Court Not At All Impressed By Chuck Johnson's Silly Lawsuit Against Twitter, Plans To Grant Anti-SLAPP Win To Twitter

from the slappity-slapp-slapp dept

Back in January we wrote about infamous internet troll Chuck Johnson's absolutely ridiculous lawsuit against Twitter for kicking him off the service. As we noted at the time, the lawsuit appeared to be nearly a carbon copy of Dennis Prager's silly lawsuit against YouTube. And, if you recall, a court tossed that lawsuit earlier this year. And now it's clear that a court is about to toss Johnson's lawsuit as well on anti-SLAPP grounds.

On Tuesday, the court released a tentative ruling and lays out the many, many reasons why Johnson has no case at all, both under CDA 230 and the First Amendment.

Plaintiff further argues that Defendant is not entitled to the protection of the CDA because Defendant seeks to be treated both as a neutral content provider pursuant to the CDA, but at the same time asks for First Amendment protection for its editorial decision to terminate Plaintiff’s accounts. But this is not the standard for immunity under the CDA. (See 47 U.S.C. §230.) Plaintiff cites to 47 U.S.C. §230(c)(2), which requires a showing of good faith in order to be protected from civil liability by the CDA. Defendant, however, relies on subdivision (c)(1), which provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The heading of subdivision (c) is “Protection for ‘Good Samaritan’ blocking and screening of offensive material.” (Italics added.) Plaintiff fails to establish that Defendant is not entitled to protection under the CDA, i.e., Plaintiff fails to show that his claims are not barred by the CDA.

Plaintiff also fails to show that his claims can survive Defendant’s challenge based on Defendant’s First Amendment right. Defendant is a private sector company. Although it does invite the public to use its service, Defendant also limits this invitation by requiring users to agree to and abide by its User Rules, in an exercise of Defendant’s First Amendment right. The rules clearly state that users may not post threatening tweets, and also that Defendant may unilaterally, for any reason, terminate a user’s account. The rules reflect Defendant’s exercise of free speech. (See Hurley, supra, 515 U.S. at p. 574.) Plaintiff fails to show that his claims are not barred by Defendant’s First Amendment right to exercise independent editorial control over the content of its platform. Defendant’s choice to close Plaintiff’s account on the ground that Plaintiff’s tweet was threatening and harassing is an editorial decision regarding how to present content, i.e., an act in furtherance of Defendant’s free speech right. Defendant’s choice not to allow certain speech is a right protected by the First Amendment.

The court also laughs off the attempt by Johnson and his lawyers to get around all this by arguing that a well known Supreme Court case concerning shopping malls (Robins v. Pruneyard Shopping Center) somehow means that social media sites can't remove users. We've seen lots of people make this argument for why websites must post the speech of anyone who wants to use those websites, but no court in the land has ever agreed, and this California court certainly wasn't going to be the first.

Plaintiff’s reliance on Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 is misplaced and fails to defeat Defendant’s CDA and First Amendment protections. In Robins, the California Supreme Court held that the soliciting at a shopping center of signatures for a petition to the government is an activity protected by the California Constitution. The Court specifically noted that “[b]y no means do we imply that those who wish to disseminate ideas have free rein.” The Court reasoned: “A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations . . . would not markedly dilute defendant's property rights.” (Id. at pp. 910-911.) The case is distinguishable from the instant action, where Plaintiff’s tweet could reasonably be, and in fact was, interpreted as threatening and harassing, unlike activity that “would not markedly dilute defendant’s property rights.” (See Sprankling Decl. at Ex. D.) Moreover, Defendant’s rules were adopted to ensure that Defendant is able to maintain control over its site and to protect the experience and safety of its users.

Somewhat hilariously, Johnson's lawyer in the case, Robert Barnes, took to Twitter after the tentative ruling to not just announce a plan to appeal, but... incredibly... to claim victory.

Apparently, Chuck Johnson hired Baghdad Bob as his lawyer.

The key points that Barnes declares "victory" over both appear to involve a somewhat twisted interpretation of what the court is saying. On the first point, of the court declaring Twitter to be a "public forum," that is true, but specifically in the context of California's anti-SLAPP law. I mean, the ruling says that explicitly:

In the instant case, the parties appear to agree that (1) Twitter is a public forum for purposes of the anti-SLAPP statute...

The fact that it is a public forum for the purposes of California's anti-SLAPP statute has no bearing at all on whether or not Twitter is a "public forum" in the sense of spaces created by the government in which speech regulations are limited under the First Amendment. They both use the words "public forum" but they mean totally different things.

The second point, about Twitter's control over its platform being a "matter of public interest," is also specific to California's anti-SLAPP law, which requires the speech in question to be about a matter of public interest. That doesn't help Johnson's case at all, unless you're twisting this specific point concerning anti-SLAPP laws into believing it refers to the government having an interest in regulating how Twitter runs its website. But that would be a totally nonsense interpretation. Though it appears to be the one that Johnson's lawyer wants to go with. The fact that Twitter agreed to both of the points that Barnes is now celebrating (as is necessary under California's anti-SLAPP law) should show you why neither of these points is even remotely damaging to Twitter. And, no, this is not Barnes using 9th dimensional chess to get Twitter to admit to something that harms it elsewhere. This is just nonsense.

Either way, assuming Twitter holds on and wins the anti-SLAPP, it will mean that Johnson will be on the hook for Twitter's legal fees. One hopes that his lawyer informed him not only of this, but the fact that this would also include the additional fees from an ongoing appeal that he seems unlikely to win.


Reader Comments

The First Word

the monster we created

In many ways I blame the US court system, including the Supreme Court, for encouraging these kind of lawsuits. Historically, a business was allowed to literally "choose its customers" just as a customer was allowed to choose a business establishment, based on any reason whatsoever. Then in the 1950s and 60s, courts stepped in and started acting as referees, creating such things as "protected classes" of customers that had to be served by a business against its will. There was indeed a time for that sort of intervention (especially to end enforced racial segregation in the post-slavery Southern states) but that time has long passed. This week's failure of 'gay wedding cake' case that threatened to be added to the ever-growing protected-class list was perhaps the rare exception.

Maybe it's about time to do away with all this legal nonsense and return to the time when a business was allowed to make its own decisions about how to treat its customers, as obviously, those that do a good job at the task will prosper and those that don't will fail. Starbucks did not need to lose a lawsuit before it changed its policies regarding Africans occupying tables and bathrooms without buying anything. No, Starbucks made the change because management [rightly] assessed that it was good for business. Free market forces can and do work, especially in the internet era when reputation will make or break a business. Maybe it's about time for judges to start throwing out these kind of lawsuits instead of continuing to try to referee everything that comes their way, 1960's style.

Perhaps this Twitter court judgement was a good step in that direction.
—Anonymous Coward

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  1. icon
    Stephen T. Stone (profile), 6 Jun 2018 @ 2:37pm

    Re: the monster we created

    Maybe it's about time to do away with all this legal nonsense and return to the time when a business was allowed to make its own decisions about how to treat its customers, as obviously, those that do a good job at the task will prosper and those that don't will fail.

    And when you can assure everyone that every “unbound” company in the U.S. can and will be punished by the “free market” for discriminating against Black people, I’ll agree with you. But given that the South still exists—and trust me, I’ve lived here all my life—you simply cannot guarantee that a “free market” punishment will come to pass if a business owner puts up a “No Coloreds” sign. (If anything, it might increase business.) Spare us with this “businesses should be allowed to say ‘no gays, no blacks, no women’ ” crap; you cannot make a sale on that garbage while more than a thousand monuments to the Confederacy still stand in this country.


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