In 2015, Twitter permanently banned alt-right troll Chuck Johnson, after he tweeted that he wanted to “take out” civil rights activist DeRay McKesson. Johnson now says the San Francisco-based company infringed on his First Amendment rights. But the law may say otherwise.
On Monday, Johnson filed a lawsuit against Twitter, arguing that the company banned him for his political beliefs in what he believes is a clear violation of free speech. It asserts that Twitter is “a privately owned public square,” and that political speech expressed in that public forum ought to receive First Amendment protections. It also argues that Twitter broke the promise to be open and unbiased that it makes to users like Johnson by booting him, which, his lawyer argues, constitutes a breach of civil contract. Johnson is seeking not only damages, but restoration of his account.
Legal experts—including Johnson’s own lawyer, Robert Barnes—largely agree that Johnson’s case is a long shot. “Most cases I take are perceived as underdog cases, and the odds are difficult,” Barnes told WIRED, noting that the public has “never seen Twitter beat yet in court.”
Regardless of the ultimate outcome, though, the framing of his argument makes Johnson’s Twitter case worth watching.
“The lawsuit is unlikely to be successful,” says Neil Richards, a professor at Washington University Law School, who specializes in First Amendment theory. “But that doesn’t mean there aren’t really important questions about the level of power that these platforms have and the effect their policies have upon the state of free expression in our society, and by extension, how our democracy works.”
Johnson’s suit joins a growing number of cases that have debated whether or not social media is the new “public square.” Last year, the Supreme Court issued a decision in Packingham v. North Carolina, a case in which North Carolina sought to ban child predators from using social platforms. The court struck down the North Carolina law, and referred to social platforms as the “modern public square.”
The Knight First Amendment Institute, meanwhile, recently sued the Trump administration over the president’s habit of blocking his critics on Twitter, arguing that because Twitter is a public forum, doing so blocks free speech.
‘His argument might be creative, but it’s unlikely to be taken seriously by the court.’
Neil Richards, Washington University Law School
But when First Amendment activists question the steps platforms like Twitter, Facebook, and YouTube have taken to police user behavior, they often elide one critical detail: The law prohibits the government from limiting speech, but businesses like Twitter are free to moderate however they see fit. In Packingham, for instance, the Supreme Court said that states can’t prevent individuals from accessing social media—but it doesn’t require every social media company to grant access to every individual.
“Twitter is free to make rules of conduct and practice for all Twitter-users,” says Lincoln Caplan, a senior research scholar at Yale Law School, who recently wrote about this topic for WIRED.”If someone violated those rules and Twitter has applied them consistently to others and to that person, Twitter can ban him.” Twitter declined to comment for this story.
These suits tend to hinge on whether social media is the modern-day equivalent of public square because of Marsh v. Alabama, a 1946 Supreme Court case that addressed similar issues. The town of Chickasaw, Alabama had exiled a Jehovah’s Witness named Grace Marsh for distributing religious literature. Chickasaw happened to be a company town, owned by Gulf Shipbuilding Corporation. Gulf argued it had every right to prevent Marsh from trespassing on private property, while Marsh argued the company had violated her First Amendment rights. The Supreme Court ruled in Marsh’s favor.
“Gulf had assumed a public function—the running of the state—and because they did, they were treated like the state, and therefore they were held by the First Amendment,” says Richards.
The Johnson suit explicitly attempts to piggyback on this precedent, arguing that “Twitter is the new company town, shifting the public sidewalks of cyberspace to its monopolized public square of the Twitter feed.”
Richards points out, though, that in the decades since Marsh the Supreme Court has changed its mind on this issue—ruling, for instance, that shopping malls can expel protesters. Siding with Johnson, Richards says, would require a “major departure” from existing law. “His argument might be creative, but it’s unlikely to be taken seriously by the court,” Richards says.
Johnson’s lawyer, Barnes, notes that California’s state constitution does offer additional protections to its citizens. It’s legal to protest in California shopping malls, even though they’re private property. Barnes argues that Twitter is more akin to the public square today than any shopping mall, but, he acknowledges, “It is a novel question as it applies to Twitter in the state of California. It hasn’t been litigated either way.”
Johnson’s insistence that Twitter discriminated against him on the basis of his political viewpoints likely won’t sway the courts, says Kate Klonick, a resident fellow at the Information Society Project at Yale Law School. The Civil Rights Act prohibits discrimination on the basis of race, color, religion, or national origin, and the Americans with Disabilities Act prevents discriminating against people because of their disabilities. But political views aren’t granted the same protections.
“You have the right to kick someone out of your restaurant if they’re yelling they support the KKK,” Klonick explains. Besides it’s tough to argue that Twitter has shut out Johnson because of his conservative viewpoints when David Duke, former Grand Wizard of the KKK, remains on Twitter.
The public square is just one peg of the Johnson suit. Barnes also argues that Twitter has gone back on its word. “Private businesses must keep their public promises,” he says. The complaint highlights public comments in which Twitter executives call the the platform the “free speech wing of the free speech party,” and marketing materials that describe Twitter’s mission to “amplify every voice.”
Johnson claims that he relied on that promise, and by not holding up its side of the bargain, Twitter caused him harm. This, explains Woodrow Hartzog, a professor of law and computer science at Northeastern University, is a legal principle known as “promissory estoppel,” and it’s being argued with increasing frequency with regard to social media.
“Social platforms are a natural place to test some of these theories, because of the power that they have and the importance of free speech in our democracy,” Hartzog says. And yet, he adds, “because it’s so broad, courts have been reluctant to embrace that theory with regard to the internet.”
‘You have the right to kick someone out of your restaurant if they’re yelling they support the KKK.’
Kate Klonick, Yale Law School
Johnson’s suit also alleges that Twitter’s terms of service constitute a contract, and by refusing to provide that service to Johnson, Twitter breached that contract. But when Twitter booted Johnson in May 2015, its terms of service reserved the right to suspend or terminate accounts “for any or no reason.”
Barnes points to a recent Buzzfeed report that revealed Twitter executives’ internal emails concerning the decision to ban Johnson. According to the emails, the decision was based on a directive from then-Twitter CEO Dick Costolo. According to Barnes, those emails undermine the notion that Johnson’s tweet about DeRay McKesson was the reason for his expulsion.
Still, says Dan Rhynhart, a commercial litigator at Blank Rome, the tweet in question may prove unsympathetic to a judge. “Any court would find this is a meritorious basis to suspend the account.”
The goal of Johnson’s suit appears primarily to convince the court of public opinion, rather than an actual court. “He’s saying, ‘Look how terrible these liberal companies are, discriminating against conservatives,'” Yale Law School’s Klonick says.
But even a thin case case can pose questions that have merit. What responsibility does Twitter have to provide access, given its outsized role in public discourse? The company refuses to delete the account of President Trump, a man who routinely abuses the platform to disparage people and threaten nuclear war, because it sees itself as a crucial and irreplaceable communication channel for world leaders. But Twitter does not, apparently, extend those exceptions for ordinary citizens who abuse it in similar ways.
“Johnson’s absolutely right that Twitter and Facebook and YouTube exercise enormous and largely unchecked power over who can speak and for what reason,” says Washington University Law School’s Richards. “The only real check is the market, and that’s something we’re having a hard time working through as a society, and it’s probably fair to say as a civilization.”
Someday, someone might figure out a way to reconcile all of these inconsistencies. It just probably won’t be Chuck Johnson.
© 2018 Condé Nast. All rights reserved.
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