from the everyone move along now dept
Phew. After a surprising (and very, very weird) ruling in a California state court earlier this summer, that suggested that a well known racist might have a legitimate legal case against Twitter for kicking him off their platform, an appeals court has quickly and thoroughly corrected that error. To understand what happened here requires a little bit of background, so let’s dig in.
Back in March, we wrote about a silly case filed by noted racist (he prefers “race realist” or “white advocate” but come on), Jared Taylor, who had been kicked off Twitter. Taylor sued, claiming that Twitter kicking him off the platform violated various rights. As we noted at the time, the case had no chance, and would be tossed out on CDA 230 grounds, as the law makes it clear that platforms cannot be liable for their moderation choices. Indeed, the whole reason CDA 230 was first created was in response to a horrible court ruling that said moderation choices could make you liable. CDA 230 was a correction to that mistaken court. And in the two decades since then we’ve seen all sorts of attempts by people to argue their way around CDA 230 and nearly all of them fail, and thus we expected this one to fail easily. As I noted in that original post, I had spent some time going back and forth with some of Taylor’s lawyers, who seemed surprisingly uninformed about CDA 230.
So, I will admit that I was a bit surprised back in July when the court refused to dump the case. While the official ruling came in July, the Judge’s rational was laid out at a hearing in June, in which he did agree to dump some of the claims, but kept one claim: an “unfair competition” claim. The reasoning was… very, very strange. Basically, the court claimed that under California law, Taylor could claim that Twitter’s terms of service were “unconscionable” because they said the site could kick you off for any reason. It is true that California code 1670.5 says that “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract.” But how is Twitter’s terms of service unconscionable?
During the hearing, Twitter’s lawyers seemed reasonably flummoxed that this was even being brought up and asked for more time to go back and research and brief the issue. And they were right to be confused. Because there’s never been any other court finding that a basic online terms of service that says the site has the final word in deciding who can use the platform is “unconscionable” — and that’s partly because of CDA 230, that makes it clear the platform has the final say, and state law can’t interfere with that. But here, the judge ignored all of that and suddenly decided that the “we can kick you off for any reason at all” clause must be both outside the purview of CDA 230 and possibly unconscionable. From the hearing (Carome is Twitter’s lawyer, Patrick Carome, Peters is one of Taylor’s lawyers, Noah Peters:):
MR. CAROME: What are the unconscionable provisions that Your Honor possibly sees here? I —
THE COURT: I can tell you what’s alleged, and I believe
adequately so, something to the — I could get the first amended complaint to quote it exactly, but something to the effect that Twitter can, at any time, for any reason, or no reason, pull any account. Have I stated that correctly?
MR. PETERS: Yeah; that’s right.
MR. CAROME: There is language to that effect, Your Honor; I would submit that that’s not… remotely unconscionable for a on-line platform, such as Twitter, which is completely free, given to the world for free, that requires users — it has a gating —
THE COURT: And —
MR. CAROME: — requirement, and let’s users in under certain conditions, it is absolutely permissible and, indeed, subject to First Amendment rights and editorial decision that a platform that is engaged in the distribution of speech may, for any reason, just like a newspaper editor could, for any reason, choose not to run a letter to the editor that it receives. That’s not unconscionable; that’s not remotely unconscionable; that’s the way systems work. That’s the way — and so I would certainly —
THE COURT: So let me explain to you why I see differently and the rules that I believe I am bound by in making my determination:
First, I am required to liberally construe the complaint. It’s right there in the California Code of Civil Procedure. And, if you want, I can cite that for you, as well; Second, I need to draw whatever reasonable inferences I can draw in favor of the pleading that is being challenged. And in doing both of those things, and liberally construing the complaint, and in drawing reasonable inferences in its favor, I envision or I believe that the complaint alleges something along the lines of: Twitter is the largest communication source in the world. And the way to get your word out and the way to be heard in the modern era, particularly with regard to such important matters as being able to petition the elected leaders and others who are involved in government, for redress, is to be able to be on the Twitter platform.
And for Twitter to know that and nonetheless impose language, as it did here, an otherwise prolix document that’s not highlighted, and done on an adhesion contract basis, and on a take it or leave it basis, it is procedurally unconscionable in a large measure.
