Court To Revenge Porn Bro Suing Twitter: You Agreed To Twitter Picking The Courtroom Every Time You Created A New Alt Account

from the pro-se-at-life dept

Craig Brittain's $1 billion lawsuit against Twitter is still rolling slowly towards its inevitable dismissal. Bringing with him his usual legal expertise -- which includes badly misreading the Knight Institute v. Trump decision and asking for some weird hybrid judgment/injunction/perma-unbanning -- Brittain has so far forced Twitter to… move his case to another venue. (via Eric Goldman)

Twitter invoked the forum selection clause of its terms of service -- terms Brittain agreed to time and time again as he created new accounts only to have them permanently suspended later. The terms say Twitter can move your lawsuit to its preferred venue (California federal court) and if you don't like it, well… you can just not use Twitter and/or sue Twitter.

Brittain's attempt to avoid having his Arizona lawsuit moved to California contains some rather novel legal arguments. First, he claimed Twitter's terms of service were invalid because [checks filing] it doesn't contain the mandatory "option" of arbitration. Here's the court's take [PDF]:

Brittain asserts that the Terms are unconscionable because they contain no arbitration clause and “have changed over time without arbitration.” Doc. 27 at 4. But Brittain cites no legal authority suggesting that Twitter is required to include an arbitration clause in its Terms. Nor has he otherwise shown that the Terms are unconscionable or illusory.

Second, he claimed it would be impossible for him to continue his doomed lawsuit in another state because he has no way of getting to California. It may be true -- and forum selection does tend to create unnecessary expenses for plaintiffs/defendants -- but in this case it isn't because the federal courts are accessible by those with limited travel options.

Brittain asserts that his status makes it “gravely difficult” for him to participate in the litigation. Doc. 27 at 2, 5. He notes that he “is traveling primarily by bicycle and/or public transportation to file, upwards of 40 miles per trip[.]” Id. at 2. But the Northern District of California permits filing by mail, eliminating the need for Brittain to bicycle or use public transportation to file court documents.3 The fact that Brittain is a self-represented, indigent litigant is no basis for not enforcing the forum selection clauses. As noted, the private interests of the parties must be weighed in favor of the preselected forum. See Yei, 901 F.3d at 1087. Brittain has not shown that litigating in California “will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” M/S Bremen, 407 U.S. at 18.

Brittain also claims millions of social media users would cry out at once and be silenced if Twitter was allowed to take Craig's unwinnable lawsuit to California. Brittain asserts… reasons.

Brittain further asserts that enforcement of the forum selection clauses would “contravene a strong public policy of the venue in which the suit was brought,” and “the public policy of . . . the District of Arizona is superior to that of the requested forum.” Doc. 27 at 5. He cites the purported “public interest of over one billion total users,” including “tens of millions who have been censored, deverified, or suspended by Twitter,” but draws no connection between the interests of those alleged users and Arizona public policy.

The court is not swayed.

Twitter notes, correctly, that Arizona public policy favors enforcing forum selection clauses. Doc. 30 at 8. “Enforcement of a forum selection clause such as the one[s] at issue does not contravene any strong Arizona public policy as Arizona courts routinely hold that forum selection clauses are presumptively valid and that the party claiming the oppressiveness or unreasonableness needed to invalidate such a clause must meet a heavy burden of proof.”

Brittain's lawsuit is still alive for the time being. He'll just have to lose it in California, rather than in front of the home crowd.

Filed Under: content moderation, craig brittain, jurisdiction, pro se, revenge porn
Companies: twitter


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  • icon
    Mason Wheeler (profile), 15 Jan 2019 @ 2:30pm

    That's very disappointing, to see a court accept clickthrough terms of service that no one reads as if they were a real, valid, binding contract.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jan 2019 @ 3:40pm

      Re:

      What planet are you from? Terms of service are a contract.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jan 2019 @ 3:44pm

      Re:

      I'm curious as to what you think is an alternative method for setting terms of use for a web service should be.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Jan 2019 @ 3:44pm

        Re: Re:

        oops, -"is"

