1
1

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

2

IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO

3

BEFORE THE HONORABLE HAROLD E. KAHN, JUDGE PRESIDING

4

DEPARTMENT NO. 302

5

7

JARED TAYLOR; NEW CENTURY
FOUNDATION;
Plaintiffs,
VS.

8

TWITTER, INC.,

9

Defendant.
____________________________/

6

CERTIFIED COPY
NO. CGC-18-564460

10
11

REPORTER'S TRANSCRIPT OF PROCEEDINGS

12
13

THURSDAY, JUNE 14, 2018
A P P E A R A N C E S
For the Plaintiffs:

14
15
16
17
18
19
20

RANDAZZA LEGAL GROUP, PLLC
BY: Marc J. Randazza
2764 Lake Sahara Drive, Suite 109
Las Vegas, NV 89117
NOAH PETERS, ESQ.
1015 18th St., Suite 204
Washington D.C. 20046
ADAM CANDEUB, ESQ.
442 Law College Building
Michigan State University
East Lansing, MI 48864

21
For the Defendant:
22
23
24

WILMER, CUTLER, PICKERING, HALE AND DOER, LLP
BY: Patrick J. Carome
Thomas G. Sprankling
950 Page Mill Road,
Palo Alto, CA 94304

25
26
27
28

OFFICIAL REPORTER:

MARIA A. TORREANO, CSR #8600, CRR, RMR, CCRR

 2
1

June 14, 2018

9:53 a.m.

2

P R O C E E D I N G S

3

THE COURT:

4

versus Twitter.

5
6
7
8
9
10
11
12
13
14

Okay.

MR. CAROME:

Let's go on the record, line 10, Taylor

Good morning, Your Honor.

Patrick Carome for

defendant, Twitter, Inc.
MR. SPRANKLING:

Good morning, Your Honor.

Tom Sprankling

for defendant, Twitter, Inc.
MR. PETERS:

Good morning, Your Honor.

Noah Peters for

the plaintiff, Jared Taylor and New Century Foundation.
MR. CANDEUB:

Adam Caneub for plaintiff, Jared Taylor and

New Century.
MR. RANDAZZA:

And Marc Randazza for plaintiffs, Your

Honor.

15

THE COURT:

Welcome, everybody.

16

MR. RANDAZZA:

17

MR. CAROME:

18

THE COURT:

19

MR. CAROME:

20

And I put "hearing required" because I hadn't worked my

Thank you.

Thank you, Your Honor.
Interesting case.
Yes.

21

way through all of the issues as of the time that I was

22

required to submit a tentative ruling.

23
24
25

I have now done that.

And, actually, it seems to me, a

pretty simple case.
As to the anti-SLAPP motion, it seems to me this is a

26

classic public interest lawsuit.

Hard to imagine a clearer

27

public interest lawsuit.

28

ruling now orally to deny the anti-SLAPP motion on the grounds

And so I would issue a tentative

 3
1

that first prong has not been established by Twitter.

2

Moving to the demurrer, it seems to me that the way that

3

cases have construed the... I can't remember, it's 230(c)(1) of

4

the Communications Decency Act, it covers precisely the

5

allegations in the first and second causes of actions for

6

violation of the California Constitution and the Unruh Act; and

7

I would now issue a tentative ruling to sustain, without leave

8

to amend, those two causes of action.

9

It seems to me that the Communications Decency Act does

10

not cover in any way, shape, or form the third cause of action,

11

Unfair Competition Law;

12

Nor does the First Amendment bar that claim;

13

And that the loss of the license to be on the Twitter

14

platform and have a Twitter account is a loss of money or

15

property, for purposes of UCL standing requirement, and that

16

there is well pleaded allegations of unlawful and fraudulent

17

conduct, as those terms are used, as predicates for the

18

violation of §17200.

19

As to unlawful, it's a... I don't think it was put exactly

20

this way but it didn't have to be:

Unconscionable contract,

21

not just violative of CRLA, maybe not even violative of CRLA,

22

but violative of California code, Civil Code makes

23

unconscionable contracts impermissible and violating California

24

law.

25

And even if it didn't, common law does, going way back.

26

And, in addition, fairly and liberally construed, the

27

complaint, I think it's the first-amended complaint, excuse me,

28

alleges that there was a misleading statement with regard to

 4
1

wide and free use of the Twitter platform for all types of

2

speech.

3

It seems to me that there's been a sufficient allegation

4

of generalized reliance on that, to get by whatever reliance

5

requirement the courts have now opposed on the 17200 fraudulent

6

prong claims, even though it's a pretty unclear area.

7

that's the last of my three tentative rulings.

8

MR. PETERS:

And

Your Honor, we are willing to accept that the

9

Court's, I thought, tentative ruling, which while it's not --

10

obviously not what we completely agreed to, we are willing to

11

accept it for purposes of --

12

THE COURT:

As to both the anti-SLAPP with -- obviously

13

you're accepting as to anti-SLAPP.

14

first and second causes of action?

15

MR. PETERS:

16

THE COURT:

17
18
19

But as to the demurrer, the

Yes, we are.
So then the question is, are you going to

accept the anti-SLAPP ruling?

It appears not.

So now's your opportunity to argue why this is not a
public interest exception lawsuit.

20

MR. CAROME:

Thank you, Your Honor.

21

First of all, this exception, the public interest

22

exception is to be narrowly construed under the statute.

23

would cite for that the Sierra Club case;

24

And I

Secondly, it is the burden on the plaintiffs to bear -- to

25

establish that.

26

THE COURT:

You're right.

And if I said anything to the

27

contrary, I now amend it that the plaintiffs have shown that

28

their claims arise from matters that are exempt from the

 5
1
2

anti-SLAPP statute.
MR. CAROME:

The exception -- the 425.17(b) exception is a

3

very narrow exception; it requires that the entire suit be

4

brought solely in a public interest.

