For years, the controversial right-wing activist Charles C. Johnson has threatened to sue Twitter, which banned him in 2015.
Now, following a BuzzFeed News report that revealed the internal debate behind Twitter’s 2015 decision to bar him from its service, Johnson is putting his money where his mouth has long been.
In a lawsuit filed in California Superior Court in Fresno on Monday, Johnson’s attorney Robert E. Barnes claims that the microblogging service banned his client for his political views, violating his right to free speech and breaking its contract with him in the process. In addition, the suit seeks millions of dollars of relief for alleged damage to Johnson’s media businesses. It was the second lawsuit filed today by a conservative activist against a tech superpower, following ex-Googler James Damore's suit against his former employer.
“This is going to be a very serious case over the freedom of the internet,” Johnson told BuzzFeed News. “And whether people have the right to say what they mean and mean what they say.”
Informed of the suit before it was filed, Twitter declined to comment on pending litigation.
The Johnson suit comes at a time when Americans across the political spectrum have become skeptical of the amount of power held by Silicon Valley giants and suspicious of their motives. It joins several other lawsuits by conservative parties against big tech platforms that claim tech companies like Twitter and Facebook discriminate against right-wing users. And while Johnson has a history of unsuccessful legal action, this suit hopes to test whether the various laws that have historically protected internet publishers are strong enough to withstand this new public scrutiny.
Twitter permanently suspended Johnson — a former Breitbart reporter who owns the crowdsourced investigations site WeSearchr — in May 2015 after he asked for donations to help "take out" civil rights activist DeRay Mckesson. While he claimed the tweet was taken out of context, prior to his suspension Johnson had drawn the company’s ire for his incendiary tweets —among them false rumors that President Obama was gay. In 2014 he was temporarily suspended from Twitter for posting photos and the address of an individual he claimed had been exposed to the Ebola virus. (After his suspension — as BuzzFeed News reported in December — Johnson began shorting Twitter's stock and attempting to enlist a range of conservative figures to help him sue the company. He is also partially crowdfunding his legal fees in the current suit.)
While the complaint takes issue with Twitter’s vague rules and inability to “convey a sufficiently definite warning” to Johnson for his behavior, the suit alleges that emails published by BuzzFeed News prove that the ban was “a political hit job on a politically disfavored individual.” In one January 2016 email to executives including current CEO Jack Dorsey, Tina Bhatnagar, Twitter’s VP of user services, suggested that Johnson’s suspension was a judgment call rather than a strict interpretation of company rules. “We perma suspended Chuck Johnson even though it wasn't direct violent threats. It was just a call that the policy team made,” she wrote.
"That account is permanently suspended and nobody for no reason may reactivate it. Period."
In a subsequent email, Twitter’s general counsel, Vijaya Gadde, referenced a May 25, 2015, email from Costolo, which suggested the decision to make Johnson’s suspension permanent was Costolo’s. "As for Chuck Johnson - [former Twitter CEO] Dick [Costolo] made that decision," Gadde wrote. Johnson’s complaint quotes the 2015 email from Costolo, in which the former CEO warns senior staff, “I don't want to find out we unsuspended this Chuck Johnson troll later on. That account is permanently suspended and nobody for no reason may reactivate it. Period. The press is reporting it as temporarily suspended. It is not temporarily suspended it is permanently suspended. I'm not sure why they're mistakenly reporting it as temporarily suspended but that's not the case here...don't let anybody unsuspend it.”
Costolo’s email, according to the complaint, “confirms that Twitter’s decision to permanently ban Johnson was not based on a perceived rule violation, but bias against Johnson.”
But even if Johnson’s attorneys are able to show that Twitter broke its contract with Johnson by banning him arbitrarily, the suit faces long odds. According to Eric Goldman, director of the Santa Clara University School of Law’s High Tech Law Institute, Twitter possesses a range of legal protections when it decides to ban a user.
“Twitter can choose to terminate anyone’s account at any time without repercussion,” Goldman told BuzzFeed News. “It has a categorical right to block whoever they choose.”
As a publisher, Twitter is protected by the First Amendment. And as an internet service provider, Twitter is protected by Section 230 of the Communications Decency Act — often referred to as the most influential law in the development of the modern internet — which has historically immunized provider’s decisions to terminate accounts.
The protections of Section 230 depend on the “good faith” of the provider, and Johnson’s suit argues that the emails reported by BuzzFeed demonstrate the lack thereof. And yet Johnson’s own reputation for bad faith may undercut that argument.
“It’s clear Twitter blocked him because they consider him a troll,” Goldman said.
In addition, Johnson’s suit argues that Twitter “performs an exclusively and traditionally public function,” and so it shouldn’t have the right to ban him for speech it doesn’t like. According to Goldman, such arguments have historically been unsuccessful in the courts, in part because judges are loath to set a potentially sweeping new precedent. Still, it’s an area where growing public resentment of big tech’s monopolistic power could have influence over a judge or a jury.
“We can’t ignore that there is such skepticism towards internet companies’ consolidation of power,” Goldman said. “The prevailing environment makes it dangerous for them.”
And for Johnson, who seems to want to embarrass Twitter as much as he wants to make a broader statement about the nature of internet platforms and the way they discriminate against conservatives, simply getting the suit past an initial motion to dismiss — and into discovery — might represent a victory.
“You can lose a lawsuit and still win the argument,” Johnson said.