Rutenburg v. Twitter CA1/1

Filed 6/2/23 Rutenburg v. Twitter CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or

ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

MARIA RUTENBURG,

Plaintiff and Appellant, A165615

v. (San Mateo County

TWITTER, INC., Super. Ct. No. 21-

CIV-03722)

Defendant and Respondent.

Appellant Maria Rutenberg appeals from a judgment of dismissal

following the sustaining of respondent Twitter, Inc.’s, demurrer to her first

amended complaint. Rutenberg maintains she adequately alleged a violation

of her state constitutional right of free speech based on Twitter’s moderating

of, and then suspension of, then-President Donald Trump’s Twitter account,

which prevented her from accessing “the interactive space” on the social

media platform for responding to Trump’s tweets. In other words, Rutenberg

is not complaining that Twitter moderated or suspended her Twitter account,

but that it moderated and then suspended Trump’s Twitter account and

thereby interfered with an asserted state constitutional right to access an

“interactive space” to comment on Trump tweets.

Twitter demurred on a number of grounds, including (1) Rutenberg’s

lawsuit is barred by section 230 of the Communications Decency Act

1

(47 U.S.C. § 2301), (2) Twitter is not a state actor, (3) Rutenberg lacks

standing to challenge Twitter’s action as to Trump’s Twitter account, and (4)

the action is now moot, given that Trump no longer holds the office of

President. The trial court sustained the demurrer on all four grounds and

dismissed the case. We affirm.

DISCUSSION

Standard of Review

“On appeal from a judgment based on an order sustaining a demurrer,

we assume all the facts alleged in the complaint (or petition) are true.

(Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 528. . . .) We

accept all properly pleaded material facts, but not contentions, deductions, or

conclusions of fact or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1,

6. . . .) We may also consider matters subject to judicial notice. (Ibid.) We

determine de novo whether the complaint (or petition) alleges facts sufficient

to state a cause of action under any legal theory. (Committee for Green

Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32,

42. . . .) We read the complaint (or petition) as a whole and its parts in their

context to give the pleading a reasonable interpretation. (Evans v. City of

Berkeley, supra, at p. 6. . . .) [¶] When a trial court has sustained a demurrer

without leave to amend, ‘we decide whether there is a reasonable possibility

that the defect can be cured by amendment: if it can be, the trial court has

abused its discretion and we reverse; if not, there has been no abuse of

discretion and we affirm.’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318. . . .)

‘The burden of proving such reasonable possibility is squarely on the

1 All further statutory references are to the Act unless otherwise

indicated.

2

plaintiff.’ ” (Crestwood Behavioral Health, Inc. v. Baass (Cal.Ct.App., May 1,

2023, No. C094882) 2023 WL 3166593, at p. *6.)

“ ‘The judgment must be affirmed “if any one of the several grounds of

demurrer is well taken.” ’ ” (Nisei Farmers League v. Labor & Workforce

Development Agency (2019) 30 Cal.App.5th 997, 1011, quoting Palestini v.

General Dynamics Corp. (2002) 99 Cal.App.4th 80, 86.) We therefore need

not reach all the grounds on which the trial court sustained Twitter’s

demurrer if any one of them is correct. (See Aubry v. Tri-City Hospital Dist.

(1992) 2 Cal.4th 962, 970, fn. 7 [because court concluded there was no

statutory cause of action, it “need not consider” whether action “was barred in

large part by the statute of limitations, which formed an alternate basis for

the . . . trial court’s ruling on the demurrer”].)

The Communications Decency Act

The United States Supreme Court has recently summarized the basic

aspects of Twitter’s business model. “People from around the world can sign

up” for such a social media platform “and start posting content . . . , free of

charge and without much (if any) advance screening by [the platforms]. Once

on [a] platform[], users can upload messages, videos, and other types of

content, which others on the platform can then view, respond to, and share

. . . , [and] billions of people have done just that. As a result, the amount of

content on [such social media] platforms is staggering. . . . [¶] [The platforms]

profit from this content largely by charging third parties to advertise on their

platforms. Those advertisements are placed on or near the billions of videos,

posts, comments, and tweets uploaded by the platforms’ users. To organize

and present all those advertisements and pieces of content, defendants have

developed ‘recommendation’ algorithms that automatically match

advertisements and content with each user; the algorithms generate those

3

outputs based on a wide range of information about the user, the

advertisement, and the content being viewed.” (Twitter, Inc., v. Taamneh

(May 18, 2023, No. 21-1496) 598 U.S. –– [2023 WL 3511531] at pp. *5–6.)