5

And the word solely, when focused on in the Sierra Club

6

case, it was underscored to emphasize the importance of the --

7

of that requirement.

8
9

Here, this is a suit in which the plaintiffs, while they
purport to be suing on behalf of all 300 million members or

10

more of the Twitter service, in fact have an enormous, as they

11

allege, personal stake in this matter.

12
13
14

They originally brought this suit as a suit for damages
solely on behalf of themselves.
THE COURT:

But you're not seeking to strike the

15

complaint; you're seeking to strike the first amended

16

complaint.

17

MR. CAROME:

That's correct, Your Honor.

But I think that

18

that is relevant in indicating what is the true motivation and

19

what is really going on here.

20

Secondly --

21

THE COURT:

22

MR. CAROME:

How?
I think it reflects that this is a suit about

23

these two plaintiffs with an enormous public stake in this

24

case; they say that their whole enterprise of spewing...

25

white -- you know, white racism to the world depends on

26

Twitter; that they built their enterprise around this.

27
28

THE COURT:

But my question was far more narrow:

The -How does

the filing of the complaint reflect on whether this -- the

 6
1
2
3

first amended complaint is brought solely in a public interest?
MR. CAROME:

I don't want to put a lot of weight on that,

Your Honor.

4

THE COURT:

5

MR. CAROME:

Okay.

I don't see it at all.

All right.

I do think that these plaintiffs

6

are seeking personal relief from personal advantage of the very

7

sort that was at issue in the Sierra Club case; and that they

8

are claiming that their enterprise depends on this access.

9

I think that that renders this case not solely in the public

10

interest, as it must be, according to the California Supreme

11

Court.

12

THE COURT:

And

But the statute seems to take into account the

13

very thing we just said, subdivision one of -- or subdivision

14

(b)(1) of 425.17 says:

15

"The plaintiff does not seek any relief greater

16

than or different from the relief sought for the

17

general public or class of which the plaintiff is a

18

member."

19

MR. CAROME:

20

First of all, those are additional requirements in

Two responses to that, Your Honor.

21

addition to the solely, which also must be met, and which the

22

California Supreme Court made abundantly clear in the Sierra

23

Club case;

24

Secondly, they are in fact seeking relief.

As a practical

25

matter, it goes far beyond the relief that they're seeking for

26

the 300 million or more Twitter users that they purport to be

27

representing.

28

They purport to be representing -- among a tiny, tiny,

 7
1

tiny fraction of Twitter's users who have been excluded from

2

the platform on account of affiliation.

3

THE COURT:

That's not a fair reading of the first amended

4

complaint.

The first amended complaint seeks to vindicate free

5

speech, beginning and end.

6

MR. CAROME:

7

THE COURT:

8

But the relief they -- I'm sorry.
And they seek to do so by having the widest

array of speech on the Twitter platform.

9

MR. PETERS:

10

THE COURT:

That's what this...

(Nods head).
That's hard to read the first amended

11

complaint in any other way.

12

goes to the heart of free speech principles that long precede

13

our constitution.

14

MR. CAROME:

15

THE COURT:

It's very eloquent; it is -- it

Your Honor, (b)(1) -And that's public interest; it's -- to me,

16

it's every bit as much public interest as -- and they invoke

17

this:

18

couldn't hold office because you were a communist.

The people who sought relief against... that you

19

MR. PETERS:

20

THE COURT:

(Nods head).
Or you couldn't do certain things because you

21

were a Jehovah's witness, and so on.

22

about; I'm sure you understand this constitutional heritage as

23

well as I do.

24
25

MR. CAROME:

The relief they are seeking, Your Honor,

is -- is special to them and a small number of other people.

26

THE COURT:

27

MR. CAROME:

28

You know what I'm talking

platform.

No, it isn't.
Injunctive relief to be restored to the

 8
1

THE COURT:

That -- it's for all people to enjoy the

2

speech on the platform; that's the fair reading of the

3

complaint.

4

Now, it may be speech that you and I don't wish to enjoy,

5

but that's not germane to the determination of whether it's

6

public interest.

7

ideology to it; public interest is whether it benefits the

8

public.

9

MR. CAROME:

Public interest doesn't have a flavor of

Your Honor, I think you're asking a question

10

of whether their suit is partly in the interest of public

11

interest.

12

The statute says it must be solely in the interest of

13

public interest.

14

that is beyond or greater than the relief that they're seeking

15

for the public.

16
17

And it also asks:

Are they seeking relief

And they are doing so by seeking injunctive relief that
they get their accounts back on the platform.

18

MR. PETERS:

19

THE COURT:

(Shakes head).
How else could they vindicate the public's

20

interest in the widest possible speech other than to get their

21

account back and that -- other accounts that Twitter closed

22

down?

23

MR. CAROME:

That's not the question that the statute

24

asks, Your Honor.

The question asks -- the statute asks the

25

question:

26

It may be largely in the public interest even.

27

solely in the public interest.

28

And the question is:

Is the action brought solely in the public interest?
It has to be

Are they seeking relief that is --

 9
1
2

and this is the language of the -- of (b)(1):
"Greater than or different from the relief sought

3

for the general public."

4

And they are; they are seeking injunctive relief that is

5

highly specific to them, and to a --

6

MR. PETERS:

(Shakes head).

7

MR. CAROME:

-- few other -- a tiny fraction of other

8

users, who they've not even identified.

9

forward and shown -- that there's really more than just a tiny

10
11
12

They haven't come

handful of people who are subject to this.
But, in any event, they are seeking relief that is
personal to them;

13

It's beyond what they're seeking for the public;

14

It is injunctive relief that the -- Twitter have to put

15
16

them back on the platform.
That is an extraordinary event.

I don't believe anything

17

like that has happened in the history of the Internet; that

18

a -- that a privately-owned government -- privately owned

19

private sector platform has been told:

20

judgment that these users are -- contrary to the basic ethic of

21

the whole platform, you must put them back on.

