Self-Described Feminist Loses Lawsuit Against Twitter For Banning Her Account

A California court has tossed a self-described feminist's lawsuit against Twitter for being kicked off the platform. [h/t Adam Steinbaugh]

Meghan Murphy was banned from Twitter for violating the terms of use with tweets stating "men aren't women tho" and "how are transwomen not men?" She also posted tweets referring to certain transgender women as "men," which contained personal information about their previous male identities. Twitter gave several warnings to Murphy that these tweets violated its Hateful Conduct Policy before banning her completely.

Murphy then sued, filing a putative class action lawsuit against the social media service that alleged a variety of contractual violations. She alleged the updated Hateful Conduct Policy hadn't been enacted at the point she was accused of violating it -- specifically the additions that made targeting or "deadnaming" transgender people a violation of the rules.

Murphy hoped to have the court find in her favor and bind Twitter to a large number of stipulations. From the decision [PDF]:

[M]urphy seeks a broad range of injunctive relief, including orders prohibiting Twitter from enforcing its "misgendering" rule, directing it to restore access to any accounts it has suspended or banned for violation of that rule, prohibiting it from promulgating or enforcing any other rules or policies that discriminate based on viewpoint, ordering it not to make material changes to its user agreement without providing 30 days' advance of the changes, prohibiting it from attempting to enforce any changes in its User Agreement retroactively, requiring it to remove the purportedly unconscionable provisions in its Terms of Service governing suspending or banning accounts, and requiring Twitter to "issue a full and frank public correction of its false and misleading advertising and representations to the general public that it does not censor user content""

Not included in this recitation of redresses is the fact that Twitter reserves the right to remove accounts for "any or no reason," which may be bullshit, but it's bullshit Murphy agreed to when she created her now-banned account.

Twitter responded with an anti-SLAPP motion and a recitation of Section 230. The court finds the anti-SLAPP law does not apply because Murphy's complaint is fashioned as a class-action lawsuit seeking relief for her and others like her, rather than seeking to prevent Twitter from engaging in public interest speech of its own.

But Section 230 bars everything else. Contrary to popular belief, Section 230 immunity isn't nullified by moderation activity. In fact, Section 230 encourages good faith moderation efforts and specifically notes this does not remove the immunity given to service providers. Trying to use moderation efforts against platforms in lawsuits like these is a non-starter.

That this case involves Twitter's decision to take down content rather than post it is immaterial: "No logical distinction can be drawn between a defendant who actively selects information for publication and one who screens submitted material, removing offensive content. 'The scope of immunity cannot turn on whether the publisher approaches the selection process as one of inclusion or removal, as the difference is one of method or degree, not substance.'"

Furthermore, attempting to dodge Section 230 immunity with allegations of breached contracts, etc. isn't going to work either. What Murphy claims is a contractual violation is nothing more than the moderation efforts Section 230 encourages.

[A]ll of her claims challenge Twitter's interpretation and application of its Terms of Service and Hateful Conduct Policy to require Murphy to remove certain content she had posted in her Twitter account, to suspend that account, and ultimately ban her from posting from Twitter due to her repeated violations of the Terms of Service and Policy. All of those actions reflect paradigmatic editorial decisions not to publish particular content, and therefore are barred by Section 230.

Murphy's lawsuit is dead, at least in this court. Twitter's motion to demurrer is granted "without leave to amend," which indicates this complaint isn't fixable. This doesn't prevent Murphy from trying again at the federal level, but the outcome won't be any different.

Yes, being deplatformed sucks, especially when it seems -- at least subjectively -- the platform isn't consistent in its moderation efforts. But let's be clear about what platforms actually owe users: nothing. The terms of service quoted in this lawsuit make it clear Twitter has zero obligations to its users, whose accounts it can remove without cause. The guidelines may give some warning about what behavior won't be tolerated, but ultimately, users are at the mercy of the service provider.

Let's also be clear about this: Section 230 immunity does not make this situation worse. It actually allows more people to use these services, rather than fewer. Without this immunity, we wouldn't be seeing a trickle of stupid lawsuits trying to drag the government into platform moderation. We would see a steady stream of litigation that would only encourage swifter removals for less cause and a stifling of speech of all varieties across all platforms.