A Legal Analysis of Murphy v. Twitter
A Case That Could Change the Narrative on Social Media Terms of Service
Earlier this week, a feminist from Canada sued Twitter in San Francisco. The lawsuit is limited in scope and thoroughly pled.
The lawsuit brings three causes of action against Twitter for breach of contract, promissory estoppel, and violation of California’s Unfair Competition Law (UCL). There is a lot to unpack and a fair amount of translating to do. The case is important because it seeks to hold a social media platform to its agreements with the user and its promises to the public. The suit avoids many of the problems that plague prior cases, including:
- Alleging violations of the First Amendment or the user’s free speech rights. Platforms are private companies, not government actors. The First Amendment applies only to conduct by the government. Thus, the government cannot generally force platforms to remove speech based on the content nor can the government establish standards by which platforms are to judge the propriety of content.
- Arguing that platforms are “public forums” and should be subject to the First Amendment’s Free Speech clause. The Supreme Court has strictly limited what qualifies as a “public forum” to include only private towns or cities operating with apparent municipal authority.
- Arguing that Section 230 does not apply. This may be for a few reasons. Some argue that platforms “publish” content, likening social media to newspapers, and thus should not receive the protections of Section 230. This is wrong because most platforms merely filter content or curate content that others have created. They are not like newspapers, which maintain vast staffs for the purpose of creating content such as articles, opinion pages, comics, and so on. Some argue that Section 230 requires platforms to be viewpoint neutral. There is nothing in Section 230 demanding political neutrality. Period. Section 230 provides platforms the ability to filter content. The original purpose, by the plain text of the statute, was to encourage platforms to remove objectionable content such as child pornography or graphic violence.
This article is lengthy, due to the details included in the complaint. It is challenging to explain the importance of the suit both without providing those details and translating the causes of action from legal nomenclature. Because of this, the article is divided into a few distinct parts, including the alleged facts, Twitter’s agreement and public representations, the causes of action, and finally the application—why the case is so important.
Murphy v. Twitter – Alleged Facts
Ms. Murphy is a feminist from Canada. She posted tweets critical of a transgendered woman, referring to the individual using masculine pronouns. According to the lawsuit, in October 2018, Ms. Murphy posted other tweets stating, “Men aren’t women” and asking “How are transwomen not men? What is the difference between a man and a transwoman?”
Twitter locked Ms. Murphy’s account and demanded that she delete these tweets in mid-November 2018, claiming that the tweets “violated its Hateful Conduct Policy” by “misgender[ing]” another user. Twitter insisted Ms. Murphy violated the policy even though the individual in question still self-ascribed masculine pronouns.
Prior to Twitter locking the account, Ms. Murphy posted additional tweets critical of the individual on November 8, 2018. Based on those tweets, and after Ms. Murphy deleted the tweets referenced in the previous paragraph, Twitter permanently banned her account.
Sometime between when Ms. Murphy posted the tweets and when Twitter reached out to her regarding violations of the “Hateful Conduct Policy,” the complaint alleges that the company secretly modified it to include “misgendering or deadnaming of transgender individuals.”
Ms. Murphy understands the dark side of social media. Because of her views, she has received numerous threats. These threats advocate or threaten physical violence. They attack her because of her gender and much more. The complaint alleges that Twitter failed to act or failed to take action in a timely manner relating to the threats against Ms. Murphy.
Twitter’s User Agreement and Public Representations
Twitter’s User Agreement and other, incorporate documents are key to the suit. According to the complaint:
- The User Agreement incorporated the “Terms of Service, Rules, and associated policies”, meaning that the documents, aggregated formed the full “contract” between the company and the user;
- Twitter promised that no changes would be retroactive;
- The company promised to “send an email notification to the violator identifying the Tweet(s) in violation [of Twitter’s rules] and which policies have been violated” when demanding a user delete a tweet;
- The company provided a process for permanently suspending an account, including notice to the user regarding “abuse violations” explaining “which policy or policies” have been “violated and which content was in violation”;
- Twitter promised that it would provide at least 30 days’ notice for any change to the agreement and 30 days’ notice prior to suspending an account;
- When Ms. Murphy created an account, Twitter listed only limited grounds upon which it may censor content such as impersonation, trademark violations, privacy, violence and threats, and other similar grounds;
- Twitter adopted a “Hateful Conduct Policy” in late 2015, which barred users from “promot[ing] violence against or directly attack[ing] or threaten[ing] other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or disease…”; and
- The company modified its “Hateful Conduct Policy” in late 2017 to prohibit “behavior that harasses, intimidates, or uses fear to silence another person’s voice.” The modified Policy listed examples of improper conduct, such as violent threats, expressing wishes for physical harm or death, behavior that incites fear about a protected group, and so on.
