group of free-speech lawyers filed the most serious legal challenge yet
to Twitter’s censorship policies Tuesday in San Francisco County
Superior Court, seeking a ruling preventing Twitter from banning users
purely on the basis of their views and political associations.
29-page complaint contends that,
under a California legal doctrine that recognizes some private
facilities as “public forums,” Twitter may not discriminate against
speech on their platform based purely on viewpoint. If successful, it
would be the first extension of that doctrine to internet social media
platforms and could transform the way free speech is treated online. The
suit became all the more relevant Wednesday as Twitter stood accused
of locking out thousands of conservatives under the guise of cracking
down on “Russian bots.”
genesis of the suit is Twitter’s November 2017 announcement that they
would start banning
and sanctioning users based on their offline behavior and associations.
On December 18, 2017, Twitter, five years after their top British
executive described the company as “the
free speech wing of the free speech party,” made
good on this threat, “purging”
hundreds of mostly right-wing users. Twitter’s new policy refers to
association with “violent extremist
groups,” and a company blog post claimed, “If an account’s
profile information includes a violent threat or multiple slurs,
epithets, racist or sexist tropes, incites fear, or reduces someone to
less than human, it will be permanently suspended.”
of those purged is Jared Taylor, founder and editor of “American
Renaissance,” a fringe-right journal on race and immigration. He is
frequently described as an “extremist” and a “white supremacist” by
left-wing groups like the Southern Poverty Law Center (SPLC) and the
Anti-Defamation League (ADL), the latter of which sits on Twitter’s
“Trust and Safety Council,” the largely leftist group of activists and
non-profits Twitter assembled in
2016 to help decide which speech to censor.
is a graduate of Yale University and Paris’s Sciences Po, the former
West Coast editor of PC
Magazine, and author of several books. He describes himself as a
“white advocate” or “race realist” and condemns Nazism and antisemitism.
to the complaint, in his more than six years on Twitter, Taylor never
made threats, harassed anyone, or otherwise came under scrutiny for his
behavior on the platform. Even the SPLC notes Taylor “scrupulously
avoided racist epithets [and] employed the language
journals” in his writings, and Taylor once wrote an article urging
people to be more civil on Twitter.
the complaint puts it:
Taylor has always expressed his views with respect and civility
towards those who disagree. He has never engaged in vituperation or
name-calling, on Twitter or elsewhere.
Mr. Taylor nor American Renaissance has ever promoted or advocated
violence, on Twitter or anywhere else. Indeed, they have urged their
followers to maintain a dignified and respectful tone towards those
who disagree with them. Neither Mr. Taylor nor American Renaissance is
affiliated with any groups that promote or practice violence.
no time did either Mr. Taylor’s or American Renaissance’s accounts
engage in “trolling,” insults, or harassment, nor did they ever
encourage anyone else to do such thing
both Taylor’s personal account and that of American Renaissance were
permanently banned. The only explanation Twitter gave was that the
accounts were “affiliated with a violent extremist group.” Twitter
refused to offer Taylor any further details including which “violent
extremist group” he was affiliated.
Taylor in his effort to be reinstated to Twitter are Michigan State
University Law professor Dr. Adam Candeub and Washington, DC, attorney
Noah Peters, with Nevada free speech lawyer Marc Rondazza acting as
local counsel. Peters spoke with Breitbart News about his complaint.
you’re the functional equivalent of a traditional public forum … even
the private company that owns it can’t prohibit common expressive
activities completely … they can’t selectively kick people out and allow
certain people to speak and not others,” Peters explained of
California’s unique privately owned public forum doctrine.
grows out of a 1979 California Supreme Court interpretation of the
California Constitution’s version of the First Amendment, Robin
Shopping Center, that held private owners could not prevent speech
on their property when it functions like a traditional public venue for
speech. “The classic examples are sidewalks, parks, and, in the case of Pruneyard, a
shopping mall, a railroad terminal, probably an airport terminal, but
that hasn’t been squarely decided,” Peters explained.
crux of their lawsuit is that, in the 21st Century, social media
platforms are the most natural “public forums” in which people exchange
ideas, and that the Pruneyard Doctrine
ought to be extended to prevent viewpoint discrimination and arbitrary
restrictions on speech on these privately owned websites. Peters
explained to Breitbart News the 1970s California Supreme Court’s
reasoning in creating the doctrine. It focused on the importance of
public drives for signatures to the referendum process in California,
worrying that if the privately owned public places where people
congregate were closed off to flyering and signature collectors, it
could do serious harm to the functioning of the political system.
