Berenson v Twitter: Twitter tells on itself
The little bird’s lawyers play fast ‘n loose in their newest brief; did they think we wouldn’t notice?
Twitter filed its newest motion in Berenson v Twitter last week, and it’s… interesting.
Twitter is playing games in the motion that I wouldn’t have expected. It doesn’t want to argue the facts. It says essentially nothing about whether the tweets for which it suspended me actually violated its terms in any meaningful way.
Instead it is falling back on the we-can-do-what-we-want defense. But here’s where the lil bird’s legal life gets tricky.
California law and the California constitution are very clear that large private entities CANNOT do whatever they want when it comes to free speech. Twitter is based in California. California law is a problem for Twitter.
Twitter’s answer is to come VERY close to misstating previous California court decisions. See for yourself:
See the second sentence, the one that starts “Pruneyard applies only to real properties…”
and then includes a quotation? Pruneyard is a seminal 1979 case in which the California Supreme Court said California’s free speech protections - which are VERY strong - applied to shopping malls and other large private entities.
Now from the way that sentence is written, the quotation would appear to come from the Pruneyard decision. BUT IT DOES NOT. (It comes from a 1982 California decision called Laguna Publishing, which is also quite unfavorable to Twitter because it said that even gated communities that restricted entry could not discriminate against speech on the basis of viewpoint. Allow one newsletter, allow them all.)
Pruneyard doesn’t say properties have to have the attributes of a municipality to be subject to California free speech protection. Neither does a 2007 decision that involved another shopping mall. And in 2019, a California court actually extended Pruneyard protection to a PARKING LOT.
Not a municipality:
These are not the kind of games you play when you are confident the law is on your side.
And that sentence is not the only place Twitter plays very loose with precedents. I’m not going to go into the others - our hearing on the case is in just over two weeks, and we will keep our powder dry until then. But rest assured, we will make sure Judge Alsup knows about all about them…
See you soon, lil bird!
Stand for free speech: