By Tim Cushing
Suing private companies over their alleged trampling of First Amendment rights is rarely going to go anywhere. That’s not stopping people from trying. Again and again and again. Some of these plaintiffs aren’t even represented by Larry Klayman.
Like this guy, Robert Eugene Wilson, who sued Twitter for deleting his accounts. Wilson represented himself, arguing… well, it’s perhaps best to quote directly from the dismissal [PDF]. (via Eric Goldman)
Plaintiff, Robert Eugene Wilson (“Wilson”), filed a complaint in this Court on January 23, 2020. (ECF No. 2). In the complaint, Wilson assets that Defendant, Twitter, Inc., (“Twitter”), “has on more than 2 times = 3 times [sic] closed my account based on my freedom of speech and or heterosexual expressions, and or whatever excuses.”
Ah, the 28th Amendment: Congress shall make no law abridging expressive heterosexuality. Of course, Twitter isn’t Congress and “heterosexual expression” — while protected by the First Amendment — isn’t going to turn Twitter into a government body, no matter how incensed the plaintiff is about their revoked Twitter privileges.
Having been deleted once, Wilson tried to create more accounts, three of which were deleted by Twitter before he could create any tweets. The status of the fourth account Wilson created is not listed in the record, but it was apparently deployed to send an “all Caps” tweet to Twitter telling the company “You will not get this account back!”
The deletion of three accounts and the subsequent damage to Wilson’s expressions of “heterosexuality and Christian affiliation” allegedly violated the First Amendment, the 1866 Civil Rights Act, and the 1964 Civil Rights Act to the tune of $50 million. Twitter’s actions also apparently harmed Wilson’s relationship with his neighbors, who were apparently “disturbed” by his “angry outbursts.”
In addition to $50 million for rights violations, Wilson asked for $250 million in damages related to Twitter’s deletion of his multiple accounts, the first of which graced the platform with this stellar content:
Wilson describes the nature of this content which included “insults” against public figures such as “Oprah Winfrey/Gayle King/President Obama/Sunny Hostin/Michelle Obama and many more insulted.” Wilson also objects to the suspension of his account based on “insults” he levied against “homosexuality” in general. These insults included the terms “‘gayness/Homos/Fagots [sic]/Dykes/Low Down Bi-Bisexuals [sic]/Queer Dogs/Trans Mutants.’”
Wilson also demanded at least half of his requested damages be immediately paid because Twitter’s legal reps had the temerity to call him and ask if he was represented by counsel to determine where case materials should be sent.
Wilson asserts that this amounts to “total deception and ‘legal abuse.’” Wilson believes that counsel for Twitter only asked if Wilson was represented by counsel so that they could present a motion to dismiss with “frivolous case references.” Wilson objects to counsel for Twitter’s “‘snake in tall weeds’ tactic” and asks that this Court deny Twitter’s “elementary ‘Motion to Dismiss.’”
All of Wilson’s arguments fail. The First Amendment does not govern the moderation efforts of private companies.
Beyond generalized assertions that Twitter’s motion to dismiss contains “frivolous case references” and amounts to “legal abuse,” Wilson does not address Twitter’s assertion that, as a private entity, it is not constrained by the First Amendment. Even if Wilson were to argue that Twitter is subject to the First Amendment under the state-action doctrine, such an argument would fail. While Twitter no doubt provides a valuable public forum, one in which millions of users, including the President of the United States, participate in wide-ranging public discourse, this alone is insufficient to establish that Twitter is a state actor.
So does Wilson’s allegation that Twitter discriminated against him because of his race… which he might possibly believe is “heterosexual.”
Wilson is clearly unable to state a plausible claim for relief under this section as he does not allege that Twitter discriminated against him due to his race. Wilson states his belief that Twitter was biased against him because of his statements in favor of “heterosexuality,” as well as his adherence to Christian beliefs, however, nowhere in his complaint does Wilson provide any facts that could conceivably suggest Twitter discriminated against him due to his race. In fact, it is not apparent from Wilson’s complaint whether Twitter was even aware of Wilson’s race, much less that the decision to suspend his account was based on such knowledge.
Wilson’s theory about being discriminated against for his chosen religion fares no better:
The facts contained in Wilson’s complaint simply do not lay out a plausible factual claim that Twitter’s actions in suspending his accounts were motivated by religious animus, rather than representing Twitter’s neutral enforcement of its rules prohibiting harassment on its platform. In other words, assuming that Wilson’s assertion he was compelled to create tweets denigrating homosexuality and its practitioners because of a sincerely held religious belief is true, and assuming that his account was suspended due to the content of those tweets is also true, he has not successfully established that Twitter targeted him because of his religious beliefs, rather than because of the content of the tweets themselves.
And Section 230 finishes Wilson’s lawsuit off:
Wilson is clearly attempting to hold Twitter liable as a publisher or speaker. The Fourth Circuit has recognized that §230 intended to immunize interactive computer service providers where they exercised “a publisher’s traditional editorial functions” while hosting the content of others. Zeran, 129 F.3d at 330. This includes “deciding whether to publish, withdraw, postpone or alter content.” Wilson seeks to hold Twitter liable for its decision to delete his posts and terminate (or withdraw) his account. As Twitter’s decision to suspend Wilson’s accounts, based on tweets that reportedly used derogatory slurs for homosexuality, was reached in the course of a traditional editorial function—namely deciding what type of content to publish—Wilson’s claim is precluded by application of §230(c)(1) of the CDA.
Wilson’s complaint is dismissed with prejudice. Wilson advanced some seriously dubious legal theories — something that’s perhaps expected from non-lawyer plaintiffs that represent themselves. But it might be one others find useful, especially if they’re more concerned with scoring political points than actually winning lawsuits. Here’s Eric Goldman’s take on Wilson’s attempt to claim Twitter engaged in religious discrimination.
Yes, Wilson appears to be arguing that Twitter discriminated against him because he’s a Christian heterosexual–a potentially mockable position in light of the many ways online systems implicitly privilege people with such characteristics. This case might be part of a longer-term trend where “conservatives” counter-intuitively attempt to weaponize civil rights laws to perpetuate majority privilege.
This isn’t too far removed from the constant claims from the political party in power that social media companies discriminate against “conservatives” and Republicans — a demographic largely composed of white Christians. It’s a historically-protected group that insists on playing the victim. Fortunately, Section 230 is still alive and (mostly) well, making most legal action along these lines untenable.