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Jan 2019 @ 7:30am

        Re: Re:

        We're not talking about what Twitter says users need to do, and what they can ban people for, we're talking about what they can get courts to enforce. Courts, especially outside the USA, will frequently invalidate parts of contracts like that. It's why Europeans can sue American companies in Europe and under European law, even though they've in all likelyhood "agreed" to sue in California, Delaware, or wherever—or more likely "agreed" to use arbitration rather than courts.

        reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 16 Jan 2019 @ 7:59am

        Re: Re:

        Terms of service are fine for purely internal matters, but once we start going out into the real world, treating terms of service (or EULAs, which are essentially two versions of the exact same thing) as enforceable gets into all sorts of thorny questions of "private law," which is never a good thing to have.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 16 Jan 2019 @ 9:15am

          Re: Re: Re:

          So, again, what is your alternative for websites providing users with the terms for using the website?

          reply to this | link to this | view in chronology ]

          • icon
            Mason Wheeler (profile), 16 Jan 2019 @ 9:38am

            Re: Re: Re: Re:

            I've always been a big fan of the concept of "the rule of law," myself...

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 16 Jan 2019 @ 9:48am

              Re: Re: Re: Re: Re:

              Why is answering a simple question so difficult for you?

              reply to this | link to this | view in chronology ]

              • icon
                Mason Wheeler (profile), 16 Jan 2019 @ 10:23am

                Re: Re: Re: Re: Re: Re:

                That is an answer. I believe that the rule of law, and the rights that it establishes, should forbid attempts by private institutions to infringe upon those rights just as much as it does for similar attempts by public institutions. More so, even, as private institutions do not have the same accountability for their actions as public ones do, and so require a greater degree of scrutiny to balance that out.

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 16 Jan 2019 @ 11:55am

                  Re: Re: Re: Re: Re: Re: Re:

                  Private institutions can impose rules.

                  Again, the question you refuse to answer: how should a private institution, such as a website, impose rules on its users?

                  reply to this | link to this | view in chronology ]

                • icon
                  Thad (profile), 16 Jan 2019 @ 12:46pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Mason, you're bluffing and you're not very good at it. You do this pretty frequently. You say something incredibly vague like "the rule of law" or "the First Amendment" and act like that answers somebody's question. Has anybody ever fallen for that?

                  It's okay to say "I don't know." It's okay to acknowledge when you've identified a problem but you don't have a perfect solution to it.

                  Here's the thing: I agree with you on this. I believe that click-through agreements are unconscionable and should not be enforceable as legal contracts.

                  But when somebody asks me the question, "How can the Web as we know it operate at scale if every user has the right to negotiate the TOS?" the answer is, I don't know. That's a good question.

                  When someone challenges you, don't dig in and fold your arms and try to bluff. Nobody's falling for that "I already answered!" trick; it doesn't work when Chip does it and it doesn't work when you do it.

                  Being challenged is how we learn. It's how we assess weaknesses in our position (and again, it is our position; I agree with you).

                  "Rule of law!" is not an answer. It's vague to the point of meaninglessness.

                  Not having all the answers is okay. Nobody has all the answers. I don't have all the answers either. When people point out a weakness in my position, I take note of it. Sometimes I change my position. Sometimes I spend more time thinking about it and figure out an answer to that weakness.

                  You're a smart dude. But you really don't seem to take well to having your positions questioned. I suggest you work on that; you'll learn more that way.

                  Or you could just call me names and ragequit the thread again. That's another kind of bluff. But it's not fooling anybody either.

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 16 Jan 2019 @ 1:58pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    You can always tell the troll in the Internet debateby the way he goes to great lengths to show how *reasonable* he's being while attacking somebody.

