Cara Bayles, Law360, June 14, 2018

A San Francisco judge trimmed but didn’t end a white separatist’s lawsuit against Twitter over its suspension of his account, finding Twitter had made public representations that it wouldn’t censor users and can’t now claim that it has a free speech right to remove content from its platform.

Twitter Inc. {snip} filed a demurrer, saying none of the claims could survive under the Communications Decency Act. It also filed a free speech challenge under California’s anti-SLAPP statute, claiming the suit’s success could “infringe on Twitter’s own First Amendment right to exercise editorial control and judgment.”

{snip} Superior Court Judge Harold Kahn ruled from the bench, finding that Twitter’s terms of service, which said it could suspend an account at any time for any reason, amounted to “an unconscionable contract violative of California’s civil code,” especially since the company also promised it would “not censor user content.”

“I believe the complaint alleges that Twitter is the largest communication platform in the world and the way to get your word out and to be heard in the modern era,” Judge Kahn said. “For Twitter to know that, and nonetheless require its users to agree to this term in a prolix document that is not highlighted on a take-it-or-leave-it basis, is procedurally unconscionable in a large measure.”

But Twitter attorney Patrick Carome of WilmerHale disagreed, saying {snip} “It’s just like a newspaper could choose not to run a letter to the editor it receives{snip},” he said. {snip}

{snip}

On Thursday, Judge Kahn granted most of the demurrer, knocking out Taylor’s free speech claims under the California Constitution and his claim the suspension violated the state’s Unruh Civil Rights Act, which outlaws viewpoint discrimination. He said neight claim could survive under Section 230 of the Communications Decency Act, which protects websites from liability for posts made by third-party users.

Taylor’s attorneys didn’t defend those claims at Thursday’s hearing.

The judge also denied Twitter’s anti-SLAPP motion, finding the company hadn’t met the statute’s first prong requiring a showing of First Amendment violations and because the suit was subject to a carveout anyway, since it was “hard to imagine a clearer public interest lawsuit” than Taylor’s.

{snip}

Randazza added that Taylor’s suit was for “all users on the platform,” noting he sought no damages, nor attorneys’ fees.

“Twitter created this ecosystem. I’m sorry they were so successful, but they were. They should not be afraid of the marketplace of ideas,” he said. “We want to know why Twitter decided to embark on this campaign.”

{snip}