Friday, January 12, 2018

Can Satanic Temple Sue Twitter for Religious Discrimination or ToS Violation?

On Wednesday, a Twitter user tweeted a call to burn down the Satanic Temple's international headquarters recently opened in an old funeral parlor in America's witch town, Salem, MA, less than a mile from a place where they used to burn witches in the 17th century. The Satanic Temple's co-founder said that Twitter has permanently suspended his account without any notice after he had asked his followers to report the aspiring arsonist's tweet for violating the platform's Terms of Service. The potential arsonist's account and tweet remain intact. The Satanist now intends to sue Twitter for religious discrimination. Does he have a case?

Twitter is a California company. So, the dispute will be governed by: 1) U.S. federal law, 2) California state law, and 3) Twitter's Terms of Service. Let's examine whether Twitter violated either of the three.

I. Federal Law

The federal Civil Rights Ac of 1964 prohibits religious discrimination in various settings - such as workplace, educational institutions as well as and brick-and-mortar places of public accommodation involved in interstate commerce. In the Satanists' case, there is no employment or education claim and websites (Twitter) are not considered "public accommodations" for the purposes of federal religious discrimination claims. So, it is unlikely that the Temple will prevail under the federal law. What about California law?

II. California Law

Twitter's Terms of Service Section 6 states that California law governs the dispute. California law is broader and more generous to plaintiffs that federal law in religious discrimination cases. The Unruh Act provides: “All persons within the jurisdiction of this state are free and equal, and no matter what their... religion... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” CAL. CIV. CODE § 51(b) (emphasis added). The California Supreme Court has repeatedly ruled that the Unruh Act must be read in “the broadest sense reasonably possible,” covering a broad range of “business establishments.” E.g., that's why there are no "ladies' nights" discounts in bars and nightclubs in California. State courts have ruled that ladies' nights discounts are unlawful gender-based price discrimination prohibited by the.Unruh Act. So are "ladies' days" at car washes.

To establish an Unruh Act violation when there is no disability discrimination involved, the plaintiff must prove "intentional discrimination" based on “willful, affirmative misconduct.” So, the Satanists will have to prove that Twitter intentionally discriminated against them because of religious beliefs and not for some other (legitimate) reasons. Can they prove it?

Twitter can argue that the Satanic Temple does not qualify as religion because it's more of an activist group that does not believe in any supernatural deity. "Satan" is a symbol of rebellion to them, not an actual god. To that, the Temple can respond that: 1) they are registered as a non-profit religious organization, 2) its Facebook Page is filed under self-chosen Religious Organization and Religious Center categories, and 3) the Unruh Act defines "religion" broadly to include "all aspects of religious belief, observance, and practice." There is no express requirement under CA law to believe in a supernatural god in the sky to qualify for legal protection against religious discrimination.

III. Twitter Terms of Service

Twitter's Terms are, naturally, drafted to limit company's liability to the maximum extent legally possible. Sec. 5 states that the service is provided "AS IS" with no warranties of any kind and the maximum amount of Twitter's liability cannot exceed $100. Sec. 4 states that Twitter "may stop (permanently or temporarily) providing the Services or any features within the Services to you or to users generally... We may also remove or refuse to distribute any Content on the Services, suspend or terminate users... without liability to you... We may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms or the Twitter Rules, (ii) you create risk or possible legal exposure for us; (iii) your account should be removed due to prolonged inactivity; or (iv) our provision of the Services to you is no longer commercially viable." (emphasis added).

The aspiring arsonist, on the other hand, did violate the Twitter Rules which form a part of the Terms of Service and prohibit "the targeted harassment of someone, or incit[ing] other people to do so." Likewise, "[y]ou may not promote violence against, threaten, or harass other people on the basis of... religious affiliation." The potential arsonist clearly violated those Rules but her account was not suspended and the hateful tweet is still up as of this writing.

Of course, Twitter is not obliged to terminate accounts for violations; Twitter is free to utilize discretion. Twitter did not violate its own Terms in terminating the Satanist while keeping the arsonist's account intact. However, the fact that Twitter terminated rule-abiding Satanist's account but kept rule violating hater's account intact tends to show that religious discrimination motive could have been the reason for termination.  Twitter can counter that terminating the Satanist was done not for religious reasons but because his presence on the platform was a "risk or possible legal exposure" and provision of the Services to him is no longer "commercially viable" due to Satanists stirring lots of negative emotions on the platform. 

IV.  Conclusion

The Satanic Temple is unlikely to establish a religious discrimination claim under the federal law. They might have a case under state law. Twitter's unequal application of its own Terms tends to weigh towards religious bias.