Chuck Johnson’s Twitter Free Speech Suit Is Probably DOA

In 2015, Twitter permanently banned alt-right troll Chuck Johnson, after he tweeted that he wanted to “take out” civil rights activist DeRay McKesson. Johnson now says the San Francisco-based company infringed on his First Amendment rights. But the law may say otherwise.

On Monday, Johnson filed a lawsuit against Twitter, arguing that the company banned him for his political beliefs in what he believes is a clear violation of free speech. It asserts that Twitter is “a privately owned public square,” and that political speech expressed in that public forum ought to receive First Amendment protections. It also argues that Twitter broke the promise to be open and unbiased that it makes to users like Johnson by booting him, which, his lawyer argues, constitutes a breach of civil contract. Johnson is seeking not only damages, but restoration of his account.

Legal experts—including Johnson’s own lawyer, Robert Barnes—largely agree that Johnson’s case is a long shot. “Most cases I take are perceived as underdog cases, and the odds are difficult,” Barnes told WIRED, noting that the public has “never seen Twitter beat yet in court.”

Regardless of the ultimate outcome, though, the framing of his argument makes Johnson’s Twitter case worth watching.

“The lawsuit is unlikely to be successful,” says Neil Richards, a professor at Washington University Law School, who specializes in First Amendment theory. “But that doesn’t mean there aren’t really important questions about the level of power that these platforms have and the effect their policies have upon the state of free expression in our society, and by extension, how our democracy works.”

The Public Square

Johnson’s suit joins a growing number of cases that have debated whether or not social media is the new “public square.” Last year, the Supreme Court issued a decision in Packingham v. North Carolina, a case in which North Carolina sought to ban child predators from using social platforms. The court struck down the North Carolina law, and referred to social platforms as the “modern public square.”

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