You must, against your

22

This is an extraordinary question, Your Honor.

23

THE COURT:

I don't see the fact that it hasn't been done

24

before vitiates that it isn't within the exception under 425.17

25

for public interest.

26

I think you and I just see this lawsuit, as characterized

27

by the complaint, differently -- or the first amended complaint

28

differently.

 10
1

Your statement of -- or implied statement that it's wrong

2

to seek to force a private entity like Twitter to include the

3

viewpoints of the plaintiffs, I've already told you

4

tentatively, and it's not been contested:

5

you're right because of a federal statute, as construed by the

6

courts.

7

MR. CAROME:

8

THE COURT:

9

That I think the --

If I -But that's not the issue on the first prong of

anti-SLAPP; the first prong on anti-SLAPP is not a merits-based

10

analysis; it is a how is the claim or, in this case, three

11

claims, pled analysis?

12

MR. CAROME:

I agree with that, Your Honor.

13

But I would say, however, though, that the -- the really

14

extraordinary personal relief that is being sought here by

15

these two plaintiffs does, I think -- it's extraordinary in

16

nature.

17

is in fact highly indicative that this is not a lawsuit brought

18

solely in the public interest.

The fact that it is very specific to these two people

19

It may be, as Your Honor reads the statute, partly, even

20

largely brought in the public interest, within the meaning of

21

this exception.

22

And I would ask the Court to reconsider that aspect of its

23

ruling.

24

THE COURT:

But it is not solely in the public interest.

You and I are going to just agree to disagree.

25

To me, the only way you can vindicate the speech rights of

26

others is to allow the speaker to speak.

27

Okay.

So let's move onto the UCL claim.

28

MR. CAROME:

Yes, Your Honor.

 11
1
2

THE COURT:

You wish to contest the tentative ruling as to

that?

3

MR. CAROME:

4

THE COURT:

Yes, definitely.
And I recognize I may have ruled on certain

5

aspects of that claim in ways that the plaintiffs themselves

6

did not identify.

7

heroic effort on everybody's part to keep within page limits,

8

there was not all that much written about UCL generally.

9
10
11

But I also recognize that because of the

And, to be blunt:

I've seen a lot of UCL claims.

This is

something I'm pretty familiar with.
MR. CAROME:

Your Honor, yes, Twitter strongly disagrees

12

with that tentative ruling and would ask the Court to not make

13

it and to rule the other way on that point.

14

First of all, the... there would have to be a violation of

15

another law.

16

place:

17

These plaintiffs -- well, let me start in another

First of all, the UCL applies to only acts or practices

18

undertaken by any person in a transaction intended to result,

19

or that results in the sale or lease of goods or services to

20

any consumer.

21
22

THE COURT:

MR. CAROME:

24

THE COURT:

Yes, I'm sorry.
Which was the law that was -- or the statute

that was explicitly identified in the complaint --

26

MR. CAROME:

27

THE COURT:

28

What

you just read from was from the Consumer Legal Remedies Act.

23

25

That's not accurate, but you're right.

Yes.
-- as the basis for the invocation of the

illegal prong of the UCL.

 12
1

MR. CAROME:

2

THE COURT:

That's... (nods head).
But the same first amended complaint said --

3

what they were really complaining about was the

4

unconscionability of Twitter's terms of service.

5

And unconscionability has a separate legal source in

6

California law.

7

Code, but I could find it for you pretty quickly, if you want.

8
9

I can't remember the provision of the Civil

And it also has a lot of common law origins.

Let me see

if I could find it for you.

10

So the Plaintiff's reference to the California...

11

MR. CAROME:

12

THE COURT:

CRLA.
CRLA, the Legal Remedies Act was, in my

13

view... unnecessary and didn't capture the legal source that

14

they needed to capture.

15

MR. CAROME:

So, just so I understand, that Your Honor is

16

agreeing with Twitter's position that the CRLA is not an

17

appropriate source of a violation of law?

18

that?

19

THE COURT:

Am I understanding

I didn't even reach that issue.

I think

20

you're probably right, but I didn't reach the issue because I

21

know about unconscionability law, as stated in our Civil Code.

22
23
24

MR. CAROME:

Well, then, let me make a couple of

statements about unconscionability.
Unfortunately, I am not -- haven't looked at that part of

25

the code, and I would in -- in the first instance, if the Court

26

is not going to, based on my other arguments on this point,

27

rule otherwise on this issue, I would request that the parties

28

be entitled to have supplemental briefing on this additional

 13
1

unconscionability point that was not raised in the plaintiff's

2

papers.

3

MR. PETERS:

4

THE COURT:

(Shakes head).
And the reason I'm not going to do that, at

5

least I'm unlikely to do it, is because the illegal prong was

6

only one-of-two prongs that were asserted as the basis for UCL

7

liability; it was also the fraudulent prong was alleged as a

8

separate and independent basis.

9

entirety of a cause of action, not to a portion thereof.

10

MR. CAROME:

And a demurrer goes to the

Understood, Your Honor.

I am going to have

11

some things to say about the fraudulent prong, as well.

12

we could stick with the unconscionability prong for a moment.

13
14

THE COURT:

Would you like me to find the provision of the

California Civil Code on unconscionability?

15

MR. CAROME:

16

THE COURT:

17

moment.

That would be helpful, Your Honor.
Okay.

MR. RANDAZZA:

19

THE COURT:

20

MR. CAROME:

22

I will do that.

It will take me a

I'll need to pull up Westlaw...

18

21

But if

Your Honor, I believe it's 1670.5.

You're quicker than I am...
I have that language in front of me, Your

Honor.
I would renew my request for supplemental briefing on this

23

point.

24

case that I think has some important issues and would warrant,

25

you know, careful consideration of an issue of this importance.

26

This is... is very much out of the blue in terms of a

THE COURT:

Why?

The doctrine of unconscionability is

27

widely known, and California law on unconscionability pretty

28

much conforms to national law.

