A little more about Berenson v. Twitter

For those of you who care about the details, but not enough to read the complaint

So over on Twitter, one of America’s Finest Legal Scholars (TM) is taking time out from his busy practice to rebut the complaint pro malo.

He must have a lot to do because he’s spent most of the last day on this; I wonder which client he’s billing, or if he’s “between clients” at the moment. Anyway, you can tell he’s a serious guy because he throws up memes with every tweet! Just like Brandeis.

What’s fascinating is that despite his endless tweets, he somehow has not managed to grasp one of the core arguments - simple in theory, though complex in its details - that the complaint raises.

For those of you who have neither the time nor the inclination to wade through the argument, it goes like this:

1. Twitter is indisputably a messenger service. A longstanding California law regulates messenger services as “common carriers.” This means that they must accept all messages they receive. Twitter thus must accept all tweets it receives. It has no First Amendment rights to refuse them on the basis that it does not agree with them.

2. A federal law commonly called Section 230 “preempts” the California law, giving Twitter the right to reject tweets or ban users. (Whether that right is universal or whether Twitter must act in “good faith” in restricting service is a separate question; whether Twitter acted in “good faith” in this case is still another question. But put those issues aside for the moment.)

3. Section 230 is what enables Twitter to claim a First Amendment privilege that supersedes the California law and restrict my own First Amendment right to speak; thus federal courts have the right to review 230 on First Amendment grounds. Eugene Volokh, who is a top constitutional scholar, was among the first people to raise this possibility. If you want to know more about about the argument, you can find it here: https://reason.com/volokh/2021/01/23/might-federal-preemption-of-speech-protective-state-laws-violate-the-first-amendment/

4. Defenders of Twitter and other social media behemoths have successfully confused courts and lawmakers about the distinction between Twitter the company and Twitter the platform. Under the First Amendment, Twitter the company is of course free to say whatever it likes - on its platform, in ads, through lobbyists, or anywhere else.

5. But Twitter the platform should be open to all under California law; and even if the courts find that Section 230’s preemption of California law is consistent with the First Amendment and allows Twitter the company to set rules on who can use the platform, those rules cannot be completely arbitrary or discriminatory.

6. Twitter itself acknowledges this fact in explaining its rules, and acknowledged it further in creating its “five-strike” policy around Covid-19 “misinformation.” Twitter is legally liable for failing to follow its own rules and contractual obligations in my case.

7. The complaint has many other factual and legal arguments; I’m not going to go into them here. I am also not going to pull back even further and walk through exactly why the Section 230 as it has been interpreted is so dangerous - that’s an broader argument that belongs in an op-ed for a major newspaper (in the unlikely event they’ll have me). But I hope this helps everyone understand the complaint a little better.