Murphy v. Twitter, Inc.

60 Cal.App.5th 12

274 Cal.Rptr.3d 360

Meghan MURPHY, Plaintiff and Appellant,

v.TWITTER, INC., et al., Defendants and Respondents.

A158214

Court of Appeal, First District, Division 1, California.

Filed January 22, 2021

Certified for Partial Publication.^*

Dhillon Law Group, Inc., Harmeet K. Dhillon, San Francisco; Michael Yamamoto LLC and Gregory R. Michael for Plaintiff and Appellant.

Wilmer Cutler Pickering Hale and Dorr LLP, Patrick J. Carome, Ari Holtzblatt and Thomas G. Sprankling, Palo Alto, for Defendants and Respondents.

Jenner & Block LLP, Luke C. Platzer ; National Center for Lesbian Rights, Shannon Minter, Asaf Orr, San Francisco; Zeb C. Zankel ; Ethan C. Wong ; Vaughn E. Olson; GLBTQ Advocates & Defenders and Jennifer Levi for National Center for Lesbian Rights, LAMBDA Legal Defense and Education Fund, Inc., GLBTQ Legal Advocates & Defenders, Transgender Law Center, and The Human Rights Campaign as Amicus Curiae on behalf of Defendants and Respondents.

Perkins Coie LLP and James G. Snell, Palo Alto, for Internet Association, Facebook, Inc., Glassdoor, Inc., Google LLC, and Reddit, Inc. as Amicus Curiae on behalf of Defendants and Respondents.

Margulies, J.

When Meghan Murphy posted several messages critical of transgender women on Twitter, the company took down her posts and informed her she had violated its hateful conduct rules. After she posted additional similar messages, Twitter permanently suspended her account. Murphy filed suit, alleging causes of action for breach of contract, promissory estoppel, and violation of the unfair competition law ( Bus. & Prof. Code, § 17200 et seq. ) based on allegations that Twitter's actions violated its user agreement with Murphy and hundreds of similarly situated individuals. The trial court sustained Twitter's demurrer to the complaint without leave to amend, concluding Murphy's suit was barred by the Communications Decency Act of 1996 (CDA) ( 47 U.S.C. § 230 ; hereafter section 230 ).

Under section 230, interactive computer service providers have broad immunity from liability for traditional editorial functions undertaken by publishers—such as decisions whether to publish, withdraw, postpone or alter content created by third parties. Because each of Murphy's causes of action seek to hold Twitter liable for its editorial decisions to block content she and others created from appearing on its platform, we conclude Murphy's suit is barred by the broad immunity conferred by the CDA. In addition, Murphy has failed to state a cognizable cause of action under California law, and has failed to demonstrate how she could amend her complaint to allege a viable claim for relief. Accordingly, we affirm the judgment of the superior court.

I. BACKGROUND

In February 2019, Murphy filed a complaint against Twitter, Inc. and Twitter International Company (Twitter), asserting causes of action for breach of contract, promissory estoppel, and violation of Business and Professions Code section 17200, the unfair competition law (UCL).

Twitter operates an Internet communications platform that allows its users to post short messages, called "tweets," as well as photos and short videos. Hundreds of millions of active users use Twitter to communicate, share views, and discuss issues of public interest. Twitter users can "follow" other users and thereby choose whose tweets they want to see.

Meghan Murphy is a freelance journalist and writer who writes primarily on feminist issues from both a socialist and feminist perspective. Murphy is also the founder and editor of Feminist Current, a feminist blog and podcast. Murphy joined Twitter in April 2011, and used it "to discuss newsworthy events and public issues, share articles, podcasts and videos, promote and support her writing, journalism and public speaking activities, and communicate with her followers." At the time her account was permanently suspended, Murphy had approximately 25,000 followers. Twitter had also given Murphy a blue "verification badge," which " ‘lets people know that an account of public interest is authentic.’ "

According to her complaint, Murphy "writes primarily on feminist issues, including the Me Too movement, the sex industry, sex education, third-wave feminism, and gender identity politics." In her work, Murphy argues "that there is a difference between acknowledging that transgender women see themselves as female and counting them as women in a legal or social sense." She "object[s] to the notion that one's gender is purely a matter of personal preference."

Beginning in January 2018, Murphy posted a series of tweets about Hailey Heartless, a prominent public figure who had been chosen to speak at the Vancouver Women's March in 2018. According to the march organizers, Heartless " ‘self identifies as a transsexual professional dominatrix’ " and " ‘has over ten years of activist experience in LGBTQ, feminist, sex positive, sex worker and labour communities.’ " Heartless's legal name is Lisa Kreut. Kreut had identified as a male until approximately three years earlier.

