Center for Technology and Innovation

Soc⁠i⁠al Med⁠i⁠a: Publ⁠i⁠sher, Publ⁠i⁠c Forum, or Some⁠t⁠h⁠i⁠ng Else?

By: Guest Author / 2019

By: Camille Vazquez

June 4, 2019

On February 11, 2019 Meghan Murphy filed suit against Twitter Inc. and Twitter International Company after the social media platform permanently banned her account. Twitter has alleged that Murphy “misgender[ed] another user” and engaged in other hateful speech that violated their Hateful Conduct Policy. But According to the complaint, at the time that Murphy joined Twitter the User Agreement and other incorporated documents did not prohibit Murphy’s speech. In its User Agreement, Twitter promised (1) to give notice of changes to the agreement, (2) to give notice before suspending an account, and (3) that no changes would apply retroactively. However, Murphy alleges that she did not receive notice of the changes in the agreement, she did not receive notice that her account would be suspended, and that the changes in the agreement are in fact being applied retroactively to her. Consequently, Murphy has brought three claims: breach of conduct, promissory estoppel, and violation of California’s Unfair Competition Law.

This seems like a First Amendment freedom of speech case, so why is Murphy bringing her claims under state and common law instead of federal or constitutional law? The simple answer is that she cannot—at least not under the current state of the law. Twitter is a private actor and therefore does not owe an obligation to any of its users to uphold users’ constitutional rights. Social media platform users have attempted to argue this point in the past by trying to frame social media platforms in one of two ways: as a publisher or as a public forum.

The argument for framing platforms like Twitter as a publisher goes as follows: Twitter publishes their users’ content, therefore Twitter is a publisher and is held accountable for content it publishes. Therefore, Twitter must make sure to facilitate online speech and remain viewpoint neutral. But this argument quickly fails in light of section 230 of the CDA, which states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” So, Twitter is not a publisher and, as nothing more than a curator, it has no obligation to censor user content or remain viewpoint neutral.

Conversely, the argument for framing Twitter and other social media platforms as a public forum is as follows: Twitter’s mission includes “giv[ing] everyone the power to create and share ideas instantly without barriers.” Furthermore, Twitter claims to “stand for freedom of expression for everyone.” Therefore, since nearly every adult can have a twitter account and can publicly share thoughts and ideas, Twitter must be a public forum. Public forums cannot engage in viewpoint or content discrimination without meeting a very strict scrutiny standard. But, this argument is wrong. The term “public forum” is a legal term of art with specific consequences. The United States Supreme Court has limited public forums to include mainly cities and private towns which operate with municipal authority (see Marsh v. Alabama and Lloyd Corp. v. Tanner). To be considered a public forum, these entities must have “all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State…” It is impossible for a social media platform to meet this standard. Twitter must be a private forum and private forums have no obligation to protect a users’ constitutional rights.

But, private forums are not immune to the law. Private actors must honor the contracts in which they engage or face the consequences, pecuniary or otherwise. If the timeline that Murphy has alleged in her complaint is accurate, then Twitter has indeed breached its contract and violated California and common law. Twitter must face the consequences.

What does this mean for Florida? Like California, Florida has a law called the Florida Deceptive and Unfair Trade Practices Act that makes unlawful “unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” 501.204(1), Fla. Stat. (2018). Twitter’s alleged one-sided terms and covert editing of its User Agreement could be grounds for a successful suit under this Act. Social pressures for the distribution of bargaining power and a need for uniformity may push these cases to be held for plaintiffs who challenge the business practices of these corporations. It is important to remember that precedent from California state courts is persuasive and not binding on Florida courts, however a case like this could be a frontrunner for the United States Supreme Court in years to come which would influence business practices across all 50 states.

Camille Vazquez is a third year law student at Florida State University College of Law.