We need not recite in detail the history and purposes of section 230, as

the statutory provision has been discussed at length in cases decided by our

Supreme Court and Courts of Appeal. Suffice it to say “ ‘Congress enacted

section 230 “for two basic policy reasons: to promote the free exchange of

information and ideas over the Internet and to encourage voluntary

monitoring for offensive or obscene material.” ’ (Hassell v. Bird (2018)

5 Cal.5th 522, 534 . . . (Hassell) (plur. opn.).) The statute contains express

findings and policy declarations recognizing the rapid growth of the Internet,

the beneficial effect of minimal government regulation on its expansion, and

the twin policy goals of ‘promot[ing] the continued development of the

Internet and other interactive computer services’ and ‘preserv[ing] the

vibrant and competitive free market that presently exists for the Internet

and other interactive computer services, unfettered by Federal or State

regulation.’ (§ 230(a), (b).)” (Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th

12, 24 (Murphy); accord, Prager University v. Google LLC (2022)

85 Cal.App.5th 1022, 1030–1033 (Prager University).)

“Section 230(c)(1), which is captioned ‘Treatment of publisher or

speaker,’ states: ‘No provider or user of an interactive computer service shall

be treated as the publisher or speaker of any information provided by another

information content provider.’ As relevant here, the statute also expressly

preempts any state law claims inconsistent with that provision: ‘No cause of

action may be brought and no liability may be imposed under any State or

local law that is inconsistent with this section.’ (§ 230(e)(3).) Read together

these two provisions ‘protect from liability (1) a provider or user of an

4

interactive computer service (2) whom a plaintiff seeks to treat, under a state

law cause of action, as a publisher or speaker (3) of information provided by

another information content provider.’ ” (Murphy, supra, 60 Cal.App.5th at

p. 24.)

“[S]ection 230 is to be construed broadly in favor of immunity. (Hassell,

[supra, 5 Cal.5th] at p. 544 . . . [‘broad scope of section 230 immunity’ is

underscored by ‘inclusive language’ of § 230(e)(3), which, ‘read in connection

with section 230(c)(1) and the rest of section 230, conveys an intent to shield

Internet intermediaries from the burdens associated with defending against

state law claims that treat them as the publisher or speaker of third party

content, and from compelled compliance with demands for relief that, when

viewed in the context of a plaintiff’s allegations, similarly assign them the

legal role and responsibilities of a publisher qua publisher’].” (Murphy,

supra, 60 Cal.App.5th at p. 25.)

There is no dispute that Twitter is a “provider” of an interactive

computer service. (Murphy, supra, 60 Cal.App.5th at p. 25; see Prager

University, supra, 85 Cal.App.5th at p. 1033 [no dispute Google and its

subsidiary, YouTube, LLC provide an interactive computer service].)

Rather, the principal dispute is whether Rutenberg is seeking to treat

Twitter as a “publisher” of information “ ‘provided by another information

content provider’ ” (Murphy, supra, 60 Cal.App.5th at p. 24), thereby

triggering the protection of section 230. Rutenberg insists she is not and that

her state free speech claim is based on Twitter’s own, independently

generated content. Twitter maintains Rutenberg’s claim is based squarely on

its publisher “editorial” decisions to moderate and then suspend Trump’s

Twitter account.

5

Given the extant case law, it is apparent Rutenberg is, indeed, seeking

to hold Twitter liable for “typical publisher conduct protected by section

230”—namely “ ‘ “deciding whether to publish, withdraw, postpone or alter

content.” ’ ” (Murphy, supra, 60 Cal.App.5th at p. 26; see Prager University,

supra, 85 Cal.App.5th at pp. 1032–1033 [“ ‘any activity that can be boiled

down to deciding whether to exclude material that third parties seek to post

online is perforce immune under section 230,’ ” quoting Fair Housing Council

of San Fernando Valley v. Roommates.com, LLC (9th Cir. 2008) 521 F.3d

1157, 1170–1171 (Roomates.com)].)

