Why the Berenson v Twitter settlement may open the door to claims from other banned users

Did Twitter just accidentally put other suspended users on notice that its strike and ban policies modify its terms of service? Oopsie!

I can’t talk about my settlement with Twitter beyond yesterday’s three-sentence statement. I take that obligation seriously. My lips are sealed.

But I can talk about what the settlement may mean.

To recap: I sued Twitter in December in federal court in San Francisco, Twitter’s preferred venue. In April federal Judge William Alsup rejected Twitter’s motion to dismiss the suit, allowing my breach of contract and promissory estoppel (basically that I had relied on Twitter’s words to my detriment) claims to proceed.

Now Twitter and I have settled the case, and Twitter has reinstated me as a user and acknowledged its error. It told Fox News that my tweets “should not have led to his suspension” last year.

Okay, but why? Why did Berenson v Twitter survive a motion to dismiss when judges have thrown out so many other similar lawsuits? Courts have generally agreed that Section 230 of the Communications Decency Act and the terms of service that social media companies impose on users give them an absolute right to ban users.

In fact, Judge Alsup agreed Section 230 barred some of my broader claims. But his April 29 ruling offered two linked rationales for allowing the breach of contract and promissory claims to move ahead.

The first was that a Twitter executive had repeatedly emailed specifically to me to discuss my tweets and Twitter’s view of them. Obviously, those facts apply only to my case (as far as I know - I have not seen similar emails or communications mentioned in other ban lawsuits).

That fact has led some legal experts (generally the same legal experts who said my case had no chance either) to argue that the circumstances of my lawsuit are unique.

Not so fast. Alsup’s ruling offered a second explanation too - that I had plausibly argued that Twitter had begun the process of modifying its terms of service when it set up its five-strike Covid misinformation policy.

“Plaintiff plausibly avers that Twitter's conduct here modified its contract with plaintiff and then breached that contract by failing to abide by its own five-strike policy and its specific commitments set forth through its vice president." (From the ruling, emphasis added.)

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In other words, if Twitter's position is that it can ban anyone for any reason, fine. Section 230 - at least as it is now interpreted - allows that discretion. But once Twitter or any social media company voluntarily sets and disseminates guidelines that it says it will follow in disciplining or banning users, it must follow those, even if its underlying terms of service explicitly say otherwise.

This isn’t only my view: Alsup himself made just this point at the April 28 hearing when he heard verbal arguments on the motion to dismiss, when he compared me to a tenant who had been evicted under the terms of a lease after a landlord had made verbal promises the landlord then ignored:

In this case, you have the terms and conditions and all those harsh conditions [in the terms of service], and then you come up with a specific policy, the five-strike policy. And he's saying he did not violate the five-strike policy. In fact, you didn't even tell him what the first strike was, and he makes a pretty decent argument. It's plausible -- it's at least plausible…

But to me, it seems unfair. It seems unfair to mislead the user with the five strikes, and we'll give you a heads up, and then pull the rug out from under them, just like you pulled the rug out from under the poor tenant.

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In other words, Alsup felt the emails from the Twitter vice president tied the knot around Twitter’s ability to ban me (or at least gave me a plausible argument), but the string was the five-strike policy itself.

Now here's the key for other banned users: in settling the case, acknowledging error, and reinstating me, Twitter seems to have inherently - and publicly - accepted this theory of its contractual obligations. Not just because of its specific representations to me. But for any user.

Twitter has acknowledged that my tweets should not have led to my suspension at that time.

In its own words, in its own public statement, the little bird admitted that the tweets themselves - the CONTENT of the tweets - mattered.

In other words, if you've been banned for Covid misinformation - or ANY specific and named violation of Twitter's policies - and you have a plausible case that your tweets did not in fact violate those polices - you may now be able to bring a breach of contract case. The more granular your argument, the more you can argue that on a factual basis your statements were correct, the better chance you will have.

Twitter and its lawyers will argue otherwise. They will argue that these are all just ban cases, and Section 230 controls them and gives Twitter the right to do what it likes.

Then again, that’s what they argued in my case too.