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."

The Public Square

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.