Berenson v. Twitter, Inc.

— 1 — — 2 — — 3 — — 4 — — 5 — 6 UNITED STATES DISTRICT COURT — 7 — NORTHERN DISTRICT OF CALIFORNIA — 8 — — 9 — 10 ALEX BERENSON, 11 Plaintiff, No. C 21-09818 WHA 12 v. 13 TWITTER, INC., ORDER RE MOTION TO DISMISS 14 Defendant. — 15 — — 16 — 17 INTRODUCTION 18 In this free speech action, defendant banned plaintiff from its social media platform after 19 he violated its five-strike COVID-19 misinformation policy. To the extent stated, defendant’s 20 motion is GRANTED IN PART and DENIED IN PART. 21 STATEMENT 22 Defendant Twitter, Inc. is a private company providing a social media platform that 23 allows its users to post short messages for public discussion. Twitter’s terms of service stated 24 at all relevant times that it could suspend user accounts for “any or no reason” (Compl. ¶¶ 15, 25 22–23, 133). 26 Plaintiff Alex Berenson is an independent journalist. As alleged in the complaint, he 27 gained notoriety through provocative statements he posted on Twitter regarding the public1 discussion for prominent public figures like Elon Musk and, as reported by the New York 2 Times, senior White House officials (id. ¶¶ 1–2, 60, 64–66). 3 As the pandemic continued and to protect the public, Twitter began crafting specific 4 community standards to limit COVID-19 misinformation on the platform. These content 5 moderation policies included takedown procedures for, e.g., ineffective treatments and false 6 diagnostic criteria, as well as measures for “labelling” information as “misleading.” The same 7 day Twitter announced its labelling policy, May 11, 2020, plaintiff tweeted his concern 8 regarding the risk of Twitter beginning to actively censor content. Hours later, Twitter’s then9 CEO Jack Dorsey began following plaintiff’s account. And later that same day, Twitter’s then10 Vice President of Global Communications, Brandon Borrman, contacted plaintiff to open a 11 direct line of communication with the company (id. ¶¶ 68–70, 73–74, 76, 80–81). When 12 Twitter adopted standards regarding misleading statements on the COVID-19 vaccines, 13 plaintiff reached out and received assurances from Vice President Borrman about how his 14 tweets would be impacted by the policy. At this point, Twitter had not removed or labeled 15 misleading any of plaintiff’s tweets (id. ¶¶ 94–97, 102–03, 106). 16 Twitter announced a five-strike policy as part of its COVID-19 misinformation 17 guidelines on March 1, 2021. Plaintiff again reached out to Vice President Borrman, who 18 replied, “I will say that your name has never come up in the discussions around these policies,” 19 and that “[i]f it does I will try to ensure you’re given a heads up before an action is taken, but I 20 am not always made aware of them before they’re executed. If something happens, please let 21 me know” (id. ¶¶ 107–10). Twitter labeled as misleading five of plaintiff’s tweets posted on 22 March 15, May 29, and May 30, although none of these actions was called a strike on 23 plaintiff’s account. Although Vice President Borrman told plaintiff that he would look into the 24 five labels, he did not respond further on the matter (id. ¶¶ 113–16). 25 On July 16, Twitter locked plaintiff’s account for the first time. Plaintiff avers this 26 constituted the second strike on his account. Twitter did not inform him what action 27 constituted the first strike. Plaintiff received his third, fourth, and fifth strikes on July 27, July 1 40, 144). Plaintiff says none of the tweets qualified as a strike under Twitter’s stated rules. 2 Vice President Borrman never advised him that he was in any trouble. Plaintiff filed this 3 action in December 2021. Twitter now moves to dismiss. This order follows full briefing and 4 oral argument. 5 ANALYSIS 6 To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient 7 factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft 8 v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 9 With the exception of the claims for breach of contract and promissory estoppel, all 10 claims in this action are barred by 47 U.S.C. Section 230 (c)(2)(A), which provides, “No 11 provider or user of an interactive computer service shall be held liable on account of -- any 12 action voluntarily taken in good faith to restrict access to or availability of material that the 13 provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, 14 harassing, or otherwise objectionable, whether or not such material is constitutionally 15 protected.” For an internet platform like Twitter, Section 230 precludes liability for removing 16 content and preventing content from being posted that the platform finds would cause its users 17 harm, such as misinformation regarding COVID-19. Plaintiff’s allegations regarding the lead18 up to his account suspension do not provide a sufficient factual underpinning for his conclusion 19 Twitter lacked good faith. Twitter constructed a robust five-strike COVID-19 misinformation 20 policy and, even if it applied those strikes in error, that alone would not show bad faith. 