After utilizing Twitter as a vehicle to dispatch largely-frivolous threats to sue his critics for libel (a boy-cries-libelwolf pattern that has spawned this amusing site), what is Chuck C. Johnson to do after Twitter gives him the heave-ho?
Threaten to sue, of course. Like his libel threats, this threat isn’t likely to lead to an actual lawsuit. Either (a) Twitter will prefer to avoid costly litigation by giving Johnson the low-cost alternative he demands (i.e., reinstatement of his account); or (b) Johnson won’t file such a lawsuit; or (c) Johnson will file a lawsuit and lose.
The nastygram dispatched on Memorial Day by Johnson’s attorney is light on the law. In fact, it cites no law and only vaguely references any potential causes of action. Twitter’s counsel is more likely to spend more time on checking whether a real attorney actually sent the letter and less time on writing their response, if any. (I recommend closing with “lmao, [attorney signature]”.)
These, however, are the causes of action I can divine from the letter, and why each will fail:
First, Johnson hints at Twitter negligently causing him economic harm — that is, a loss of income — by suspending his account. Twitter plainly has immunity under the Communications Decency Act, which is the law that allows service providers like Twitter and Facebook to police content (and decide whether to remove or not remove content) without making themselves liable for making those kinds of decisions.
Second, even if the CDA didn’t bar that type of claim, Johnson suggests that there might be a breach of contract claim.
Johnson’s argument appears to be that the apparent last-straw tweet — a claim that for $500, he would “take out” a prominent activist — was not a threat of physical harm. And he’s right: It was a threat to dig up dirt — probably finding an old Friendster profile of someone else entirely and getting it wrong. But it doesn’t matter: Twitter’s Terms of Service give them the power to part ways with its users for any or no reason at all:
We reserve the right at all times (but will not have an obligation) to […] suspend or terminate users […] without liability to you. […] We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any or no reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms or the Twitter Rules[.]
And then there’s this:
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE TWITTER ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID TWITTER, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.
Even if Johnson were to succeed, he’d get $100, per the contract. Now, this is probably unenforceable, but given that a Twitter account is free, I could see an overworked judge, unclear why his or her legal intervention is necessary over a free account’s termination, upholding this.
Imagine walking into a federal court, or even a small claims court, and complaining that your free Blockbuster account was terminated because you kept talking to customers about how black people are more violent because of genetics. That lawsuit would be only slightly less credible than this one.
Third, Johnson paws at an anti-trust lawsuit. He essentially argues that Twitter has become so large that he is entitled to have an account on the site, because otherwise he won’t be able to reach an audience. Thus, the argument goes, Twitter should be unable to have much (if any) leeway in writing the contract that governs its relationship with its users. The government, instead, should write that contract. This is, at its core, an argument that suggests that the First Amendment should apply to corporations: you’re so large that you should be required to carry my message. If Johnson pursues this path, he would be going to war with a large corporation in order to serve the ends of social justice. I understand there’s a term for that.
In any event, this is a dumb argument. Johnson still has an account on Twitter and, even if he didn’t, Twitter has a First Amendment right to say “hey, we don’t want to associate with you, go away.”
Fourth, Johnson invokes (on Twitter, ironically) his status as a shareholder, suggesting that might be a basis for a lawsuit. Even if Johnson could identify some policy decision he disagrees with — say, the company’s attention to limiting the negative experience some of its audience has on the site due to harassment — he’s got an uphill battle. Courts don’t like interfering with a company’s policy or business decisions, so they deploy an extremely-impossible-to-beat “business judgment rule.” Basically, as long as Twitter’s executive board didn’t get stoned and sit around a Ouija board, deferring all decisions to the spirit world, a lawsuit complaining that they made a bad choice is hopelessly doomed.
Lastly, Johnson’s lawyer is a Missouri attorney. Johnson is a California resident. Twitter is a California company. Johnson would at least have to hire a California attorney. It doesn’t take much to write a hasty, menacing-sounding letter without doing much (if any) research for an out-of-state client, but it does betray a certain lack of seriousness in actually pursuing a lawsuit.
This threat is just as likely to be borne out as the innumerable forthcoming libel lawsuits.