Internet platforms can ban users’ speech, panel rules

Adding heat to the already flaming debate surrounding Section 230 of the Communications Decency Act, a state appellate court has sided with Twitter, ruling that internet platforms have the right to ban users for speech the company considers hateful.

The ruling by a panel of the 1st District Court of Appeal, Division 1 in San Francisco seemed to raise routinely asked questions about whether social media platforms should enjoy the broad protections of Section 230 that shield them from libel and defamation suits, while at the same time allowing them to actively editorialize speech on their sites.

When Meghan Murphy, a Canadian journalist, and founder of the podcast "Feminist Current," posted several messages critical of transgender women on Twitter, the company took down her posts and informed her she had violated its hateful conduct rules, according to the ruling, which was certified for partial publication on Jan. 22. After she posted additional similar messages, for example, "Men aren't women," Twitter permanently suspended her account.

Represented by Gregory R. Michael of Michael Yamamoto LLP, Murphy sued, alleging breach of contract, promissory estoppel, and violation of the unfair competition law.

Michael said he was disappointed by the ruling and was concerned about its long-term consequences.

"Under the court's extremely expansive reading of Section 230, internet platforms, like Twitter, Zoom, and Facebook, may now claim immunity from breaching their agreements with users and advertisers alike, provided that the platform's actions relate in some way to the company's editorial decision-making process of deciding what, or what not, to host on their platform," Michael said. "Under the court's ruling ... the internet platforms may arbitrarily block users; discriminate against gays, lesbians, and transgendered persons; or just decide that they don't like what you're saying and disable your audio ... Unfortunately, this is now the reality we face."

Michael said he, his co-counsel and client are still "evaluating how to move forward."

Affirming a lower court's judgment, the appellate panel reasoned that under Section 230, service providers have broad immunity from liability for traditional editorial functions undertaken by "publishers -- such as decisions whether to publish, withdraw, postpone or alter content created by third parties."

"Because each of Murphy's causes of action seek to hold Twitter liable for its editorial decisions to block content she and others created from appearing on its platform, we conclude Murphy's lawsuit is barred by the broad immunity conferred by the CDA," wrote Justice Sandra L. Margulies, with Presiding Justice Jim Humes and Justice Kathleen M. Banke concurring.

The panel found while Murphy was correct that some courts have rejected the application of Section 230 immunity to certain breach of contract and promissory estoppel claims, many others have concluded such claims could not survive because "the plaintiff's cause of action sought to treat the defendant as a publisher or speaker of user generated content." Meghan Murphy v. Twitter Inc., 2021 DJDAR 823.

The panel said Murphy relied heavily on a successful promissory estoppel lawsuit brought against Yahoo, in which the 9th U.S. Circuit Court of Appeals considered whether an Internet service provider was liable for its failure to remove material harmful to the plaintiff but failed to do so. Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570.

However, unlike the plaintiffs in the Yahoo suit, which relied on the service provider's promise to remove harmful content, Murphy does not allege someone at Twitter specifically promised her they would not remove her tweets or would not suspend her account, Margulies wrote

"Rather, Twitter's alleged actions in refusing to publish and banning Murphy's tweets, as the trial court in this case observed, 'reflect paradigmatic editorial decisions not to publish particular content' that are protected by Section 230," she wrote.

In a statement Wednesday, Twitter spokesman Trenton Kennedy wrote, "We are pleased the California Court of Appeals affirmed the lower court's granting of our motion to dismiss this case."

Christa Ramey of Ramey Law PC, who was not involved in the suit but specializes in personal injury and bullying, said while she fully agreed with the ruling, and believes social media platforms should do more to monitor content, Section 230 is too broad.

"In 2020, Twitter started making an editorial comment on the content on their site: 'This information is disputed' or 'This information is demonstrably false,' or whatever they would put," Ramey said in a phone interview Wednesday. "Then they eventually took posts down. It looks like this is the same thing they did with Murphy. They took stuff down and eventually had to remove her because she kept doing what they told her they didn't want her to be doing. If they are, in fact, exercising editorial discretion, aren't they a publisher?"

Ramey compared the Twitter suit to one of the largest libel suits, filed this month by Florida-based voting technology company Smartmatic USA against Fox News, three of its hosts and two former lawyers for former President Donald Trump. The suit seeks $2.7 billion in damages, claiming the defendants conspired to spread false claims that Smartmatic helped steal the U.S. presidential election.

"Fox News and Newsmax and others are facing the threat of lawsuit," Ramey continued. "If the same things were being said and they were being said on Twitter by others, but yet Twitter is completely immune from any responsibility and has not taken editorial action to take that content down. So if Fox News and Newsmax can be held responsible for what people say, is defamatory, Twitter should be as well."

Also agreeing with the decision but noting that Section 230 is too broad, Daniel B. Lifschitz of Johnson and Johnson LLP and not involved in the suit, said Margulies' opinion provides a thoughtful and "thorough application of existing Section 230 precedent."

"I disagree with the proposition that Section 230's protections are too broad," Lifschitz said in an email Wednesday. "The publisher/platform distinction does not scale to the needs of social media, search engines, or many other internet services that we rely on and enjoy in our everyday lives. Section 230 was specifically created to avoid the 'moderator's dilemma' of having to either prescreen all user-generated content or let a service devolve into a toxic free-for-all.

"To the extent that websites engage in editorialization, courts have already held that Section 230 does not protect that conduct so long as the editorialization itself (rather than the user-generated content being editorialized) is what gives rise to liability," Lifshcitz continued. "Any attempts to broaden that distinction will simply reinstate the 'moderator's dilemma' and eviscerate the utility of Section 230."

Michael said he, his co-counsel and client are still "evaluating how to move forward."