Content Regulation / Censorship, Intermediary Liability
Mezey v. Twitter Inc.
Closed Mixed Outcome
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The United States District Court for the Northern District of California was asked to decide on the question of the violation of the right to free speech under the First Amendment to the United States Constitution in the backdrop of the “state-action doctrine” elaborated and backed by various precedents. A suit was filed by former U.S. President Donald J. Trump and others against Twitter on behalf of themselves and a class of Twitter users whose accounts were suspended or banned for different reasons allocated to respective individuals including “the risk of further incitement of violence” which led to the permanent suspension of the account of the former president. While dismissing the amended complaint in its entirety, the court also pointed out that the terms of services of Twitter gave Twitter contractual permission to act as it saw fit with respect to any account or content for any or no reason thereby making its ostensible motives irrelevant for a deceptive-practices claim.
On January 8, 2021, Twitter permanently suspended the accounts of former President of the United States of America, Donald J. Trump “due to the risk of further incitement of violence” along with accounts of other Twitter users on various dates citing respective reasons for each suspension [p. 2]. Donald J. Trump along with the American Conservative Union and five individuals (together referred to as Plaintiffs) sued Twitter Inc. and Jack Dorsey on behalf of themselves and other aggrieved Twitter users whose Twitter accounts were censored and “de-platformed” [p. 1].
Plaintiffs alleged that these actions were the result of coercion by members of Congress affiliated with the Democratic Party and that Twitter willfully participated in joint activity with federal actors to censor plaintiffs and the putative class members [p. 2-3].
The Plaintiffs brought the amended complaint alleging claims under the First Amendment and Florida State Consumer and “Social Media” Statutes, and sought a declaration of unconstitutionality of Section 230 of the Communication Decency Act, which absolves the online service providers like Twitter from responsibility for content posted by others [p. 1]. The case was originally filed by plaintiffs in the United States District Court for the Southern District of Florida and was transferred to the United States District Court for the Northern District of California on the basis of a forum selection clause in Twitter’s Terms of Service [p. 3].
Justice James Donato of the Northern District of California presided over this case. The main claim of the plaintiffs in violation of their right to free speech under the First Amendment to the United States Constitution, was dismissed because of the failed application of the “State Action Doctrine”. The court asserted that the First Amendment applies only to governmental abridgment of speech, and not to alleged abridgements by private companies [p. 3]. The State Action Doctrine provides that in some situations, “governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints” [p. 4]. The court agreed that the ultimate determination of state action was a necessarily fact-bound enquiry, nevertheless, plaintiffs were required to provide in the complaint enough facts to plausibly allege a claim against Twitter on the basis of State Action [p. 4].
The prime question under the state action doctrine is whether “the conduct allegedly causing the deprivation of a federal right is fairly attributable to the state”, which is determined by a “two-part approach”, requiring that “the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible”, and that “the party charged with the deprivation must be a person who may fairly be said to be a state actor” [p. 5]. The court pointed out that the facts alleged in the amended complaint were not nearly enough for plaintiffs to proceed on a state action theory as the amended complaint did not show that the First Amendment injury was caused by “a rule of conduct imposed by the government”. The court affirmed that the comments made by elected officials cannot form a rule of decision for which the State is responsible and that it could not be concluded that Twitter or any other listener could discern a clear state rule in such remarks or even determine what a legislator’s preferred views might be [p. 6]. While going through the reasons of suspension of the accounts, the court observed that the explanations indicated that Twitter acted in response to factors specific to each account, and not pursuant to a rule of decision [p. 7]. After going through the contents of the amended complaint the court decided that Twitter could not fairly be deemed to be a “state actor” [p. 7].
The court referred to Bantam Books, 372 U.S. 58, wherein the Supreme Court concluded that the acts were performed under Color of State Law [p. 9], and in comparing the factual matrix of the Bantam Books and other citations produced by the plaintiffs (Lombard v. State of Louisiana, 373 U.S. 267 (1963), Carlin Communications, Inc. v. The Mountain States Telephone and Telegraph Company, 827 F.2d 1291 (9th Cir. 1987), and Mathis v. Pacific Gas and Electric Company, 891 F.2d 1429 (9th Cir. 1989), with the case in hand, the court found the latter to be lacking the necessary elements of a state-action qualification [p. 11]. With regards to the plaintiff’s allegation of punitive state action based on the comments voiced by a few members of Congress, the court observed that the same fits within the normal boundaries of a congressional investigation as opposed to punitive state action [p. 12]. The court hence decided that the amended complaint did not adequately allege a First Amendment claim against Twitter and dismissed the claim [p. 13].
The plaintiffs also asked the court to declare Section 230 of the Communications Decency Act, which absolves the online services providers of the responsibility for the content posted by others, as unconstitutional [p. 3]. The court affirmed that a party raising such a claim must demonstrate that she has suffered an “injury in fact” which is “fairly traceable” to the conduct being challenged, and that the injury was likely to be “redressed” by a favorable decision. The court found the grounds raised by the plaintiffs to be speculative and vague and declined to rule in favor of the plaintiffs [p. 14].
Finally, the court while dismissing the plaintiffs’ claim under the Florida Deceptive and Unfair Trade Practices Act relied on the Terms of Service (TOS) of Twitter and observed that the plaintiffs have not presented a good reason to disregard the choice of California Law in the TOS. The court further observed that the TOS gave Twitter contractual permission to act as it saw fit with respect to any account or content for any or no reason making its ostensible motives irrelevant for a deceptive-practices claim [p. 16]. The fourth and last claim of the plaintiffs was under the Florida’s Stop Social Media Censorship Act (SSMCA) which was dismissed by the court as there was a major concern about the enforceability of the SSMCA.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The court made a clear demarcation on the admissibility of claims under the First Amendment to the Constitution of the United States of America with regard to actions of private entities and state-action. However, this decision gives platforms such as Twitter considerable leeway regarding their Terms of Services without any mandate of social responsibility and due lawful check on the terms and conditions of service, which might lead to unwarranted suppression of the voices which are not fulfilling the interest of theses private entities.
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