 14
1

There's both procedural and substantive elements to it;

2

They were -- both procedural and substantive elements were

3
4

alleged in the first amended complaint;
It was a pretty pedestrian unconscionability analysis set

5

forth -- I'm not criticizing it; I'm just saying it wasn't

6

particularly novel or unique or unusual that was set forth in

7

the first amended complaint.

8
9
10
11
12
13

I'm not sure why you need it, but I'll revisit that in the
event that you're able to persuade me that the fraud prong is
not sufficiently alleged.
MR. CAROME:

I'd like to address unconscionability a bit

further, if Your Honor will permit.
I don't think -- we have to actually have a particular

14

allegation of a potentially unconscionable contractual

15

provision here.

16

I would submit that they are relying principally on

17

extraordinarily broad, general statements that we are the --

18

Twitter back, you know, six or seven years ago described itself

19

as a free speech wing of the free speech party.

20
21
22

THE COURT:

You are confusing, I believe, the fraudulent

prong allegations with the unlawful prong allegations -I'm sorry, sir.

It's disturbing to me when you're shaking

23

your head.

I know you're trying to agree with me, but it's --

24

I don't need that agreement.

25

MR. PETERS:

I apologize.

26

MR. CAROME:

What are the unconscionable provisions that

27
28

Your Honor possibly sees here?
THE COURT:

I --

I can tell you what's alleged, and I believe

 15
1

adequately so, something to the -- I could get the first

2

amended complaint to quote it exactly, but something to the

3

effect that Twitter can, at any time, for any reason, or no

4

reason, pull any account.

5

Have I stated that correctly?

6

MR. PETERS:

Yeah; that's right.

7

MR. CAROME:

There is language to that effect, Your Honor;

8

I would submit that that's not... remotely unconscionable for

9

a on-line platform, such as Twitter, which is completely free,

10

given to the world for free, that requires users -- it has a

11

gating --

12

THE COURT:

13

MR. CAROME:

And --- requirement, and let's users in under

14

certain conditions, it is absolutely permissible and, indeed,

15

subject to First Amendment rights and editorial decision that a

16

platform that is engaged in the distribution of speech may, for

17

any reason, just like a newspaper editor could, for any reason,

18

choose not to run a letter to the editor that it receives.

19

That's not unconscionable; that's not remotely

20

unconscionable; that's the way systems work.

21

and so I would certainly --

22

THE COURT:

That's the way --

So let me explain to you why I see differently

23

and the rules that I believe I am bound by in making my

24

determination:

25

First, I am required to liberally construe the complaint.

26

It's right there in the California Code of Civil Procedure.

27

And, if you want, I can cite that for you, as well;

28

Second, I need to draw whatever reasonable inferences I

 16
1

can draw in favor of the pleading that is being challenged.

2

And in doing both of those things, and liberally

3

construing the complaint, and in drawing reasonable inferences

4

in its favor, I envision or I believe that the complaint

5

alleges something along the lines of:

6

Twitter is the largest communication source in the world.

7

And the way to get your word out and the way to be heard

8

in the modern era, particularly with regard to such important

9

matters as being able to petition the elected leaders and

10

others who are involved in government, for redress, is to be

11

able to be on the Twitter platform.

12

And for Twitter to know that and nonetheless impose

13

language, as it did here, an otherwise prolix document that's

14

not highlighted, and done on an adhesion contract basis, and on

15

a take it or leave it basis, it is procedurally unconscionable

16

in a large measure.

17

And when you have something that is procedurally

18

unconscionable in a large measure, you only need, under

19

California law, to have substantive unconscionability in a

20

small measure.

21

And it's substantively unconscionable to deprive people of

22

the most important platform to speak and to be able to seek

23

redress of their legislators.

24
25

Now, all of that may be wrong, but that's why we have
lawsuits, is so that the other side can show it's wrong.

26

But in a demurrer, it's essentially a one-sided setting.

27

I take as true not only what's alleged, but what's reasonably

28

inferable from what's alleged.

And all of that I need to

 17
1

liberally construe.

And I think I have done that in the way I

2

have stated plaintiffs' position.

3

Now, you may, and others may completely disagree with it,

4

and say that there are competing concerns, but those competing

5

concerns need to be developed and put forth either by way of

6

evidence at trial, or perhaps in declarations for a summary

7

motion.

8
9

MR. CAROME:

With all due respect, Your Honor, I'd like to

address two... queries as to why I submit this is wrong.

10

First of all, now that I see that the Court is focusing on

11

this reservation of a right to remove content for any reason or

12

no reason at all --

13
14
15

THE COURT:

It's not what I -- that's not what I came up

with; it's in the first amended complaint.
MR. CAROME:

Thank you.

Now that I see that's what the

16

unconscionability is about, I -- let me just say that, of

17

course, that is a right that Twitter would have had had it not

18

said a word about that in its -- in its contractual documents.

19

A newspaper doesn't have to say that.

20

So -- but the First Amendment and §230 both override this

21

cause of action that the Court is seeing here and that the

22

plaintiffs apparently have pled.

23

The... a communications platform, such as Twitter, has a

24

First Amendment right with respect to the content that it

25

chooses or doesn't choose to distribute.

26

case, for example.

27

briefs.

28

That's the Turner

There's many other cases cited in our

The plaintiffs here concede that Turner accurately

 18
1

describes Twitter.

2

under --

3
4

THE COURT:

So it's a First Amendment right here.

So

I must have missed it; I didn't see a

concession.

5

MR. PETERS:

(Shakes head).

6

MR. CAROME:

I would ask the Court to go and look again at

7

the papers to that effect.

8

THE COURT:

9

MR. PETERS:

10

13

Please show me -Your Honor, we made, I believe, no such

concession; we --

11
12

We talk about it in our reply.

