: Berenson v. Twitter, Inc., 2022 U.S. Dist. LEXIS 78255 (N.D. Cal. April 29, 2022). The complaint. The CourtListener page.

BONUS: Blesdoe v. Zuckerberg, 2022 WL 1271379 (E.D. Cal. April 28, 2022): “Plaintiff’s allegations against Zuckerberg, a private (if well known) citizen, and Facebook, a for-profit corporation, do not in any way suggest that these actors’ alleged deletion of plaintiffs’ posts on their platform was conduct by or for a state government.”

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