Twitter Defeats Lawsuit By Journalist Banned For 'Misgendering'

Twitter has prevailed in a battle with Canadian journalist Meghan Murphy, who sued the service after it banned her for “misgendering,” or referring to transgender individuals by their biological gender at birth.

San Francisco Superior Court Judge Ethan Schulman said in a ruling issued Wednesday that Twitter -- like other tech platforms -- can't be sued for decisions to “provide, deny, suspend or delete user accounts.”

Schulman based his ruling on Section 230 of the Communications Decency Act, which provides that companies like Twitter are immune from liability for decisions about how to handle content posted by users.

“California and federal courts are in accord that actions that, like the instant case, seek relief based on an internet service provider's decisions whether to publish, edit, or withdraw particular postings are barred by Section 230,” he wrote.

Murphy sued the company earlier this year, shortly after she was permanently banned for allegedly violating Twitter's “hateful conduct policy” by referring to a transgender woman as a man. She alleged in a class-action complaint brought in San Francisco Superior Court that the ban amounted to a breach of contract between Twitter and users like herself.

“Proclaiming itself 'the free speech wing of the free speech party,' Twitter has grown into an unprecedented public forum for national and global communication,” the complaint stated. “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.”

In 2011, former Twitter CEO Dick Costolo famously referred to the company as the “free speech wing of the free speech party.” Current executives have distanced themselves from that quote.

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.)

She sought an order prohibiting Twitter from enforcing its policy against misgendering, among other orders.

Schulman's ruling in favor of Twitter is hardly a first. Twitter has now prevailed in at least three different lawsuits brought by people who said they were banned.

Earlier this week, a federal judge in the Northern District of California tossed a lawsuit by former U.S. Senate candidate (and former revenge porn site operator) Craig Brittain, who sued the company for banning him.

A state appellate court in California also ruled last August that white nationalist Jared Taylor couldn't proceed with a lawsuit alleging that he was wrongly banned from Twitter. And Judge Kimberly Gaab in Fresno County, California threw out a lawsuit against Twitter by right-wing activist Charles Johnson, who was banned from the service in 2015.

While the ruling in Murphy's case joins a growing body of decisions confirming Twitter's right to control the material on its platform, the ruling also isn't likely to end the debate over tech companies' power.

Conservatives who already think Big Tech discriminates against right-wing views are likely to point to the decision as proof that Silicon Valley is too powerful. Prominent officials like Republican Texas Senator Ted Cruz and FCC Chairman Ajit Pai have repeatedly blasted Big Tech over this supposed anti-conservative bias.

Just this week, Pai repeated his talking point that tech companies are more of a threat to internet openness than broadband providers.

“The greatest threat to a free and open internet has been the unregulated Silicon Valley tech giants that do, in fact, today, decide what you see and what you don’t,” Pai said at a Senate hearing, in response to a question about the repeal of the net neutrality rules. “There’s no transparency. There’s no consumer protection.”

Pai has made these claims before. Last December, when he led the repeal of the net neutrality rules, he said that the Obama-era net neutrality rules didn't result in an "open" Internet because they didn't apply to companies like Google and Twitter, which are able to wield control over material on their platforms.

"Edge providers regularly block content that they do not like," he said in late 2017.

"What is Promoted Tweets but prioritization?" Pai asked. "How does a company decide to demonetize videos from political advocates without prior notice?"

In November of that year, he denounced Silicon Valley in a speech. "When it comes to an open Internet, Twitter is part of the problem," he said. "The company has a viewpoint and uses that viewpoint to discriminate."

Pai cited two examples: In August of 2017, Twitter briefly prevented Rep. Marsha Blackburn (R-Tennessee) from running an election video-ad that the company deemed inflammatory. (Twitter later reversed course and allowed the ad.) And in July of that year, on a day when net neutrality advocates tried to rally support for the existing rules, Twitter flagged an AT&T blog post about the issue as potential spam and prevented users from re-tweeting it. Twitter said the block was caused by a glitch.

Despite the repeated accusations, some observers say there's no proof of conservative bias.

"Lots of content gets filtered out, but no more so from the right than from the left," New York Law School professor Ari Waldman said in written testimony to Congress. "When victims of racist, homophobic, and sexist tweets and comments post those comments to call out the aggressors, it is often the victims that are suspended or banned.”

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