THE COURT:

I think I'm -- I think I can handle this right

now.
MR. CAROME:

So, Your Honor, in any event, even if they

14

didn't concede it, it's correct that a communications platform

15

has -- with respect to distribution, has First Amendment

16

editorial rights over its -- over what it does and does not

17

distribute.

18

§230 gives, as the California Supreme Court said in

19

Barrett, gives absolute immunity to any decision that can be

20

boiled down to deciding whether or not to publish content.

21
22
23

That is exactly what is going on here.

The -- that is

exactly the decision that's at issue here.
THE COURT:

You're misconstruing, in my view, what the

24

allegations are of the third claim.

25

nothing to do with viewpoint discrimination, which is what the

26

first and second claims do.

27
28

The third claim has

The first -- the third claim says that it is
unconscionable for Twitter to reserve to itself the right to

 19
1

revoke anybody's ability to be on the platform for any reason

2

at all, including a little girl who said that she wanted to be

3

on Twitter to be able to send a message to Santa Claus.

4
5

Any -- it doesn't matter; it doesn't have to have anything
to do with content; it's any reason or no reason.

6

MR. CAROME:

That's correct, Your Honor.

7

And a book store, or a newspaper editor, or a cable

8

platform has a First Amendment right to make good, bad,

9

horrible decisions about who and who does not get to speak on

10

its platform and what content does and does not get to be on

11

its platform.

That is what the First Amendment is about.

12

And newspaper editors are not called into court to explain

13

why didn't you accept that little girl's note to Santa Claus as

14

a letter to the editor?

They have that right.

15

So if -- Twitter, in fact --

16

THE COURT:

You are, in my view, going well beyond what a

17

demurrer can do.

18

Communication Decency proceedings into a matter where the

19

Communications Decency Act doesn't have any applicability.

20
21

And, also, you're trying to import

But -- I understand it.

I should let you speak and we'll

proceed.

22

MR. CAROME:

23

Well, I tried to persuade you.

24
25

All right.

Thank you, Your Honor.
It looks like I'm not

going to be able to.
I would very much request that the Court grant

26

supplemental briefing on this unconscionability issue, which

27

was brand new, not briefed.

28

helpful thing to do in terms of assuring that an important

And I think that would be a very

 20
1

decision is being made well here.

2

THE COURT:

Okay.

3

MR. CAROME:

Yes.

4

Now, this is, I guess, where I was going earlier, and you

5

Do you want to address the fraud prong?

steered me correctly.

6

So...

7

(Interruption.)

8

(Short break taken.)

9

THE COURT:

10

MR. CAROME:

11

indulgence.

Okay.

So let's go back on the record.

Thank you, Your Honor.

Thank you for your

Appreciate it.

12

THE COURT:

No problem.

13

MR. CAROME:

14

One, as to the -- where the plaintiffs cite Turner and

First of all, just catching back up.

15

treat it as analogous to the Twitter situation, we discussed

16

that point on page 11 of our reply in support of the motion to

17

strike.

18

they cite the Turner decision.

19

And we cite to the demurrer opposition, page 8, where

That's just -- I don't think the fact that they concede

20

that Turner is -- applies to Twitter is that significant.

21

think the more important point is that Turner of course applies

22

to a distributor of speech, such as Twitter, and extends the

23

First Amendment to it.

24

THE COURT:

25

MR. CAROME:

I

Okay.
The second point I'd like to raise is that

26

the -- as cited in defendant's demurrer, §230 has been held to

27

apply to UCL actions.

28

10 versus CCBill case.

And, in particular, that's the Perfect
And -- which we cite at page 10 of our

 21
1

memorandum in support of demurrer.

2
3
4
5

THE COURT:
case?

Is it Barnes?
MR. CAROME:

Barnes.

THE COURT:

7

MR. CAROME:

9
10

THE COURT:

12

THE COURT:

15
16

But, yeah, Barnes versus Yahoo! is a Ninth

Doesn't Barnes say that the Communications

Decency Act could not apply to a contract estoppel principle?
MR. CAROME:

14

Right.

Circuit case.

11

13

This... there is a Ninth Circuit case named

That's not what I'm referring to here.

6

8

But what is the name of the Ninth Circuit

That's correct, Your Honor.
Isn't that what we really have here, is a

contract principle, rather than...
MR. CAROME:

No, Your Honor; I don't think that that's

correct.
And, you know, it's very important, and Barnes is perhaps

17

one of the best cases on this point.

18

have said this:

19

labeled; the Court is to look at to what is the essence of the

20

claim; what is it asking the defendant to do.

21

THE COURT:

22

MR. CAROME:

And many, many §230 cases

The Court is not to look at how the claim is

Correct.
And here this claim goes directly to whether

23

or not Twitter may or may not remove, or block, particular

24

content.

25

THE COURT:

No.

It goes directly to whether Twitter may

26

or may not have an unconscionable provision in its terms of

27

service.

28

MR. CAROME:

Well...

 22
1
2

THE COURT:

That's the illegal prong allegation of the

third claim.

3

MR. CAROME:

Certainly it has got to be the case that a

4

First Amendment speaker... a First Amendment actor, such as

5

Twitter here, if anything that the First Amendment protects,

6

it's the right of that First Amendment-protected actor to make

7

a decision about what to say, whose speech to distribute, for

8

any reason whatsoever, or no reason at all.

9

And so that -- whether or not Twitter said in its terms of

10

service that it could block or remove speech for any reason at

11

all or no reason at all, is simply actually being up front with

12

the users about a right that Twitter, as a First Amendment

13

actor, already has.

14
15

THE COURT:

you come up with an answer to the complaint.

16
17

MR. CAROME:

And there is

And, in fact, §230, as both California Supreme Court and
many, many others courts -- we cite, for example --

20
21

This is a pure question of law.

no facts to be developed to further address this point.

18
19

That would be your position, presumably, when

THE COURT:
you:

Sir, let me, just to be really candid with

You are way overstating the law.

22

Does Twitter have the right to take somebody off its

23

platform if -- it does so because it doesn't like the fact that

24

the person is a woman?