It makes no difference that Rutenberg has styled her claim as one for

violation of free speech rights under our state constitution. Her complaint

“targets [Twitter’s] election to ‘restrict, restrain, and censor [its] content.’ In

applying section 230(c)(1) and (e)(3), ‘what matters is not the name of the

cause of action . . . what matters is whether the cause of action inherently

requires the court to treat the defendant as the “publisher or speaker” of

content provided by another. To put it another way, courts must ask whether

the duty that the plaintiff alleges the defendant violated derives from the

defendant’s status or conduct as a “publisher or speaker.” If it does, section

230(c)(1) precludes liability.’ [Citation.] Whether styled as a violation of the

California Constitution’s guarantee of free speech and association, the Unruh

Civil Rights Act’s antidiscrimination provisions, the UCL, or defendants’

terms of service” the conduct Rutenberg alleges was injurious consisted of

Twitter’s decisions regarding whether to edit content posted by an account

holder or to ban it altogether. (Prager University, supra, 85 Cal.App.5th at

p. 1033.)

Rutenberg’s assertion that her free speech claim targets Twitter as an

“information content provider,” rather than as an “[i]nteractive [s]ervice

6

[p]rovider” (and thus as a publisher), is belied by the substance of her

allegations. She maintains she “properly alleg[ed]” that “Twitter routinely

issues its own news and opinion independent of the activity of [its] users” and

specifically that Twitter was “publishing its own statements in the context of

its own news coverage of the election and physically altering the character of

the physical space,” thereby intruding on and eliminating the “interactive

space” available for commentary. She further asserts her claim “does not

depend on the actions of anyone but Twitter.”

But even assuming Twitter posts its own news content and does so

unilaterally, that is not the basis of her claim. Rather, her claim arises from

Twitter’s decisions to moderate, and then to remove, content provided by

Trump.

Rutenberg alleged, for example, that on the night of the 2020 election,

Twitter “erased” a tweet by Trump to the effect “ ‘they are trying to STEAL

the Election.’ ” When Trump retweeted the message, “Twitter permitted the

Tweet to stand but added its warning notices.” The day after the election,

Twitter “deleted” a Trump tweet. The following day, Twitter “deleted”

another post. The day after that, in support of a rally in the capitol, Trump

tweeted “at least” three times. “[B]ut all three of those [t]weets were

removed by Twitter,” and prior to their removal “Twitter applied warning

labels and restricted [Rutenberg’s] and the public’s ability to interact with

the tweets.” The warning labels stated, for example, “This claim of election

fraud is disputed, and this Tweet can’t be replied to, Retweeted, or liked due

to the risk of violence.” This conduct “blocked access to” the allegedly

“constitutionally protected zone” to “interact[] with” (e.g., comment on and/or

reply to) Trump’s tweets. Rutenberg repeated essentially these same

allegations with respect to additional tweets by Trump. She further alleged

7

that between November 2 and 8, “Twitter deleted approximately 62 tweets

and added approximately 400 warning labels” and then “suspended Trump’s

account and removed all of Trump’s [t]weets entirely.”2

In short, Rutenberg’s allegations demonstrate that her state free

speech claim is grounded on Twitter’s editorial actions with respect to

Trump’s account, and not on Twitter’s origination and posting of independent

“news” content. That these editorial actions resulted in an alteration of the

“physical interactive space,” and specifically the elimination of this space,

does not change the fact that her claims are rooted in Twitter’s editorial

decisions to moderate, and ultimately to suspend, Trump’s account.

