• by Wendy Davis  @wendyndavis, April 16, 2019

Firing back at Canadian journalist Meghan Murphy, Twitter says it had the right to suspend her from its platform for violating a company policy against "hateful conduct" by “misgendering” -- or referring to transgender individuals by their biological gender at birth.

“This is not a case of [Twitter] discriminating against her 'political viewpoint,'” Twitter argues in papers filed last week with San Francisco Superior Court Judge Ethan Schulman. “This case instead is about harassment targeted at specific individuals on the Twitter platform on the basis of their gender identity.”

The company's papers come in response to a lawsuit filed in February by Murphy, who alleged in a class-action complaint that her ban amounts to a breach of contract between Twitter and users like herself. Murphy alleged that she was permanently banned by Twitter last November, after referring to a transgender woman as a man. She argued that this decision went against Twitter executives' well-publicized prior statements characterizing the state as “the free speech wing of the free speech party.”

“Twitter’s repeated representations that it would uphold the free speech rights of its users and not censor user speech were material to the decision of millions of users, like Murphy, to join,” Murphy argued in her court papers.

Twitter is now asking Schulman to throw out the case at an early stage for several reasons, including that it has a First Amendment right to decide what content to allow on its platform.

“A private sector communication platform's decision to decline to post content is protected expressive activity,” Twitter writes in a motion to strike the complaint under California's anti-SLAPP (strategic litigation against public participation) law. That law, which aims to protect free speech about matters of public importance, provides for quick dismissals of some lawsuits.

The company adds that Murphy's claims “arise from -- and seek to both undo and prevent” Twitter's attempt to combat online harassment. “Such claims impermissibly target a quintessential editorial judgment protected by the First Amendment,” Twitter argues.

The platform also says its decisions about who to ban are protected by Section 230 of the Communications Decency Act, which immunizes online platforms from decisions to post or block content.

In addition, Twitter says Murphy's court papers don't support her contention that Twitter violated its contract with her.

Among other allegations, Murphy said in her complaint that Twitter only banned misgendering last October, and didn't give her 30 days' advance notice of the changes. (Twitter's terms of service say the company will notify users about some revisions at least 30 days before they take effect.)

Twitter counters that even though it added “targeted misgendering” in October to a list of examples of speech that violate its “hateful conduct policy,” the company has long prohibited harassment based on gender identity.

“The policy does not, could not, and has never attempted to take on the Herculean task of listing every conceivable way in which one person might harass another on the Twitter platform,” it argues. “Instead, given the myriad forms that harassment can take online the policy sets forth broad standards prohibiting harassment base don a list of protected characteristics.”

Twitter adds that its terms of service also give it the right to suspend users at any time.

The case is currently scheduled for a May 7 hearing in front of Schulman.

Twitter recently prevailed in two similar battles. Most recently, a state appellate court in California ruled last August that white nationalist Jared Taylor couldn't proceed with a lawsuit alleging that he was wrongly banned from Twitter. The judges in that matter said the federal Communications Decency Act protects Twitter from lawsuits over decisions about what content to allow on the service.