25

Title 7?

26

laws, or the disability discrimination laws?

27
28

Or gay?

Or would be in violation of

Or would be in violation of the age discrimination
Of course not.

And this provision says, "for any reason or no reason."
mean --

I

 23
1

MR. CAROME:

2

THE COURT:

3

Your position -- your absolutist position doesn't fly, at

4

Give me a break.

least in a setting such as a demurrer.

5
6

Certainly, Your Honor --

MR. CAROME:

Your Honor, I -- I think this is a question

of law; it's not a question of fact.

7

THE COURT:

8

MR. CAROME:

So what is the answer?
And, in fact, as to Your Honor's question

9

about could a First Amendment speaker choose by gender, or age,

10

or something like that, in fact -- I mean Twitter would never,

11

ever, ever do that; it's totally contrary to everything it

12

does.

13

But, in fact, the First Amendment would give Twitter the

14

right, just like it would give a newspaper the right, to choose

15

not to run an op-ed page from someone because she happens to be

16

a woman.

17
18
19
20

Would Twitter ever do that?

Absolutely not, not in a

million years.
Does the First Amendment provide that protection?
Absolutely it does.

21

THE COURT:

22

MR. CAROME:

23

THE COURT:

What case says that?
That is -What case says that a entity like Twitter can

24

discriminate on the basis of religion, or gender, or sexual

25

preference, or physical disability, or mental disability?

26
27
28

MR. CAROME:

With respect to the content that it

distributes?
THE COURT:

With respect to whether the person can have an

 24
1

account or not.

2

MR. CAROME:

This is a question about -- this is not a

3

business relationship; this is a question about whose speech am

4

I required to distribute?

5

THE COURT:

Again, mistaken.

It is -- the allegation is

6

as to a relationship with a licensee that can be terminated

7

pursuant to the terms of service, for any reason or no reason.

8

That's the allegation.

9
10

I don't know whether it's true or not.
accept it as true.

11
12
13

I'm required to

MR. CAROME:

Well, it's true that that provision is in the

toss.
THE COURT:

So is -- your position is absolutist; that

14

Twitter has an absolute First Amendment right to remove anybody

15

from its platform, even if doing so would be discriminatory on

16

the basis of religion, gender...

17
18
19
20
21

MR. CAROME:
case, for example.

Yes, Your Honor.

Let me cite the Hurley

That's the parade case.

The -- a parade sponsor did not want to include gay people
as part of its large St. Patrick's Day parade.
Totally hateful, obnoxious discrimination by that parade

22

operator, didn't want to support gays, didn't want to have gays

23

be part of its -- its multi-faceted platform of this parade.

24
25
26
27
28

The Supreme Court said of course the -- the parade sponsor
can do that.
So that would be one case that comes to mind, as to why
First Amendment actors can make what seem like hateful choices.
Now, the -- Twitter doesn't do that, but that is what the

 25
1

First Amendment guarantees to First Amendment actors.

2

Twitter, as the Turner case shows, is exactly that.

3

And

A book store could not be required to carry books that it

4

doesn't want to show, for any reason, and no one gets to ask.

5

And they don't have to say in their contracts with the people

6

they buy the books from that, you know, we have a right to turn

7

away any book at all and not sell any book at all.

8

That's just the law.

9

THE COURT:

If --

I think you are mistaken.

I think it is a

10

poor analogy to analogize Twitter, which is alleged in the

11

complaint, in the first amended complaint to be the largest

12

communication platform in the world, to a book store.

13

I think we have things that -- we have a different

14

situation.

I understand your position.

15

respectfully disagree with it.

I'm going to just

16

So I'm going to ask you to move on.

17

MR. CAROME:

18

So just... I guess what's left, then, is the fraudulent

19

All right.

Thank you, Your Honor.

prong.

20

THE COURT:

21

MR. CAROME:

22

THE COURT:

Correct.
Of the Unfair Competition Law.
And, in effect, I really don't need to get

23

there because I've already determined that the illegal prong

24

has been sufficiently alleged with standard demurrer.

25

you do want to discuss the fraudulent prong, I'm happy to have

26

you do so.

27
28

MR. CAROME:

Yes, certainly.

But if

I mean to establish -- you

know, to plead to overcome a demurrer for a claim of -- of a

 26
1

fraudulent claim, they would -- plaintiffs would have to

2

identify particular statements that are potentially fraudulent.

3
4
5

THE COURT:

Misleading to the public.

Deceptive to the

public.
MR. CAROME:

Yes.

And I don't think that the very

6

highly-general statements that are discussed in the complaint,

7

things like Twitter -- a Twitter executive saying, "Twitter is

8

the free speech wing of the free speech party."

9

factual statement at all; it's not a promise that we'll never

10
11

That is not a

take down your account.
The statement -- you know, they point to a statement made

12

in the Twitter rules some six or seven years ago, which is no

13

longer there, it hasn't been there for years, that Twitter

14

would not censor user content except in specified

15

circumstances.

16

And then there's a long, long list of circumstances,

17

including -- that's in this document that, you know -- that's

18

in the rules that were presented to the users.

19

promise that Twitter would never take down content.

20

And --

21

THE COURT:

That was not a

The UCL fraud prong is not -- doesn't require

22

a promise; it requires a statement that misleads or deceives

23

the public.

24

MR. CAROME:

That was not a misleading or deceptive

25

statement, as a matter of law, for Twitter to have said that

26

six years ago in rules, that it said it could change, right --

27

you know, right in that same paragraph, it said these rules can

28

change.

 27
1

And that was not a promise that, for a -- six, seven,

2

eight years, everybody who's come onto the platform, no matter

3

what they do, no matter whether they're white supremacist or

4

not, contrary to the Twitter's, you know, evolved standards,

5

that was not a promise that we never can take your account

6

down.

