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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
ROBERT EUGENE WILSON,
Plaintiff,
v.

Case No. 3:20-cv-00054

TWITTER,
Defendant.
PROPOSED FINDINGS AND RECOMMENDATIONS
Pending before the Court are Plaintiff’s pro se Complaint, (ECF No. 2), and
Defendant’s Motion to Dismiss, (ECF No. 14). This matter is assigned to the Honorable
Robert C. Chambers, United States District Judge, and by standing order is referred to
the undersigned United States Magistrate Judge for the submission of proposed findings
of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
For the reasons that follow, the undersigned RECOMMENDS that Defendant’s
Motion to Dismiss, (ECF No. 14), be GRANTED; and that the Complaint, (ECF No. 2),
be DISMISSED, with prejudice, and removed from the docket of the court.
I.

Relevant Facts
Plaintiff, Robert Eugene Wilson (“Wilson”), filed a complaint in this Court on

January 23, 2020. (ECF No. 2). In the complaint, Wilson assets that Defendant, Twitter,
Inc., (“Twitter”), “has on more than 2 times = 3 times [sic] closed my account based on
my freedom of speech and or heterosexual expressions, and or whatever excuses.” (Id. at
4). Wilson explains that he operated a Twitter account under the username
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“[@]iwontBEquiet.” (Id.). On December 28, 2019, Wilson’s account was suspended by
Twitter. Wilson was informed that his “account has been suspended and will not be
restored because [it] was found to be violating Twitter’s Terms of Service, specifically the
Twitter rules against hateful conduct.” (Id.).
On January 1, 2020, Wilson elected to create another Twitter account under the
username “@Roberte_Wilson.” (Id. at 5). However, after Wilson completed the
“description profile” associated with the new account, but before he had submitted any
content under the new username, the account was suspended by Twitter. (Id.). Wilson
then resolved, “in defiance,” to create a third Twitter account, “@AintQuiet.” (Id.). This
account was likewise suspended before Wilson was able to create any content. Wilson did
not communicate with Twitter regarding these suspensions, but believed Twitter was
“targeting” him. (Id.). Wilson then created a fourth and final Twitter account employing
the username “@iNotQuiet,” and submitted a tweet using “all Caps” that stated, “You will
not get this account back!” (ECF No. 2 at 5). Wilson does not reveal whether this account
too was suspended by Twitter.
Wilson explains he used his Twitter account to “express my heterosexuality and
Christian affiliation,” and states that the actions taken by Twitter violated his “rights too
[sic] ‘free speech and expression.’” (Id. at 4). Wilson believes that it is “obvious” Twitter
suspended his accounts “because I stand up for/stood up for expressing me/my [sic]
heterosexuality.” (Id. at 4-5). Wilson asserts that this motive is evidenced by Twitter’s
suspension of his accounts based solely on his “profile description,” and before he
submitted any content.1 (Id. at 5).
Wilson’s handwriting is occasionally nearly indecipherable, and the meaning of his complaint is at times
difficult to discern. The undersigned has attempted to attach fair meaning to Wilson’s assertions to the
extent possible.

1

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Wilson asserts that he is bringing his claims pursuant to the “U.S. Constitution, 1st
[Amendment,] [the] 1866 Civil Rights Act . . . and [the] 1964 [Civil Rights] Act.” (Id. at 3).
For relief, Wilson seeks 50 million dollars in damages for Twitter’s actions which violated
his constitutional right to free expression and suppressed his ability to express his
“heterosexuality and Christian affiliation.” (Id. at 4). Wilson additionally seeks 150
million dollars for Twitter’s actions in “targeting” him by suspending his accounts. (ECF
No. 2 at 6). Wilson asserts that this conduct caused him stress, resulting in raised blood
pressure and cholesterol levels, and additionally caused Wilson to engage in “angry
outbursts” which “disturbed [his] neighbors.” (Id.).
Wilson also requests 250 million dollars in damages based on the suspension of
his Twitter account due to “actual tweets” he sent, as well the profile description he
assigned to the Twitter account.2 (Id.). Wilson describes the nature of this content which
included “insults” against public figures such as “Oprah Winfrey/Gayle King/President
Obama/Sunny Hostin/Michelle Obama and many more insulted.” (Id.). Wilson also
objects to the suspension of his account based on “insults” he levied against
“homosexuality” in general. These insults included the terms “‘gayness/Homos/Fagots
[sic]/Dykes/Low Down Bi-Bisexuals [sic]/Queer Dogs/Trans Mutants.’” (Id.).
On February 24, 2020, Twitter submitted a Motion to Dismiss Complaint and an
accompanying memorandum of law in support. (ECF Nos. 14, 15). Twitter presents
multiple arguments in favor of dismissal. First, Twitter asserts that Wilson is unable to
assert a claim against it under the First Amendment to the United States Constitution