There’s more, but that was the crux of it. And, I should note that this is crazy. Part of the reason I didn’t even blog about it at the time was that it was such a crazy ruling, completely divorced from basically all precedent on how online platforms manage their services, that it seemed inevitable that it would be overturned.
What’s surprising is just how quickly it was overturned. First noted by Eric Goldman in a detailed post over the weekend, the appeals court seemed so perplexed by the judge’s ruling that it smacked it down without even hearing from Taylor’s lawyers, more or less saying that ruling was so egregiously off-base that it wouldn’t matter what Taylor’s lawyers had to say.
Of course, the Appeals Court is a bit nicer in how it put it, and basically tries to suggest that maybe the reason the court got it so wrong was because it had not yet read the important Hassell v. Bird ruling that came out in between the Taylor hearing and the official ruling by the judge. The Hassell ruling reinforced how broad CDA 230 was for internet platforms, and how they are given wide latitude in determining how to manage their own platforms, including editorial choices on what to keep up and what to take down. So, here the appeals court basically says to the lower court “you totally screwed this up, but maybe because you hadn’t yet read this latest ruling” (leaving out that the Hassell ruling more or less reconfirmed what dozens of other courts have said):
It appears respondent superior court erred in issuing its July 10, 2018 order
overruling in part petitioner’s demurrer to the first amended complaint of real parties in
interest. We recognize, however, that when respondent issued its order, it may not have
had the benefit of the analysis of Hassell v. Bird…, which
the California Supreme Court had filed on July 2.
It then goes on and presents a nice thorough analysis of why CDA 230 clearly protects Twitter in this regard and the entire case should be dismissed. It goes through the whole history of the case, along with some history of CDA 230, listing out a bunch of cases that make it clear that internet platforms can kick people off. And then explains why the lower court was simply wrong to think that an unfair competition claim isn’t pre-empted by CDA 230:
That real parties allege a cause of action under the UCL does not place their claim
outside the scope of immunity provided by the CDA. (See Cross, supra, 14 Cal.App.5th
at pp. 196, 208; Caraccioli v. Facebook, Inc. (N.D. Cal. 2016) 167 F.Supp.3d 1056,
1064.) Like the plaintiffs in Cross, real parties claim they are seeking to hold petitioner
liable for statements or promises made in its TOS and Rules. (See Cross, supra, at
pp. 200-201, 206-207.) But evaluating whether a claim treats a provider as a
publisher or speaker of user-generated content, ‘what matters is not the name of the cause
of action’; instead, what matters is whether the cause of action inherently requires the
court to treat the defendant as the “publisher or speaker” of content provided by
another.’ ” (Id. at p. 207, quoting Barnes, supra, 570 F.3d at pp. 1101–1102.) 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. (Cohen v. Facebook, Inc., supra, 252 F.Supp.3d at p. 157; Fields v. Twitter,
Ina, supra, 217 F.Supp.3d at pp. 1123-1124.) As Hassell reiterated, “lawsuits seeking to
hold a service provider liable for its exercise of a publisher’s traditional editorial
functions–such as deciding whether to publish, withdraw, postpone or alter content–are
barred.'” (Hassell, supra, 5 Cal.5th at p. 536.)
Therefore, let an alternative writ of mandate issue commanding respondent San
Francisco County Superior Court, in Jared Taylor, et v. Twitter, Inc., San Francisco
County Superior Court case No. CGC18564460, to set aside and vacate its order of
July 10, 2018 order overruling part in part petitioner’s demurrer to the first amended
complaint of real parties in interest, and to enter a new and different order sustaining
petitioner’s demurrer in its entirety; or, in the alternative, to appear and show cause
before Division One of this court why a peremptory writ of mandate should not be
Basically, toss this case, or come back to the appeals court and explain in great detail how this case somehow goes against the rulings in every other case. Taylor’s lawyers indicate that they’ll continue fighting back, but I stand by my original prediction in this case that it’s a lost cause.
Separately, I will note that the weird ruling back in June/July in this case, set off a bunch of people online who believed it showed — as some have been ridiculously claiming — that moderating platforms somehow makes you lose CDA 230 protections. I do wonder how they’ll all react to this quick action on appeal… If what’s happening on Twitter is anything to go on, they’re going to ignore it. After all, over the weekend I saw at least one tweeter still pointing to the June decision to “prove” that kicking people off of Twitter might violate the law.