7

It wasn't -- and that is not sufficient to be, as a matter

8

of law, a misleading statement within the meaning of the

9

statute.

10

THE COURT:

So maybe I misrecollect the third cause of

11

action but, in substance, my recollection is that plaintiffs

12

attribute to Twitter statements to the effect that a Twitter

13

platform is open to everybody of all viewpoints except those

14

who... I can't remember the exceptions but they --

15

MR. CAROME: Yeah --

16

THE COURT:

Trademark violation, incite violence.

And

17

that Twitter... that's misleading because that's not true;

18

Twitter is not open to everybody who -- regardless of

19

viewpoint; it's not a complete free speech platform; it is

20

something else.

21
22

That's the allegation.

I'm not -- I don't know whether

they're true or not.

23

At this point I have to assume they're true.

24

MR. CAROME:

25

THE COURT:

26

MR. CAROME:

There has to be a specific statement to -There does.
And if you look -- either these statements

27

are these vastly generalized statements like, "Twitter is the

28

free speech wing of the free speech party," or there are

 28
1

particular statements in the rule, such as Twitter -- you know,

2

six years ago, Twitter would not censor user content except in

3

specified circumstances.

4

and it talked about Twitter's free to change the rules.

5

And then it talked about the rules

Think about this, Your Honor:

The notion -- Congress in

6

230, which I'll return to, because I think it bears on this.

7

The main point of 230 was to encourage platforms, exactly such

8

as Twitter, to engage in self-regulation of the content on

9

their...

10
11

THE COURT:

There's nothing in 230 that gives license to

mislead.

12

MR. CAROME:

Your Honor, you're suggesting that a general

13

statement six years ago somehow binds Twitter -- when does that

14

stop?

15

When does that -- when does that stop?
Twitter can't evolve, as the world changes vastly, and

16

sees that white supremacy is having a major problem on its

17

platform, it can't act to control that?

18
19

THE COURT:

You're seeking -- I didn't say it couldn't; I

just --

20

MR. CAROME:

21

THE COURT:

As a matter of law.
You're recording all kinds of fact that I

22

don't have in the first amended complaint.

23

allowed to look at the first amended complaint.

24

And I'm only

That's why, once the pleadings -- a demurrer is overruled,

25

as I'm inclined to do with the third cause of action here, the

26

defense gets to put its own position up, such as the various

27

things that you're saying now.

28

Nothing about my overruling would preclude any of the

 29
1

arguments that you're making, if you wish to -- to make them,

2

based on evidence or...

3

forth.

4

whatever material you want to put

But that's not what a demurrer is; a demurrer looks solely

5

at the complaint and anything that is judicially noticeable.

6

But you do raise a good point, and that point I need to

7

address.

8

You're saying that -- these are my words, not yours, but

9

and I'm trying to help you out here a little bit, that all we

10

have in the third amended -- in the third cause of action are

11

either statements of opinion that are -- couldn't possibly be

12

actionable as misleading.

13

MR. CAROME:

14

THE COURT:

15
16

Correct.
Or such generalized, vague statements that no

reasonable person could possibly be misled by.
That's -- I'm going to construe your argument that way,

17

which it does conform to both demurrer law and UCL fraudulent

18

prong law, and then ask the plaintiffs to turn to their

19

pleading, which is being challenged, and tell me where there

20

are non-opinion statements or non-generalized statements that

21

couldn't possibly deceive anybody.

22

MR. CAROME:

Your Honor, I would ask you to have them

23

indicate, you know, exactly where that is.

24

statements in that same document that they're going to point

25

you to that also say Twitter can remove content for any reason?

26

And are there other

And can that -- does that eliminate any possibility of

27

that being a misleading statement when the document is looked

28

at as a whole?

 30
1

THE COURT:

I understood the reference in the first

2

amended complaint to Twitter can remove any account for any

3

reason or no reason to be in support of the illegal prong, not

4

the fraudulent prong.

5

MR. CAROME:

But I think it also undoes the any possible

6

fraudulent -- if it is stated, in black and white, to the user

7

from the get-go that any content can be removed, and that

8

Twitter has the right to do that from the get-go, I would

9

submit that you have to read whatever statements they're

10

pointing to as making a contrary statement, in light of the

11

full document.

12

THE COURT:

No, sir.

That would be something that you

13

would bring to bear in part of your defense -- or affirmative

14

defense.

15

I take the statements, as identified by the pleader, and

16

determine whether that satisfies the misleading requirement for

17

the... fraudulent prong.

18

But so let me ask plaintiffs.

Where is there, in the

19

first amended complaint, allegations of statements attributable

20

to Twitter that are, other than opinion, and other than

21

generalized statements that no person could -- no reasonable

22

person could be misled by?

23

MR. RANDAZZA:

Your Honor, just prior to that, my

24

colleagues here have not yet been admitted pro hac vice.

25

have moved for that.

26
27
28

We

The defense have stipulated to it.

I just don't want to pollute the proceedings here without
handling that formality.
THE COURT:

Typically that's handled by way of

 31
1

application.

You are telling me there is a pending application

2

for which there will be no objection?

3

MR. RANDAZZA:

4

THE COURT:

Yes.

I will not grant the application today,

5

because I don't have it before me, but I will, in anticipation

6

of granting it, allow the pro hacs to speak.

7

MR. PETERS:

8

In paragraph 40 of the first amended complaint on page 14,

9

Okay.

Thank you, Your Honor.

we plead --

10

THE COURT:

I'm sorry.

11

MR. PETERS:

Page 14.

12

THE COURT:

One four.

13

MR. PETERS:

14

One four, paragraph 40:

"The Twitter rules as they existed when

15

Mr. Taylor...

16

THE COURT:

17

MR. PETERS:

18

THE COURT:

19
20
21

What page?

Give me a line, please.
Sure, 40 -- it's page 14, line 12.
So there is quoted material from line 13 to

line 17?
MR. PETERS:

From -- this is page 14, I think it's line 19

to line...

