Last week, Judge John Marshall ruled that Congressman Devin Nunes can sue Twitter for defamation in Virginia. The lawsuit alleges that Twitter does not enforce its terms and rules equally and claims that the company actively censors and shadowbans conservatives such as Nunes. The judges’ decision means that Twitter could now be forced to disclose evidence of anti-conservative bias on its platform.
Nunes filed the lawsuit in March against Twitter and several of its users – political consultant Liz Mair, the anonymous parody account Devin Nunes’ cow, and the anonymous parody account Devin Nunes’ mom.
Part of the lawsuit claims that:
“Twitter represents that it enforces its Terms and Rules equally and that it does not discriminate against conservatives who wish to use its “public square”. This is not true. This is a lie. Twitter actively censors and shadow-bans conservatives, such as Plaintiff, thereby eliminating his voice while amplifying the voices of his Democratic detractors.”
Twitter had argued that Nunes should not be able to pursue the lawsuit in Virginia but Judge Marshall rejected its argument last week:
“The plaintiff came from California to Virginia to pursue claims that arose in Virginia against defendants who were in Virginia. The causes of action in this case are interdependent and for the other reasons in this opinion the court will not dismiss the action against Twitter.”
Following Judge Marshall’s ruling, a Twitter spokesperson said the company “continues to dispute the claims raised by Congressman Nunes. We enforce the Twitter Rules impartially for all users, regardless of their background or political affiliation. We are constantly working to improve our systems and will continue to be transparent in our efforts.”
The decision means that the case will now go to trial and Twitter will be subject to discovery by Nunes and his legal team. This discovery process could result in Twitter being forced to disclose evidence that shows it isn’t as impartial as it claims.
One of the most notable examples of this could come if Nunes and his team seek evidence on why the AOC Press parody account, which parodied and criticized Democratic congresswoman Alexandria Ocasio-Cortez (AOC), was shut down by Twitter while the accounts named in Nunes’ lawsuit were not – an incident which appears to show unequal enforcement of Twitter’s rules around parody accounts because of the political leanings of those parody accounts.
Outside of the parody sphere, Twitter’s decision to temporarily lock Senate Majority Leader Mitch McConnell’s campaign account after it showcased violent threats being made against him, Twitter locking the account of leading gun statistics expert John Lott, Twitter using artificial intelligence (AI) to shut down accounts for using #DemandVoterID – a hashtag that was primarily used by conservatives, Twitter suspending users for tweeting #LearntoCode – a hashtag that was primarily used to mock left-leaning journalists, and Twitter’s suspensions of many other high profile conservative accounts this year could all prove to be revealing areas of discovery for Nunes and his team.
Discovery isn’t the only area where this decision could prove to be problematic for Twitter. While Twitter is protected from being held liable for user-generated content under Section 230 of the Communications Decency Act (CDA), such as the posts made by the Twitter users named in Nunes’ lawsuit, it is not protected from promissory estoppel claims, which arise from a failure to provide the promised products or services. Nunes could argue that a jury should decide, based on evidence that arises out of discovery, whether Twitter was acting as a neutral service provider.
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