Twitter could be facing more than just a public relations nightmare from Project Veritas’ most recent expose and MILO’s recently announced anti-trust lawsuit.
The social media giant may be guilty of violating of California law regarding discriminating against a political class, and being deceptive to their customer base. Twitter, by discriminating against people on the right, has exposed itself to a potential cascade of legal liability—including a potential class action suit.
The public has been fighting back against the overreach of Big Tech, which has escalated to national attention with James Damore’s class action lawsuit against Google. Damore’s lawsuit is important because it provides a roadmap for enforcing state law on tech businesses in discriminatory situations. The lawsuit involves employment situations, but with Twitter, we have a case of consumer protection and free speech rights.
Consumers have grown frustrated at big tech giants like Twitter, Google, and Facebook for their bannings, deletion of content, and demonetization of their personal and small business platforms.
The Silicon Valley tech giants have been at the epicenter of a storm of perceived malice toward conservatives, which has caused an uproar of calls for regulation and assurances an individual’s rights to free speech be upheld. California attorney Peter Sean Bradley said on the matter, “The Damore case tests whether the protection of political speech will have priority over the control that a private employer/powerful internet communication provider can exercise over such speech.”
The powerful in Silicon Valley have been doing everything they can to silence conservative thought, even going so far as to target professional journalists. Conservative news outlet, PJ Media, has had a number of their journalists fall victim to Big Tech’s censorship practices, including their editor Bridget Johnson, who had her Twitter account deleted without warning nor explanation in November 2017. She is a hard news reporter who was exposing problems with Islamic Radical Terrorism in the Middle East.
Someone at Twitter apparently didn’t like her messaging, and she has not been able to retrieve her account. Journalist Megan Fox had similar problems with Google-owned YouTube, but is optimistic that with the damning evidence Project Veritas presented in regards to Twitter, we will start to see change.
“The jig is up. We all know that big tech is censoring conservatives. The next step is forcing them to comply with the First Amendment through regulation and treat them as a public utility. Our lawmakers should also investigate Google, Twitter, and Facebook as monopolies,” Fox said.
On the Federal level, there is currently no law restricting a private company in the use of their internet platform or to protect the speech rights of users. Change could take years before it is proposed, let alone approved. However, with most big tech companies being based in the San Francisco Bay Area, in the great State of California, they have to comply with a far greater number of laws and regulations than they would at the Federal level. This is where James Damore’s example can be followed by filing a State lawsuit for discrimination rather than one in federal jurisdiction.
California businesses are subject to The Unruh Civil Rights Act of 1959, which outlaws “discrimination based on sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status or sexual orientation.”
It sounds like similar Federal Civil Rights laws, but California’s Unruh act goes much further in the classes of people to which it extends protections. In the case of Marina Point, Ltd v. Wolfson, the California Supreme Court upheld that the law applies to any form of identity, including political affiliation. The ruling stated clearly “The Unruh act protects individuals from… arbitrary discrimination.”
The intent of the act is to protect people in a public setting from large corporations where they might be at a disadvantage in terms of having their voices heard. The Unruh act applies to hotels, restaurants, theaters, hospitals—anything that could reasonably be attributed to be a public square.
Is the Internet the new public square? Almost everyone uses social media for their interactions and to express their opinions. People gather into groups and engage socially like they would at a shopping mall in decades past.
The California Supreme Court upheld that “HN5 article I, section 2 of the California Constitution protects expressive activities—including petitioning and picketing—conducted in privately-owned shopping centers” in the case Fashion Valley Mall, LLC v. NLRB. This is of interest in a case like Twitter because even though Fashion Valley was privately owned, but the states found the rights of individuals to gather and speak freely trumped the rights of property ownership because it is viewed as a place of public assembly.
Though Twitter is a private company, it shares many similarities with private properties where the public assembles. The platform provides a forum for public free speech similar to shopping malls where people can speak privately or publicly, as well as to gather in groups. The only difference is the space is intangible, in cyberspace rather than a physical space.
Utsav Sanduja, Chief Operating Officer of the social media website Gab.ai, said he agrees with the concept of social media being akin to shopping malls in providing public forums for speech.
“Electronic communications is integral to public speech, comparable to the telephone,” Sanduja said. “When these social media companies get too large, they become equivalent to the big telecoms, amassing to much influence in direct peer to peer communications. They should fall under regulations of allowing free speech and guaranteeing constitutional rights.”
In some ways, a company like Twitter or Google has greater ties to being a public utility than a shopping mall. “The government uses these social media companies in official communications. These companies get preferential tax treatments. They should be held under the same regulations as government,” Mr. Sanduja elaborated.
Another California statute where Twitter may be in violation is the Business & Professions Code section 17200. This code allows injunctive relief and restitution against “unfair and deceptive business practices.”
Twitter is on record with secret words and phrases that can trigger end users to be shadow banned, that can negatively impact the experience of the end user depending on their identity. “It’s hard to think of a more deceptive or unfair business practice than shadow banning,” says Mr. Bradley in discussion of this law. If Twitter is both harming users in this way and discriminating based on political affiliations or identity, there are multiple grounds for a class-action lawsuit against Twitter by its users.
Whether the future holds for the government to regulate monopolistic tech institutions or not remains to be seen, but for now, there is the potential for a legal battleground based on these companies operating under the rules of the State of California. Something must be done to protect individual Californians and all Americans right to speak and assemble.
Jon Del Arroz is known as the leading Hispanic voice in Science Fiction. He is a multi-award nominated author best known for his hit Steampunk fantasy novel, For Steam And Country. He blogs at delarroz.com and is on Twitter: @jondelarroz
feature image via Fortune