At the 2016 British Columbia Federation of Labour (BCFED) Conference, Kreut had helped organize a successful effort to prohibit BCFED and its affiliated unions from funding the Vancouver Rape Relief and Women's Shelter, on the ground that it limited its services to biological females. Murphy was "intensely critical of the effort to defund the Women's Shelter."

On January 11, 2018, Murphy tweeted: "For the record, this ‘dominatrix’ was also one of those behind the push to get @bcfed to boycott and defund Vancouver Rape Relief, Canada's longest standing rape crisis center. He is ACTIVELY working to take away women's services and harm the feminist movement."

In May 2018, Murphy again tweeted about Kreut after Kreut and others signed an open letter to organizers of the Vancouver Crossroads conference. The letter, which was posted to a website Kreut helped create, urged conference organizers to remove a local poverty activist from a panel discussion on urban renewal because she was " ‘a well-documented Trans Exclusionary Radical Feminist (TERF) and Sex Worker Exclusionary Radical Feminist (SWERF), and is known in the community to promote this ideology.’ " Murphy alleges the letter made clear that it was also targeted at her, and that the letter signatories were "urging that she never again be allowed to speak in public either." In response to the open letter, Murphy tweeted: "Lisa Kreut and another trans-identified male/misogynist created a website in order to libel a local woc activist, and published a letter demanding she be removed from a panel scheduled as part of this conference .... The organizers caved immediately." A second tweet posted moments later said: "The ‘evidence’ provided to claim the activist should be removed is almost entirely to do with her activism against the sex trade, then literally a few retweets and ‘likes’ from feminists these men don't like. Seven people signed the thing. It's ridiculous."

After Murphy's May tweets, Kreut contacted SheKnows Publishing Network, the company that arranges advertising for Murphy's blog, Feminist Current, to complain about Murphy's writing. SheKnows responded in July 2018 by pulling all advertising from Feminist Current and terminating its relationship with the site.

On August 30, Murphy wrote three more tweets about Kreut:

" ‘Aaaand look who publicly admitted to going after @feministcurrent's ad revenue in an attempt to shut us down, and is now offering tips to other men in order to go after @MumsnetTowers’ "

"This is Lisa Kreut, @lispinglisa, the male BDSMer who was given a platform to promote prostitution at the Vancouver Women's March this year, who led efforts to defund Vancouver Rape Relief & Women's Shelter at BCFED 2016 ...."

"So @BlogHer pulled revenue from a feminist site because a white man who spends his energy promoting the sex trade as empowering for women and targeting/trying to silence/defund women's shelters, female activists, and feminist media told them to."

The same day, Twitter locked Murphy's account for the first time. Twitter claimed that four of Murphy's tweets, the tweet from January 11 and the three tweets from August 30, "[v]iolat[ed] our rules against hateful conduct." Twitter required Murphy to delete the tweets before she could regain access to her account. The next day, Murphy tweeted: "Hi @Twitter, I'm a journalist. Am I no longer allowed to report facts on your platform?" Twitter required Murphy to delete that tweet as well on the ground it violated Twitter's "Hateful Conduct Policy" (Hateful Conduct Policy). Twitter also suspended Murphy's account for 12 hours. Murphy appealed the suspension, but received no response.

On November 15, Murphy's account was locked again. Twitter required her to remove a tweet from October 11 that stated, "Men aren't women," and a tweet from October 15 that asked, "How are transwomen not men? What is the difference between a man and a transwoman?" Twitter told Murphy the tweets violated its Hateful Conduct Policy.

The same day, Murphy tweeted: "This is fucking bullshit @twitter. I'm not allowed to say that men aren't women or ask questions about the notion of transgenderism at all anymore? That a multi billion dollar company is censoring BASIC FACTS and silencing people who ask questions about this dogma is INSANE ...."

Four days later, on November 19, Twitter locked Murphy out of her account and required her to delete her tweet from November 15 in which she criticized Twitter's actions. Twitter did not identify any rule or policy the November 15 tweet violated. On November 20, Murphy was once again locked out of her account, and required to delete her two tweets from May 2018 about Lisa Kreut.

On November 23, Twitter sent Murphy a private e-mail stating that she was being permanently suspended based on a November 8 tweet in which Murphy wrote, " ‘Yeeeah it's him’ " over an embedded image of a Google review of a waxing salon posted by "Jonathan...