Chuck Johnson Sues Twitter, Copying Dennis Prager's Lawsuit Against YouTube
from the public-square dept
Last summer, we wrote about an important Supreme Court case, Packingham v. North Carolinia, which made the fairly important ruling that the internet was so central to everyday life that courts could not ban people from the internet, even if they were convicted of a horrific crime. It was an important ruling — but almost immediately, some people worried that some would interpret the ruling in a way to suggest that online service providers, themselves, could not kick people off of their service. That’s not what the ruling actually says, but it’s possible to quote it out of context to suggest as much.
And, indeed, we’ve started to see such cases brought against internet companies. The case Dennis Prager brought against YouTube, for example, cites Packingham to argue that it’s somehow unconstitutional to filter his videos with warning labels. And now we can add famed internet troll Chuck Johnson to the list, as he’s filed a lawsuit against Twitter, long after the site permanently banned Johnson from using their platform.
As we noted with the Prager/YouTube case, it’s unlikely this case will go anywhere. Courts have held out, repeatedly, that platforms have the right to operate however they want regarding letting people use their services or not (the big distinction with Packingham was that was the government denying individuals access to the internet, not private operators). And there is extensive case law around Section 230 of the CDA as well, which states in fairly plain language that sites not only can filter and moderate however they want without liability, but actually encourages them to do so. There is, of course, at least some amount of irony that it was conservatives who were complaining about “bad stuff” (mainly porn) online who pushed for incentives in the CDA to get internet services to censor via filtering… and now it’s “conservative” commentators like Prager and Johnson, who are suing because those sites are filtering, as is explicitly encouraged by the law.
The arguments in Johnson’s case are the same ridiculous arguments in the Prager case. And I mean that… they’re almost verbatim. Here’s from the first cause of action in the Prager case:
Article I, section 2 of the California Constitution protects the liberty of speech and association, especially in public, quasi-public, and limited public spaces.
In YouTube, Defendants created and maintain a public forum or its functional equivalent for the public to express and exchange views and ideas, or in the alternative at least a quasi- or limited public forum. Defendants further act as state actors because Defendants and the YouTube site perform an exclusively and traditionally public function by regulating free speech within a public forum.
And from the Johsnon case:
Article I, section 2 of the California Constitution protects the liberty of speech and association, especially in public, quasi-public, and limited public spaces….
In Twitter, Defendant created and maintains a public forum or its functional equivalent for the public to express and exchange views and ideas, or in the alternative at least a quasi- or limited public forum.
They’re not identical, and each case fleshes out more specifics about the platform in question they’re suing, but the arguments are remarkably similar (and, no, they’re not using the same lawyers). Johnson’s lawsuit gets particularly silly. You can read the whole thing yourself if you’d like, but it’s based on the preposterous notion that Twitter has to allow everyone on their platform and can’t kick people off. As with the Prager suit, this complaint makes strong reliance on the idea that Johnson was banned for his political views, rather than because he was a troll who regularly went on the attack, often accused of promoting false information or making trollishly outrageous claims.
But, even if he was banned for his political views (and, again, he wasn’t), Twitter actually has the legal right to put in place just such a ban. It would be stupid and counterproductive — which is why Twitter does not actually ban people over such things — but it would be legal. Johnson’s lawsuit even points out that Twitter’s current terms of service state: “We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any or no reason.” And then immediately whines that they had “no valid business reason” for banning him. First off, that’s not true. There were lots of valid business reasons for banning him — in the form of lots of users complaining about his behavior and tons of people threatening to quit Twitter if the site didn’t get rid of certain trolls.
Again, though, even that doesn’t impact the legal analysis here. Twitter is within its clear legal rights to remove any user from its service.
Like with the Prager case, we expect the courts not to allow this case to go very far at all. And, unlike in the Packingham case, this really is a situation where if one social media site doesn’t want you, there are lots of other alternatives. Johnson told Buzzfeed (who broke the news of the lawsuit) that this was an important First Amendment case:
?This is going to be a very serious case over the freedom of the internet,? Johnson told BuzzFeed News. ?And whether people have the right to say what they mean and mean what they say.?
Except… that’s not what the case is actually about. Johnson is free to say whatever he wants. He is not free to force private companies to host that speech. If there is any First Amendment argument here at all, it is on Twitter’s side, in that the First Amendment gives it the right to present its own site the way it wants to — and that includes kicking off people it feels are behaving badly.