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A Little More About Berenson v. Twitter

For those of you who care about the details, but not enough to read the complaint

So over on Twitter, one of America’s Finest Legal Scholars (TM) is taking time out from his busy practice to rebut the complaint pro malo.

He must have a lot to do because he’s spent most of the last day on this; I wonder which client he’s billing, or if he’s “between clients” at the moment. Anyway, you can tell he’s a serious guy because he throws up memes with every tweet! Just like Brandeis.

What’s fascinating is that despite his endless tweets, he somehow has not managed to grasp one of the core arguments – simple in theory, though complex in its details – that the complaint raises.

For those of you who have neither the time nor the inclination to wade through the argument, it goes like this:

  1. Twitter is indisputably a messenger service. A longstanding California law regulates messenger services as “common carriers.” This means that they must accept all messages they receive. Twitter thus must accept all tweets it receives. It has no First Amendment rights to refuse them on the basis that it does not agree with them.
  1. A federal law commonly called Section 230 “preempts” the California law, giving Twitter the right to reject tweets or ban users. (Whether that right is universal or whether Twitter must act in “good faith” in restricting service is a separate question; whether Twitter acted in “good faith” in this case is still another question. But put those issues aside for the moment.)

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