Charles “Chuck” Johnson has sued Twitter for kicking him off the platform.
According to CNET,
Johnson was suspended by Twitter after tweeting that he wanted to raise money for “taking out” DeRay McKesson, a prominent Black Lives Matter activist. Many people viewed the tweet as a call for violence against McKesson.
Ordinarily the suit would stand little chance, since non-governmental entities are not governed by the prohibitions of the First Amendment. While it is true that in Packingham v. North Carolina, the high court spoke of cyberspace as the modern equivalent of the public square, the case involved governmental interference with free speech.
However, Johnson sued in California state court. California has a constitutional provision that has been interpreted by its highest court in a more expansive manner than the federal provision.
We conclude that sections 2 and 3 of article I of the California Constitution protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.
Of course, this does not mean Johnson has an absolute right to spew his hate on Twitter. But it does mean Twitter may have to grant him more process than it has. The state high court in Robins spoke only of time, place and manner restrictions, but it is unlikely that it would prevent a private actor from barring threats or hate speech.
Johnson also sued under a slew of other statutory provisions outside the realm of this initial analysis.
This case presents a problem for Twitter, since people like Johnson litter the Twitterscape and Twitter is under tremendous pressure to get rid of them. Which means that instead of just saying, we’re kicking you off for violating our Terms of Service, it may actually have to spell out exactly what the offender did and perhaps give him a chance to respond and defend himself. Or it may not be able to kick him off at all. This process, repeated thousands of times a day, could be what finally brings the already troubled giant down.
The case is before a California Superior Court judge, but it will ultimately be decided by the Court of Appeal and probably by the California Supreme Court. That is as far as the case is likely to go, since states are free to grant more rights to its citizens than the federal government does. Unless the high court were to decide that California had gone too far and granted rights to citizens that ended up denying rights of private corporations.
In any event, this is not just another nutty right wing case. This thing has some merit.