Tuesday, November 20, 2018

Twitter's promise of free speech isn't false advertising just because it suspends abusive users

Kimbrell v. Twitter Inc., 2018 WL 6025609, No. 18-cv-04144-PJH (N.D. Cal. Nov. 16, 2018)

Kimbrell alleged that “Twitter employs twitter trolls who are responsible for goading Twitter users who support President Donald Trump into engaging in purportedly abusive conduct, which Twitter subsequently uses as a basis for banning those pro-Trump Twitter users,” contrary to Twitter holding itself out to be a “free and open” platform.  Allegedly, she replied to a @realDonaldTrump tweet with a “history of progressive talking points and where they originated.” Twitter’s trolls allegedly targeted plaintiff, who responded with tweets that used @ (apparently to respond to other commenters in the thread) and, somewhat incoherently, called at least some of them [presumably not Trump] "loons," "F**King trolls," "idiots," "crybaby losers," and some other stuff.

Twitter then suspended her account for abusive behavior [hey, could we get that done for misogynist trolls? asking for a friend], and then made the suspension permanent for targeted abuse. Kimbrell alleged that “abuse” was defined by Twitter employees to mean tweets that “disagree[ ] with them politically ... with the ultimate goal [of] suspend[ing] every POTUS supporter by targeting their accounts.”

The allegations, which dodged 230 because they were about Twitter's own statements, didn’t make out a claim of false advertising under California law.  While Twitter’s Rules say that Twitter “believe[s] in freedom of expression and open dialogue,” that sentence goes on to say “we prohibit behavior that crosses the line into abuse[.]” “That is not likely to deceive a reasonable consumer into believing that Twitter did not retain the right to suspend users who ‘cross the line into abuse.’” Separately and independently, Kimbrell lacked standing for want of an alleged economic injury.  The same problems prevented her from stating a claim under Illinois law.

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