                    I had no trouble following Mason's argument. He did already answer satisfactorily here.
                    Just because your reading comprehension apparently leaves something to be desired doesn't mean it's your opponent's fault. That's on you, Thad.

                    reply to this | link to this | view in chronology ]

                    • identicon
                      Anonymous Coward, 16 Jan 2019 @ 2:19pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Bless your heart, you must be new here. Why don’t you have a seat while the adults in the room talk.

                      reply to this | link to this | view in chronology ]

                    • identicon
                      Anonymous Coward, 16 Jan 2019 @ 3:27pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Oh good, then you can answer the question that Mason will not.

                      reply to this | link to this | view in chronology ]

                      • identicon
                        Anonymous Coward, 17 Jan 2019 @ 6:11am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Seriously, u a bot or something bro? Because bots are great at repeating the same stupid lines over and over, and bad at remembering stuff the other guy said in the past. Just like you. He said, plain as day, that terms of service are fine for purely internal matters, and it becomes a problem when it crosses into the territory of the law and they start getting treated as private law.

                        Learn some reading comprehension already, dood!

                        reply to this | link to this | view in chronology ]

                      • icon
                        Mason Wheeler (profile), 17 Jan 2019 @ 7:31am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Wow, apparently you just failed the Turing Test! o_0

                        reply to this | link to this | view in chronology ]

                • icon
                  PaulT (profile), 17 Jan 2019 @ 12:33am

                  Re: Re: Re: Re: Re: Re: Re:

                  "I believe that the rule of law, and the rights that it establishes, should forbid attempts by private institutions to infringe upon those rights just as much as it does for similar attempts by public institutions"

                  Maybe it should - but it doesn't. Nor should it. A private institution should have every right to be able to exercise its freedom to espouse a certain religious viewpoint, for example, even though a public institution would rightly be forbidden from doing so.

                  Hopefully you accept that. If you do, I'm also interested in your answer to the question posed by the AC - if a venue is free to set rules for participating in that venue, which method should they use to state and have their visitors agree to those rules if not through a TOS agreement or EULA?

                  reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jan 2019 @ 3:44pm

      Re:

      People have the option of reading them, and if the don't before clicking accept, that is their problem.

      reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 15 Jan 2019 @ 3:47pm

      Re:

      Where have you been for the last (seems like) 867,000,000 years that the courts have held such agreements to be binding? From the foundational software shrink-wrap agreements on?

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 16 Jan 2019 @ 8:36am

        Re: Re:

        As far as I'm aware, shrink-wrap agreements have been upheld in exactly one US case, in the 9th circuit, and that ruling was utterly wrong as it flies in the face of the Supreme Court's decision in Bobbs-Merrill Co. v. Straus, which established the First Sale Doctrine by stating that exactly this kind of contract is completely void and worthless.

        Unfortunately, it was not reviewed and overturned by the Supreme Court. Fortunately, I don't live within 9th Circuit jurisdiction.

        reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 15 Jan 2019 @ 6:58pm

      Re:

      Or perhaps that was just the cover story after Craigs motion to have the lawyer representing Twitter thrown off the case, anything he submitted be ignored, & he prepare himself to be called as a witness about Twitters evil shadowbans for Craig to grill on the stand.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 16 Jan 2019 @ 3:09am

      Re:

      Since he's apparently operating as his own legal counsel, I have no problem with them treating him as if he were a lawyer - and I'd very much expect someone in that field to be reading the contracts they agree to.

      reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 16 Jan 2019 @ 9:24am

      Re:

      I agree that courts should reconsider the enforceability of click-through TOS agreements.

      However, in order for a court to consider a legal argument, somebody has to make it. Brittain's argument for why Twitter's TOS is an unconscionable contract is uninformed gibberish by a contemptible creep with a fool for a client.

      I wish better luck to future litigants in getting courts to reconsider whether TOS agreements are unconscionable. But ideally those future litigants will be represented by actual lawyers, not David Blade III.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jan 2019 @ 12:12am

    Is Brittain having problems with "Twexit",

    another thing to add to Craig's list?

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 16 Jan 2019 @ 12:34am

    It took me a moment to remember that this article was talking about Pustule Nickelback McHitler III.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jan 2019 @ 7:35am

    Wow Craig keeps on shitting on himself doesn't he?

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 16 Jan 2019 @ 11:03pm

    Pustule's frivolous lawsuit claims sound a lot like they come from some of Techdirt's trolls.

    reply to this | link to this | view in chronology ]


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