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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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January 26, 2021

Murphy v. Twitter, Inc., A158214 (Jan. 22, 2021)

Plaintiff posted several messages critical of transgender women on Twitter. The company took down her posts and suspended her account after she posted additional similar messages. Plaintiff alleged causes of action against Twitter for breach of contract, promissory estoppel, and violation of the unfair competition law, relying on Twitter’s rules and terms of service documents stating, among other things, that Twitter does not censor user content except in limited circumstances not applicable to plaintiff. The trial court sustained Twitter’s demurrer to the complaint, concluding that plaintiff’s suit was barred by the Communications Decency Act of 1996 (47 U.S.C. § 230; hereafter section 230), which states that providers of internet services are immune from suits that treat them as the publisher or speaker of content provided by third parties.

The Court of Appeal affirmed. First, the court held that plaintiff’s claims are barred by section 230 because Twitter’s taking down her posts and suspending her account are protected by section 230 as editorial decisions by a publisher or speaker of third-party content. Because plaintiff relied on Twitter’s general statements to its users rather than a “specific personal promise,” the court rejected plaintiff’s argument that her claims treated Twitter as a party to a contract rather than as a publisher or speaker.

The court further held that even assuming section 230 immunity did not apply, plaintiff did not state a viable cause of action. Twitter’s terms of service stated it reserved the right to suspend or terminate users’ accounts for any or no reason without liability. The court rejected plaintiff’s argument that this reservation-of-rights term is unconscionable. Also in light of that term, the court held that no reasonable person could rely on Twitter’s aspirational statements that it believed in free expression and would not “censor” users to mean Twitter would never restrict content.