put it as follows:
of those concerns are much more amplified on Twitter. It’s become the
premiere forum for politicians and government agencies to communicate
with people. People are holding constituent meetings, town halls – and
Twitter is encouraging this. It also provides an unprecedented level
of access to politicians, direct access to journalists … it would be
very difficult to become a public figure or to engage in political
debate if you’re not on Twitter.
candidate for public office – virtually – has a Twitter. These are
circumstances that were unknown to the Pruneyard court back in 1979,
but this is what they were aiming at on steroids. Twitter is the
modern public square.
the complaint points out, the U.S. Supreme Court called internet
social media the “modern public square” last year in an 8-0 decision
holding a law that made it a felony for sex offenders to use social
media after their release violated the First Amendment.
News asked Peters about the likely objection from laissez
faire types that Twitter is a private company
and should be able to do as it likes with its platform. “This affects
interests that are so much larger than property rights – the ability to
participate meaningfully in Democracy, to be able to speak without
censorship – which are really fundamental basic rights,” he replied.
was quick to draw a distinction between so-called “time-place-manner”
restrictions on speech, which he freely admits Twitter has a right to
enforce, and viewpoint discrimination, which is challenging. “In this
lawsuit we don’t say that free expression means you have the right to
harass and threaten people, and to be disrespectful, or to use obscene
language, or to post obscene things,” he tells Breitbart News. “What
they can’t do – and what’s really inimical to free speech – is kicking
people off because of their perceived off-platform affiliations and
because of their viewpoints.”
News asked why Taylor, a man often reviled as a racist, would serve as
the test case. “The issue in the lawsuit is not whether Taylor himself’s
views are right or wrong, or really anything to do with his views. The
issue here is the larger principle of internet censorship and internet
free speech,” Peters replied.
every First Amendment case, the plaintiff – the person who’s complaining
– is an unpopular figure. You have communists, draft-dodgers, Jehovah’s
Witnesses, more recently you had Fred Phelps of the Westboro Baptist
Church,” Peters said, referencing the plaintiffs in the most famous free
speech cases of the last 100 years. “Even every authoritarian country,
you can always be praising whoever’s in charge. You can always write
things that flatter their policies. That doesn’t mean you have freedom
of speech. Freedom of speech only matters when it protects viewpoints
that we don’t like, that are controversial.”
does not start with silencing mainstream figures, Peters argues, but
those on fringes:
is not going to make Donald Trump the test case. They’re not going to
make Chuck Schumer the test case. They’re not going to make someone
who’s popular the test case. It never works that way. It’s always
people who are on the fringes, who are widely hated, who are the ones
who need the protection of the First Amendment. Jared Taylor’s views
are controversial. That’s exactly why we have to make sure he has the
right to express those views.
guiding principle of our First Amendment jurisprudence is that we
protect the thought we hate,” Peters continued, paraphrasing Supreme
Court Justice Oliver Wendell Holmes Jr., the jurist who more than any
other cemented our modern understanding of free speech.
lawsuit also alleges Twitter is violating California’s Unruh Civil
Rights Act that prohibits discrimination on the basis of political
beliefs and brings a breach of contract claim on the basis of
advertising purchases Taylor made with Twitter to build his follower
base only to be banned without compensation.
recent controversies, allegedly punishing more mainstream conservatives,
makes Peters’s contention that what starts with Taylor doesn’t end with
him look prescient. Wednesday’s #TwitterLockout is
only the latest in a long time of scandals involving Twitter’s
disfavoring of right-leaning speech. A former Twitter employee told Breitbart
News, “It wasn’t a mistake. They defined Trump supporters as bots. The
only reason they are backpedaling is [because] they got caught.”
undercover reporting appears to confirm years
of complaints from conservatives about mistreatment, including
“shadow-banning” and unfair suspension because of liberal bias at the
Silicon Valley giant. From this, it can be inferred that if Taylor’s
lawsuit reaches discovery and his lawyers are allowed to obtain internal
Twitter documents on his banning, it may transform our understanding of
how Twitter disfavors the Right online.
Taylor prevails in the California court system and successfully expands
the Pruneyard Doctrine
to Silicon Valley’s social media companies, it could entirely upend the
meaning of free speech on the internet and give the — mostly
conservative — voices that feel they are being silenced a cause of
action against the overwhelmingly leftist and increasingly intolerant big
News contacted a Twitter representative for a comment on Candeub,
Randazza, and Peters’s lawsuit but received no reply.
case is Taylor
v. Twitter, CGC-18-564460 in San Francisco County Superior Court.