2 It is not entirely clear if Wilson is referring solely to content which was created under the account which
was suspended on December 28, 2019, or if he is describing content he submitted under multiple alternative
accounts which were also deactivated by Twitter. However, for the purposes of this complaint, this
distinction is not material.

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(“First Amendment”) because Twitter is a private entity not subject to the First
Amendment’s proscription against speech restriction. (ECF No. 15 at 5). Twitter argues
that Wilson additionally fails to assert a valid claim under the Civil Rights Act of 1866, 42
U.S.C. § 1981, because he does not allege Twitter discriminated against him based on his
race. (Id. at 5-6).
As to Wilson’s claim under the Civil Rights Act of 1964, Twitter asserts that Wilson
fails to allege facts showing religious discrimination under Title II of that Act, and is
unable to proceed against Twitter as the company’s social media platform is not a “public
accommodation” as required to bring a claim under Title II. (Id. at 6). Finally, Twitter
contends that Wilson’s claim is barred as a matter of law because Twitter’s conduct in
suspending Wilson’s accounts is protected under relevant federal law. (Id. at 7).
On April 7, 2020, Wilson filed a Response to Twitter’s request for dismissal. (ECF
No. 19). Wilson objects to a telephone call he received from counsel representing Twitter
in which he was asked if he was representing himself in this action, or if he had obtained
counsel. (Id. at 1). Wilson states counsel for Twitter informed him the question was asked
in order to determine if materials related to the case should be sent to Wilson directly, or
to the attorney representing his interests. (Id.). Wilson asserts that this amounts to “total
deception and ‘legal abuse.’” (Id.). Wilson believes that counsel for Twitter only asked if
Wilson was represented by counsel so that they could present a motion to dismiss with
“frivolous case references.” (Id.). Wilson objects to counsel for Twitter’s “‘snake in tall
weeds’ tactic” and asks that this Court deny Twitter’s “elementary ‘Motion to Dismiss.’”
(Id.). Wilson requests that this Court consider granting 200 million dollars or “at least
half” of his requested monetary damages. (Id.).

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On April 9, 2020 Wilson supplied a Supplemental Response, in which he largely
reiterates his claim that counsel for Twitter acted improperly by calling him and by
submitting a “frivolous” motion to dismiss. (ECF No. 20 at 1). Wilson believes that counsel
for Twitter submitted a legal brief replete with inaccurate assertions of law knowing that
Wilson was proceeding pro se and would be unable to effectively rebut their incorrect
legal citations. (Id. at 1-2). Wilson again asks this Court to grant at least half of his
requested monetary damages due to the “clear and present danger of ‘legal abuse’”
presented by Twitter’s actions. (Id.).
On April 21, 2020, Twitter submitted a Reply in Support of its Motion to Dismiss
Wilson’s Complaint. (ECF No. 21). Twitter asserts that Wilson “fails to refute, or even
address, the Complaint’s numerous fatal defects that Twitter detailed in its Motion to
Dismiss,” and, “instead focuses solely on the baseless allegation that [Twitter’s] decision
to file this Motion as well as a single conversation with local defense counsel concerning
whether he was represented by counsel, constitute ‘legal abuse’ that compels denial of
Twitter’s Motion.” (Id. at 1). Twitter explains that defense counsel contacted Wilson in
order to request Wilson’s consent to an extension of time for Twitter to submit its
response. (Id. at 3). Prior to communicating the request, in order to comply with relevant
rules regulating attorney conduct, counsel for Twitter asked Wilson if he was in the
process of obtaining an attorney, or was planning on proceeding pro se. (Id.). Wilson
denied the request and the conversation ended. (Id.).
II.

