Can Twitter ban gay people because they're gay if it likes? Or women? Or black people? Twitter thinks so.

Some of you have asked about why Berenson v. Twitter matters and why I am spending time on it instead of focusing on vaccines, mandates, and other news.

I promise a full answer soon.

But here’s part of the reason. Here’s how the world’s most important platform for journalism ACTUALLY sees itself, its rights, and its obligations to permit free speech.

The following transcript is from a hearing in the Superior Court of San Francisco in June 2018 on a case called Taylor v. Twitter. Six months before, Twitter had barred a white supremacist named Jared Taylor (can we please not argue if he is a white supremacist? It’s irrelevant to this discussion).

Taylor filed a complaint in California state court. Among other claims, he alleged unfair competition - that Twitter’s terms of service were unconscionable and its business practices fraudulent because it promised users the opportunity to speak freely but did not.

To the obvious surprise of Twitter’s attorneys, Judge Harold E. Kahn showed sympathy to Taylor’s arguments (as opposed to sympathy to Taylor and his views - which is, or at least used to be, the point of having freedom of speech).

At the hearing, Kahn put Twitter’s lawyers to the test. Could Twitter ban gay people, or women, or African-Americans, if it chose?

KAHN: Does Twitter have the right to take somebody off its platform if -- it does so because it doesn't like the fact that the person is a woman? Or gay? Or would be in violation of Title 7? Or would be in violation of the age discrimination laws, or the disability discrimination laws?

Kahn was so certain the question had only one response that he actually answered it himself:

Of course not.

But after a short back-and-forth, Twitter’s lawyer Patrick Carome told the judge he was wrong.

Twitter might call itself a “public square” - as Jack Dorsey would say under oath in Congressional testimony three months later. In reality it had every right to ban a black person, or a woman, or anyone else it liked, for any reason, or no reason at all.

CAROME: And, in fact, as to Your Honor's question about could a First Amendment speaker choose by gender, or age, or something like that, in fact -- I mean Twitter would never, ever, ever do that; it's totally contrary to everything it does… [But] does the First Amendment provide that protection? Absolutely it does.

Okay then.

Carome is no first-year associate who misspoke under pressure. His biography describes him as "the nation’s preeminent advocate in litigation concerning Section 230 of the Communications Decency Act, the federal law that shields operators of online platforms from liability pertaining to publishing third-party content.” He is one of the lawyers helping defend Twitter from Donald Trump’s lawsuit against it.

This is Twitter’s view of its rights.

Are you okay with that? Should anyone be?

Transcript here

By the way: After Judge Kahn allowed Taylor to pursue his claim of unfair competition, Twitter was so frightened about what might happen next that it appealed directly to the California Supreme Court - which then, without allowing Taylor’s attorneys to present arguments, issued a six-page ruling telling Kahn to reverse his ruling and dismiss the case.

True story.

Added bonus: Twitter argues that allowing me to make factually accurate tweets about Covid might upset the community, or something.

Meanwhile, right now on Twitter, you can watch a woman in New York get her head crushed by an SUV, as almost 600,000 people have in the last two days. (Be careful with this, it is awful.)

Snuff (or almost snuff) films? Sure.

Reporting Pfizer’s own clinical trial data? Not so much.

Find someone who loves you as much as Twitter loves its view of its Section 230 protection.

Stand with me. Stand against censorship.