21 Rather, the allegations are consistent with Twitter’s good faith effort to respond to clearly 22 objectionable content posted by users on its platform. See Barnes v. Yahoo!, Inc., 570 F.3d 23 1096, 1105 (9th Cir. 2009); Domen v. Vimeo, Inc., 433 F. Supp. 3d 592 , 604 (S.D.N.Y. 2020) 24 (Judge Stewart D. Aaron). 25 With regard to breach of contract and promissory estoppel, this order reads our court of 26 appeals’ Barnes decision to allow those claims to go forward despite Section 230, so long as 27 they are properly pleaded under state law. At the hearing, Twitter emphasized Barnes’ 1 district court “must ask whether the duty that the plaintiff alleges the defendant violated 2 derives from the defendant’s status or conduct as a ‘publisher or speaker.’” Id. at 1101–02. 3 This order finds, however, that for these two claims plaintiff “does not seek to hold [Twitter] 4 liable as a publisher or speaker of third-party content, but rather as the counter-party to a 5 contract, as a promisor who has breached.” Id. at 1107 . 6 For an express contract, the course of performance “may supplement or qualify the terms 7 of the agreement, or show a waiver or modification of any term inconsistent with the course of 8 performance.” Emps. Reinsurance Co. v. Super. Ct., 161 Cal. App. 4th 906 , 920–21 (2008) 9 (cleaned up). Specifically, conduct antithetical to a written term in a contract that induced the 10 other party to rely on that conduct can amount to a modification of the contract. See Wagner v. 11 Glendale Adventist Med. Ctr., 216 Cal. App. 3d 1379, 1388 (1989). Here, Twitter allegedly 12 established a specific, detailed five-strike policy regarding COVID-19 misinformation and its 13 vice president gave specific and direct assurances to plaintiff regarding his posts pursuant to 14 that policy. Any ambiguities in a contract like Twitter’s terms of service are interpreted 15 against the drafter, Twitter. Sandquist v. Lebo Auto., Inc., 1 Cal. 5th 233, 248 (2016). And, at 16 the pleading stage, this order must construe all allegations in the light most favorable to 17 plaintiff’s allegations. Plaintiff plausibly avers that Twitter’s conduct here modified its 18 contract with plaintiff and then breached that contract by failing to abide by its own five-strike 19 policy and its specific commitments set forth through its vice president. 20 “The elements of promissory estoppel are (1) a clear and unambiguous promise by the 21 promisor, and (2) reasonable, foreseeable and detrimental reliance by the promisee.” Bushell 22 v. JPMorgan Chase Bank, N.A., 220 Cal. App. 4th 915, 929 (2013). The analysis here echoes 23 that of the breach of contract claim. Twitter established a policy that set out standards for 24 account suspension for posting COVID-19 misinformation. Twitter, through its vice president, 25 also gave specific assurances to plaintiff that, among other things, it “would try to ensure 26 you’re given a heads up before any [enforcement] action is taken” (Compl. ¶ 210). 27 Collectively, these actions plausibly qualify as a clear and unambiguous promise that Twitter 1 suspended plaintiff’s account. See Aceves v. U.S. Bank, N.A., 192 Cal. App. 4th 218 , 226 2 (2011). Twitter suspended plaintiff’s account because he ostensibly violated the COVID-19 3 misinformation policy. These facts differ from other recent opinions on promissory estoppel 4 where the pleading did “not allege[] Twitter ever made a specific representation directly to 5 [plaintiff] or others that they would not remove content from their platform or deny access to 6 their accounts.” Murphy v. Twitter, Inc., 60 Cal. App. 5th 12 , 39 (2021); see also King v. 7 Facebook, Inc., ––– F. Supp. 3d –––, 2021 WL 5279823 , at *13 (N.D. Cal. Nov. 12, 2021) 8 (Judge Edward M. Chen). Twitter’s argument that plaintiff’s reliance was unreasonable 9 because the alleged representations contradicted a written agreement is inapposite given the 10 explicit COVID-19 misinformation policy. 11 Aside from Section 230, plaintiff fails to even state a First Amendment claim. The free 12 speech clause only prohibits government abridgement of speech — plaintiff concedes Twitter 13 is a private company (Compl. ¶15). Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 14 1921, 1928 (2019). Twitter’s actions here, moreover, do not constitute state action under the 15 joint action test because the combination of (1) the shift in Twitter’s enforcement position, and 16 (2) general cajoling from various federal officials regarding misinformation on social media 17 platforms do not plausibly assert Twitter conspired or was otherwise a willful participant in 18 government action. See Heineke v. Santa Clara Univ., 965 F.3d 1009, 1014 (9th Cir. 2020). 19 For the same reasons, plaintiff has not alleged state action under the governmental nexus test 20 either, which is generally subsumed by the joint action test. Naoko Ohno v. Yuko Yasuma, 723 21 F.3d 984 , 995 n.13 (9th Cir. 2013). Twitter “may be a paradigmatic public square on the 22 Internet, but it is not transformed into a state actor solely by providing a forum for speech.” 23 Prager Univ. v. Google LLC, 951 F.3d 991, 997 (9th Cir. 2020) (cleaned up, quotation 24 omitted). 25 Aside from Section 230, the Lanham Act claim also fails anyway. The Lanham Act 26 “prohibits any person from misrepresenting her or another person’s goods or services in 27 ‘commercial advertising or promotion.’” Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 , 1 plaintiff’s tweets, nor its statement regarding the suspension of his account plausibly propose a 2 commercial transaction. See United States v. United Foods, Inc., 533 U.S. 405, 409 (2001). 3 They are not advertisements, nor do they refer to a particular product, and the theory that 4 Twitter’s statements were made in the context in which plaintiff offers his services is too 5 attenuated. See Hunt v. City of L.A., 638 F.3d 703, 715 (9th Cir. 2011) (citation omitted). 6 Applying common sense, this order concludes Twitter’s warning labels and suspension notice 7 constitute non-commercial speech aimed instead at promoting the veracity of tweets regarding 8 COVID-19. 9 In light of Section 230’s immunity, it is unnecessary to delve into the specifics of the 10 common carrier law and the California free speech clause. 11 CONCLUSION 12 In sum, plaintiff’s breach of contract and promissory estoppel claims survive for now. 13 Plaintiff’s other claims are futile and are DISMISSED WITHOUT LEAVE TO AMEND. 14 The Court finds that the following disclosures and discovery will efficiently tee this case 15 up for cross motions for summary judgment and / or trial: 16 1. Both sides shall make their initial disclosures under Rule 26 within 14 CALENDAR 17 DAYS. 18 2. Also within 14 CALENDAR DAYS, defendant shall specify what the five strikes were. 19 3. Each side shall produce all documents that fall within the scope of the categories it 20 discloses under Rule 26 regardless of whether or not the party intends to rely on the 21 documents. For example, if a party discloses “the customer file” then it must 22 produce the entire file and not just those pages it intends to use in its case. This is 23 due within 21 CALENDAR DAYS (from today). 24 4. Plaintiff shall produce all texts, emails, voicemails, statements, and other 25 documents by him pertaining to the termination of his Twitter account or the 26 possibility thereof. This is not limited to communications with Twitter. If the 27 document is a response to a message from someone else, then that message must 1 5. Defendant shall produce all texts, emails, voicemails, statements, and other 2 documents pertaining to plaintiff, including but not limited to nonparty complaints 3 or inquiries about plaintiff and / or including possible or actual termination of his 4 account or a strike against his account or a labeling of any of his posts. Given the 5 likelihood of a greater number of relevant documents in defendant’s possession on 6 this topic, the deadline for this production shall be JUNE 20. 7 6. Privilege logs must be immediately supplied for any materials withheld on any 8 ground of privilege. Privilege logs will be provided the same date as the document 9 production. 10 7. Plaintiff shall sit for a single deposition up to seven hours. This must be completed 11 before any depositions of defendant. Then plaintiff may depose up to two Twitter 12 employees or former employees for a total of seven hours. The deadline for 5 13 plaintiffs deposition shall be JUNE 27. The deadline for the completion of 14 defendant’s witnesses shall be JULY 14. 3 15 8. Until further order, no other discovery may be taken. The foregoing is without 16 prejudice to further deposition of the same witnesses and parties in later discovery. 3 17 Counsel may agree in a stipulation promptly filed herein to modest adjustments of 18 the foregoing deadlines and obligations. Based on what the foregoing discovery 19 shows, by JULY 21, counsel shall propose a further phase of discovery and / or 20 summary judgment motions. 21 IT IS SO ORDERED. — 22 — 23 Dated: April 29, 2022. — 24 — Le Pee LIAM ALSUP 26 UNITED STATES DISTRICT JUDGE — 27 — — 28 —