2 We note that throughout its respondent’s brief, Twitter cites to

paragraphs of the first amended complaint (e.g., “FAC, [¶] [¶] 4, 9, 70-100,

113”) without providing corresponding citations to the record on appeal. This

is a patent violation of the California Rules of Court, specifically rule 8.204,

subdivision (a)(1)(C) and has greatly inconvenienced the court. “Rule

8.204(a)(1)(C) of the California Rules of Court requires all appellate briefs to

‘[s]upport any reference to a matter in the record by a citation to the volume

and page number of the record where the matter appears.’ It is well

established that ‘ “[i]f a party fails to support an argument with the

necessary citations to the record, . . . the argument [will be] deemed to have

been waived. [Citation.]” ’ [Citation.] This rule applies to matters referenced

at any point in the brief, not just in the statement of facts.” (Conservatorship

of Kevin A. (2015) 240 Cal.App.4th 1241, 1253; see Alki Partners, LP v. DB

Fund Services, LLC (2016) 4 Cal.App.5th 574, 590, fn. 8 [“Rule 8.204(a)(1)(C)

[of the California Rules of Court] is intended to enable the reviewing court to

locate relevant portions of the record ‘without thumbing through and

rereading earlier portions of a brief.’ [Citation.] To provide record citations

for alleged facts at some points in a brief, but not at others, frustrates the

purpose of that rule, and courts will decline to consider any factual assertion

unsupported by record citation at the point where it is asserted.” Quoting

City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16].) This

flagrant violation of the rules provided ample justification to decline to file

Twitter’s brief. (Cal. Rules of Court, rule 8.204(e)(1).) While we exercised our

discretion to accept the brief, we caution counsel that any further appellate

briefing must comply with the California Rules of Court.

8

Rutenberg’s repeated assertion that social media platforms are “public

forums” is also unavailing. True, the courts have declared social media

platforms to be “public forums” for some purposes. But this does not detract

from the established case law broadly construing the substantive protection

afforded by section 230. In Barrett, for example, our Supreme Court

recognized that “[w]eb sites accessible to the public . . . are ‘public forums’ for

purposes of the anti-SLAPP statute.” (Barrett v. Rosenthal (2006) 40 Cal.4th

33, 41, fn. 4 (Barrett).) The high court then went on to conclude that, on the

merits, the plaintiff’s libel claim failed under the “broad immunity” afforded

by section 230. (Barrett, at pp. 40, 62–63.)

Rutenberg’s claim that the “duty” Twitter violated arose not from its

protected role as a publisher, but from a supposed state constitutional duty

“to refrain from arbitrary censorship and blocking [her] access to a public

forum,” is likewise unavailing. As we have stated, the label a plaintiff

ascribes to a social media platform’s conduct is not determinative of whether

section 230 bars the lawsuit. “[C]ourts focus not on the name of the cause of

action, but whether the plaintiff’s claim requires the court to treat the

defendant as the publisher or speaker of information created by another.

[Citations.] This test prevents plaintiffs from avoiding the broad immunity of

section 230 through the ‘ “ ‘creative’ pleading” of barred claims’ or using

‘litigation strategy . . . to accomplish indirectly what Congress has clearly

forbidden them to achieve directly.’ (Hassell, supra, 5 Cal.5th at pp. 542, 541

(plur. opn.).)” (Murphy, supra, 60 Cal.App.5th at pp. 26–27.)

Not one of the many cases Rutenberg cites supports her effort to style

her claim here as one aimed not at Twitter’s editorial actions, but at its

independently generated content. (See, e.g., Demetriades v. Yelp, Inc. (2014)

228 Cal.App.4th 294, 298, 313 [section 230 did not bar lawsuit based on

9

Yelp’s own claims about the accuracy and efficacy of its “filter” for unreliable

or biased customer reviews]; Doe v. Internet Brands, Inc. (9th Cir. 2016)

824 F.3d 846, 848–849 [section 230 did not bar negligent failure to warn

claim against company that owned Web site and allegedly knew identified

rapists were using information posted on the site, not by the rapists but by

the victim, to lure the victim to the rape site3]; Roommates.com, supra,

521 F.3d at p. 1165 [section 230 did not bar civil rights claim against Web

site that matched people renting out spare rooms with people looking for a

place to live based on the site’s generation and use of a profile form, as the

form and questions therein were “entirely” the site’s “own acts”]; Nunes v.