22

MR. RANDAZZA:

23

MR. PETERS:

24

THE COURT:

You're right, Your Honor; yes.

Yes, correct, correct.
So that's where -- that's your first

25

identification of a actionable statement, assertedly actionable

26

statement under the fraudulent prong of UCL?

27

MR. PETERS:

28

THE COURT:

Correct.
So let's stop there and let's everybody read

 32
1

it...

2

MR. PETERS:

3

THE COURT:

4

MR. PETERS:

6

THE COURT:

8
9
10

It seems to me that is more than sufficient to

be a non-opinion and non-generalized statement.

5

7

Okay.

Correct, Your Honor.

It is --

When you're ahead in this courtroom, it's

generally a good idea to allow the other side to talk.
MR. CAROME:

Your Honor, and that statement is a quote

from exhibit D to the fact, which I would -- if possible, I
would ask the Court to turn to.

11

THE COURT:

12

MR. CAROME:

I have it here.
Okay.

So I mean that -- just below, you

13

know, in the very next paragraph of the statement -- and I -- I

14

submit, Your Honor, that... you know, this is part of the

15

record, this is part of the complaint.

16

Twitter -- in the bottom of the next paragraph:

17

They say that

"We may need to change these rules from time to

18

time and reserve the right to do so."

19

And we also... if you look to the third page of exhibit D,

20
21

it says, in bold:
"Twitter reserves the right to immediately

22

terminate your account, without further notice, in

23

the event that, in its judgment, you violate these

24

rules or the terms of service."

25

And so that's all in this very short set of rules.

26
27
28

It's

part of the record.
I would submit that, as a matter of law, that this
statement was not misleading to any reasonable reader, and that

 33
1

the reader of this would say, yes, there are -- we may remove

2

things in accordance with rules;

3
4

We may change those rules, as things evolve.

And, boy,

have things evolved over the past five or six years;

5

And that Twitter has, in bold, said that we reserve the

6

right to immediately terminate your account, without further

7

notice, in the event that, in its judgment, you violate these

8

rules or the terms of service.

9

I would submit that, as a matter of law, nothing

10

misleading was stated there, and that the Court should rule to

11

that effect now.

12

THE COURT:

I disagree.

13

MR. CAROME:

Except...

14

THE COURT:

15

MR. CAROME:

16
17

It says:

"Will not censor."

Right.
"Except in circumstances..." And those

circumstances are described.
THE COURT:

And none of those circumstances cover

18

viewpoint discrimination except in the way in which the

19

plaintiffs are pleading it.

20

MR. CAROME:

Well, that's not true; there are many

21

viewpoint discriminations that would not stand up under First

22

Amendment law that are stated just on the face of this

23

document.

24

THE COURT:

25

MR. CAROME:

26

THE COURT:

In the way that the plaintiffs are stating -I see.
-- that this is misleading, I agree that

27

there's viewpoint discrimination, violence -- to discriminate

28

based on violence, or threats of violence is viewpoint

 34
1

discrimination.

2

saying that this is misleading.

3

MR. CAROME:

But I said in the way in which plaintiffs are

Yes.

But, also, Your Honor, it's made very

4

clear that these rules can change, and they're in the control

5

of Twitter.

6

Twitter has since -- and it announced it in advance, that

7

it came up with an additional rule against violent extremist

8

groups, whether you're... spewing their content, or you're

9

affiliated with them.

10
11

A totally permissible, honorable rule

for it to make, in its judgment.

It did that.

That was completely in conformity with this statement and

12

what users were told.

13

law, that could be misleading here.

14

I would submit.

15

THE COURT:

16
17
18

There's nothing that -- as a matter of

Okay.

Again, I think you and I are going to

have to agree to disagree.
We're only on a demurrer.

I have to accept the well-pled

allegations.

19

Anything more?

20

Tentative ruling that I stated orally is confirmed.

21

I'm going to ask that counsel for the plaintiffs submit an

22
23

order on the anti-SLAPP motion;
I'm going to ask that counsel for Twitter submit an order

24

on the demurrer, because I think, fairly construed, the parties

25

to whom I've directed to prepare the orders are the prevailing

26

parties on those two motions.

27
28

Please work together to make sure, if you can, that
there's no disagreement.

If not, submit competing orders, and

 35
1

I will sign the one -- or edit the one that I think is the more

2

faithful to my rulings.

3

Good luck to everybody.

4

How long -- oh, no.

5

how long does Twitter need to file an answer?

6

MR. CAROME:

7

THE COURT:

8

MR. RANDAZZA:

9

THE COURT:

10

MR. CAROME:

11

THE COURT:

12

Thank you.

13

MR. CANDEUB:

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

There's no leave to amend here; so

( 10:54 a.m.)

I would request 30 days, Your Honor.
Any reason why not?
No.

Thirty days you have.
Thank you, Your Honor.
Please put that in the demurrer order.

Thank you, Your Honor.

 36
1
2

STATE of CALIFORNIA

)
)
COUNTY of SAN FRANCISCO )

3
4
5
6
7
I, MARIA ANTONIA TORREANO, DO HEREBY CERTIFY:

8
That the foregoing is a full, true and correct transcript

9
of the testimony given and proceedings hereinbefore entitled;

10
That it is a full, true and correct transcript of the

11
evidence offered and received, acts and statements of the

12
court, also all objections of counsel and all matters to which

13
the same relate;

14
That I reported the same in stenotype to the best of my

15
ability, being the duly-appointed, qualified and official

16
stenographic reporter of said court, and thereafter had the

17
same transcribed by computer-aided transcription, as herein

18
appears.

19
20

June 14, 2018
DATE:______________________

21
22
23
24
25
26
27
28

Maria
Torreano
Digitally signed
by Maria Torreano
Date: 2018.06.14
17:32:05 -07'00'

______________________________________
Maria A. Torreano, CSR, CRR, RMR, CCRR
Certificate No. 8600