Twitter held, and to a degree still holds, itself out as an open forum for discussion. The complaint lists several public-facing representations such as:
- Testimony from Twitter CEO Jack Dorsey to the U.S. House Committee on Energy and Commerce, where he stated that “We don’t consider political viewpoints, perspectives, or party affiliation in any of our policies or enforcement decisions, period… Our policies and our algorithms don’t take into consideration any affiliation, philosophy, or viewpoint”;
- Listing its mission as “giv[ing] everyone the power to create and share ideas instantly without barriers. Our business and revenue will always follow that mission in ways that improve – and do not detract from – a free and global conversation”; and
- Within its “Safety” page, the company claimed to stand for various principles including that it “stands for freedom of expression for everyone” and that it does “not take sides. We show sides. Every side” and “we treat everyone equally: the same Twitter Rules apply to all.”
Causes of Action
The complaint lists three causes of action, or grounds for relief in courts.
- Breach of Contract. Twitter and its users have an Agreement. In exchange for access to the platform, the user makes certain concessions, such as following Twitter’s rules. In exchange for the user’s business and content, Twitter agrees both to post the content and to conduct itself in a certain way.
The suit alleges that Twitter failed to keep up its end of the bargain by, among other things, failing to provide Ms. Murphy, or any user, the required notice “of the sweeping changes to its Hateful Conduct Policy” including changes to the “misgendering provision.” The complaint also alleges that Twitter violated the User Agreement when it suspended Ms. Murphy’s account without notice and without properly explaining “which policy or policies [she] violated and which content was in violation.”
- Promissory Estoppel. Promissory estoppel is a theory, or doctrine, that a party “may recover on the basis of a promise made when the party’s reliance on that promise was reasonable, and the party attempting to recover detrimentally relied on the promise.” The lawsuit notes that Twitter made several promises, most of which were listed previously. Some of these promises include not changing the Agreement or terms of service without 30 days’ advance notice and that no changes in the terms of service would be applied retroactively.
The complaint alleges that Ms. Murphy, and many others, relied on these promises and that they would likely not have joined Twitter if they knew the company would “engage in viewpoint-based censorship of their views.”
The argument, again, is that Twitter has the right to host whatever content it wants, but that the company also made promises to the consumers it failed to keep. And further, that the company made specific promises to persuade people to create accounts and then reneged on those promises. A cause of action for promissory estoppel seeks a court order forcing Twitter to honor the promises made to users.
- California’s Unfair Competition Law. California laws prohibit “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” This cause of action references a couple, distinct acts. First, it alleges that Twitter inserted unconscionable provisions into the Terms of Service, and thus the User Agreement.
Unconscionable is a legal term-of-art meaning a contract “that is so one-sided that it is unfair to one party; [i]t is a type of contract that leave one party with no real, meaningful choice.” According to the complaint, Twitter added one-sided terms “allowing it to suspend or ban accounts ‘at any time for any reason.’”
The second distinct violation of the UCL is Twitter’s alleged and repeated misrepresentations. Those misrepresentations were listed above, but include Mr. Dorsey’s testimony to Congress, Twitter’s mission statement and its promise that “any changes [to the Terms of Service] ‘will not be retroactive.’”
If a court agrees with Ms. Murphy, under the UCL, it may fashion very specific relief, such as an injunction. In the complaint, Ms. Murphy asks the court to declare that Twitter has falsely advertised its services and to prevent the company from, among other things, “attempting to enforce changes to its User Agreement retroactively” and “requiring users to delete Tweets without first notifying the user of what rule of policy the Tweet allegedly violates.”
Import of the Case
Rather than focusing on claims of Free Speech or other discretionary actions that may be protected by Section 230 of the Communications Decency Act, the case focuses on Twitter’s conduct. The complaint asks a court to enforce the User Agreement and Terms of Service and hold Twitter accountable for its representations to the public. The suit asks some essential questions such as,
- Whether a social media platform’s User Agreement or Terms of Service mean anything; that is to say, whether a user who has been harmed by violations of the Agreement may force a company to adhere to its own terms in a court of law;
- Whether Twitter can attempt to unilaterally change its Agreements after (1) Promising no changes will be retroactive; (2) Promising no changes will be made without 30-days prior notice; and (3) without providing an opportunity for users either to object or stop using the platform;
- Whether it is unconscionable for a platform to unilaterally change its terms of service without providing users the opportunity to negotiate or otherwise reject them;
- Whether it is unconscionable for Twitter to change its Terms of service giving it the unilateral “right to suspend or ban an account ‘at any time for any or no reason,’” especially without providing users the required notice prior to making such changes;
- Whether social media platforms, including Twitter, can make representations to Congress and the public only to then act in manners inconsistent with those representations.
- For purposes of public representations, deceptive trade practices and promissory estoppel, whether a platform company is a forum for users to express their beliefs or whether it is a platform only for those opinions held by company leadership, or even somewhere between the two extremes.
- For purposes of deceptive trade practices and breach of contract, whether the pronouns used to refer to people is “political speech.” Or, more appropriately, whether barring the use of certain pronouns in specific situations is either viewpoint discrimination or discriminating based on philosophy or political perspective.
The attorneys for Ms. Murphy have made a very interesting case. The suit avoids many of the pitfalls prior suits against social media platforms have fallen into. Policy makers and technology policy analysts should follow this case closely to see what evidence the plaintiff may discover and what legal standards may emerge from the California courts.