Twitter, Inc. (N.D. Cal. 2016) 194 F.Supp.3d 959,960, 962, 967 [Twitter was

potentially liable under the Telephone Consumer Protection Act because it

was the “make[r]” of unsolicited calls to recycled cell phone numbers that

received tweets via text message; section 230 did not apply because the

lawsuit was not based on any editorial action by Twitter and sought to stop

Twitter’s own texts to owners of recycled numbers]; Fraley v. Facebook, Inc.

(N.D. Cal. 2011) 830 F.Supp.2d 785, 801–803 [section 230 did not bar lawsuit

based on allegations Facebook took the plaintiffs’ names, photographs, and

3 “In holding that the plaintiff did not seek to hold the defendant liable

as a publisher of third-party content, the Ninth Circuit emphasized that her

negligent failure to warn claim would not require [the defendant] to remove

any user content or otherwise affect how it publishes or monitors such

content. . . . Any alleged obligation to warn could have been satisfied without

changes to the content posted by the website’s users and without conducting

a detailed investigation. . . . A post or email warning that [the defendant]

generated would involve only content that [the defendant] itself produced.”

(Fields v. Twitter, Inc. (N.D. Cal. 2016) 200 F.Supp.3d 964, 973, affirmed on

another ground Fields v. Twitter, Inc. (9th Cir. 2018) 881 F.3d 739, 741.)

Here, in contrast, Rutenberg’s claims are based squarely on Twitter’s

moderating, and ultimately removal, of Trump’s tweets.

10

likenesses without their consent and used the information to create new

content that it published as endorsements of third-party products or services;

in this context, the platform was an “information content provider”].)

Nor does Rutenberg’s assertion that applying section 230 in the instant

case is “contrary” to its purpose “to avoid chilling speech by limiting tort

liability to the speaker of the statement,” advance her case. As our high court

has observed, “another important purpose of section 230 was ‘to encourage

service providers to self-regulate the dissemination of offensive material over

their services.’ [Citation.] The legislative history indicates that section 230

was enacted in response to an unreported New York trial court case.

[Citation.] . . . There, a service provider was held liable for defamatory

comments posted on one of its bulletin boards, based on a finding that the

provider had adopted the role of ‘publisher’ by actively screening and editing

postings. ‘Fearing that the specter of liability would . . . deter service

providers from blocking and screening offensive material, Congress enacted

§ 230’s broad immunity,’ which ‘forbids the imposition of publisher liability

on a service provider for the exercise of its editorial and self-regulatory

functions.’ ” (Barrett, supra, 40 Cal.4th at p. 44, fn. omitted, quoting Zeran v.

America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 331.)

There undoubtedly is tension between the dual purposes of section

230—to limit federal regulation and thereby encourage free speech, on the

one hand, and to encourage the monitoring and control of content that a

private social media platform deems offensive, on the other. (See Barrett,

supra, 40 Cal.4th at p. 56 [“ ‘[t]here is an apparent tension between

Congress’s goals of promoting free speech while at the same time giving

parents the tools to limit the material their children can access over the

Internet,” quoting Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1028,

11

superseded by statute on other grounds as stated in Breazeale v. Victim

Services, Inc. (9th Cir. 2017) 878 F.3d 759, 766–767].) Indeed, Justice

Moreno commenced his concurring opinion in Barrett by observing “there

may be a considerable gap between the specific wrongs Congress was

intending to right in enacting the immunity at issue here and the broad

statutory language of that immunity.” (Barrett, supra, 40 Cal.4th at p. 63

(conc. opn. Moreno, J.) But as Justice Moreno went on to state, “that gap is

ultimately for Congress, rather than the courts, to bridge.” (Ibid.)

In sum, the protection accorded by section 230 is broad and under well

established case law, it bars the instant lawsuit against Twitter.4

DISPOSITION

The judgment if AFFIRMED. Costs on appeal to respondent.

4We therefore need not, and do not, consider any of the other grounds

on which the trial court sustained Twitter’s demurrer.

12

_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Bowen, Christopher, J.*

**Judge of the Contra Costa County Superior Court, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.

A165615, Rutenberg v. Twitter

13