Standard of Review
Twitter files its motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6). A motion under this rule tests the sufficiency of the complaint. Bell Atlantic Corp
v. Twombly, 550 U.S. 544, 570 (2007) (stating to survive a 12(b)(6) motion, a complaint
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must contain sufficient factual matter, accepted as true, to ‘‘state a claim to relief that is
plausible on its face”). Accordingly, the Court will assume that the facts alleged in the
complaint are true and will draw all reasonable inferences in Wilson’s favor, as the
nonmoving party. Burbach Broad. Co. of Delaware v. Elkins Radio Corp., 278 F.3d 401,
405-06 (4th Cir. 2002). Because the purpose of Rule 12(b)(6) is limited to assessing the
adequacy of a complaint, the court is not “to resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464
F.3d 480, 483 (4th Cir. 2006) (internal quotation omitted). “Furthermore, when as here,
a Rule 12(b)(6) motion is testing the sufficiency of a civil rights complaint, ‘we must be
especially solicitous of the wrongs alleged’ and ‘must not dismiss the complaint unless it
appears to a certainty that the plaintiff would not be entitled to relief under any legal
theory which might plausibly be suggested by the facts alleged.’” Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999) (quoting Harrison v. United States Postal
Serv., 840 F.2d 1149, 1152 (4th Cir. 1988)).
While the Court “take[s] the facts in the light most favorable to the plaintiff, ... [the
Court] need not accept the legal conclusions drawn from the facts,” and “need not accept
as true unwarranted inferences, unreasonable conclusions or arguments.” Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Eastern Shore Mkts., Inc. v. J.D.
Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000)). A complaint fails to state a claim
when, accepting the plaintiff’s well-pleaded allegations as true and drawing all reasonable
inferences, the complaint lacks “enough facts to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570. A pleading that “offers labels and conclusions or a
formulaic recitation of the elements of a cause of action will not do” and a complaint will
not “suffice if it tenders naked assertions devoid of further factual enhancements.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted).
Courts are required to liberally construe pro se complaints, such as the complaint
filed herein. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less
stringent standard, the complaint must contain sufficient factual allegations to support a
valid legal cause of action. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th
Cir. 2003). The Court may not rewrite the pleading to include claims that were never
presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), construct the
plaintiff’s legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993),
or “conjure up questions never squarely presented” to the Court. Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
III.

Discussion
Wilson brings his complaint against Twitter, a social media company that has

created a platform wherein subscribers to its service may send electronically created
messages to the public. After making an account, users may create and publish messages,
or “tweets,” to the platform. Users may also view, interact with, and reply, to messages
posted by other users. See e.g. Knight First Amendment Inst. at Columbia Univ. v.
Trump, 928 F.3d 226, 230 (2d Cir. 2019). Wilson asserts that his complaint is brought
under the First Amendment to the United States Constitution and the Civil Rights Acts of
1866, 42 U.S.C. § 1981, and 1964, 42 U.S.C. § 2000a. (ECF No. 2 at 3). Each of these
arguments will be considered in turn.
A. The First Amendment
The First Amendment states that “Congress shall make no law ... abridging the
freedom of speech.” See U.S. Const. amend. I. The constitutional safeguard provided by
the free speech clause of the First Amendment “was fashioned to assure unfettered
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interchange of ideas for the bringing about of political and social changes desired by the
people.” New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) (quotation omitted).
“If there is any fixed star in our constitutional constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act their faith therein.” W.
Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). The First Amendment
has long protected “a prized American privilege to speak one's mind, although not always
with perfect good taste, on all public institutions.” Bridges v. State of Cal., 314 U.S. 252,
270 (1941) (footnote omitted).
The First Amendment’s proscription against government interference with private
speech “constrains governmental actors and protects private actors.” Manhattan Cmty.
Access Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019). It is, accordingly, “a commonplace
that the constitutional guarantee of free speech is a guarantee only against abridgment by
government, federal or state.” Hudgens v. N.L.R.B., 424 U.S. 507, 513 (1976). This means
that “while statutory or common law may in some situations extend protection or provide
redress against a private corporation or person who seeks to abridge the free expression
of others, no such protection or redress is provided by the Constitution itself.” Id. It is not
disputed by Wilson that Twitter is a publicly traded, multi-national corporation and not
an arm of federal or state government. (ECF No. 15 at 5).
Under certain circumstances, where the actions of an ostensibly private actor can
be “fairly attributed to the State,” the private entity may be treated as a “state actor” and
forced to comply with the restraints on government action provided by the Constitution.
See Rendell-Baker v. Kohn, 457 U.S. 830, 839–40 (1982). The Supreme Court of the
United States (“Supreme Court”) has recently clarified when the state-action doctrine
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may apply and reinforced the distinction between government action, which is subject to
the free speech clause of the First Amendment, and private conduct which is not. See
Halleck, 139 S. Ct. at 1930. “[A] private entity may qualify as a state actor when it exercises
‘powers traditionally exclusively reserved to the State.’” Id. at 1928 (quoting Jackson v.
Metro. Edison Co., 419 U.S. 345, 352 (1974)). However, “to qualify as a traditional,
exclusive public function within the meaning of our state-action precedents, the
government must have traditionally and exclusively performed the function.” Id. at 1929
(citations omitted). In, Halleck, the Supreme Court concluded that a private entity which
operated a public access channel on a cable system was not a state actor, despite pervasive
state regulation of the private entity’s operation of the public access channel. Id. at 192627. In so doing, the Supreme Court concluded that, “merely hosting speech by others is
not a traditional, exclusive public function and does not alone transform private entities
into state actors subject to First Amendment constraints.” Id. at 1930.
Beyond generalized assertions that Twitter’s motion to dismiss contains “frivolous
case references” and amounts to “legal abuse,” Wilson does not address Twitter’s
assertion that, as a private entity, it is not constrained by the First Amendment. (ECF No.
20 at 1-2). Even if Wilson were to argue that Twitter is subject to the First Amendment
under the state-action doctrine, such an argument would fail. While Twitter no doubt
provides a valuable public forum, one in which millions of users, including the President
of the United States, participate in wide-ranging public discourse,3 this alone is
insufficient to establish that Twitter is a state actor. Although the ubiquity of the internet,
and the unprecedented scale at which social media companies such as Twitter operate,

3

See Knight First Amendment Inst. at Columbia Univ. v. Trump, 953 F.3d 216, 217 (2d Cir. 2020).

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has resulted in a significant portion of public debate taking place on forums controlled by
private actors, the nature of the state-action doctrine remains the same. See Brown v.
Entm't Merchants Ass'n, 564 U.S. 786, 790 (2011) (“[W]hatever the challenges of
applying the Constitution to ever-advancing technology, the basic principles of freedom
of speech and the press, like the First Amendment's command, do not vary when a new
and different medium for communication appears.”) (internal quotation omitted); see
also Prager Univ. v. Google LLC, 951 F.3d 991, 995 (9th Cir. 2020) (“The Internet does
not alter [the] state action requirement of the First Amendment.”).
The Supreme Court has previously considered First Amendment claims during a
similar shift in the sphere of public association, as the rise of private shopping malls and
accompanying change in American consumer behavior in the latter-half of the twentieth
century resulted in a relative decrease in the centrality as places of public debate of
municipally-owned “streets, sidewalks, parks, and other similar public places,” which
were traditionality closely “associated with the exercise of First Amendment rights.”
Hudgens, 424 U.S. at 515. Nevertheless, the Supreme Court declined to extend the
protections of the First Amendment to those distributing leaflets on the private property
of a shopping center, despite its similarity to the public forums traditionally associated
with the exercise of the First Amendment. Id. at 519-521; see also Lloyd Corp., Ltd. v.
Tanner, 407 U.S. 551, 563-64 (1972). That private social media companies now host
platforms which imitate the functions of public forums—in many respects more effectively
than the traditional public forums of government-owned sidewalks, streets, and public
parks—does not mean that the entities are state-actors for the purposes of the First
Amendment. See Prager, 951 F.3d at 997 (“YouTube may be a paradigmatic public square
on the Internet, but it is ‘not transformed’ into a state actor solely by ‘provid[ing] a forum
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for speech.’”) (quoting Halleck, 139 S. Ct. at 1930, 1934); see also Davison v. Facebook,
Inc., 370 F. Supp. 3d 621, 629 (E.D. Va.), aff'd, 774 F. App'x 162 (4th Cir. 2019), cert.
denied, 140 S. Ct. 1111 (2020) (“Under these circumstances, Facebook cannot be deemed
a state actor. For that reason, Facebook has, as a private entity, the right to regulate the
content of its platforms as it sees fit.”); Freedom Watch, Inc. v. Google, Inc., 368 F. Supp.
3d 30, 40 (D.D.C. 2019) (“Facebook and Twitter … are private businesses that do not
become ‘state actors’ based solely on the provision of their social media networks to the
public.”); Ebeid v. Facebook, Inc., No. 18-CV-07030-PJH, 2019 WL 2059662, at *6 (N.D.
Cal. May 9, 2019) (“Because Facebook is a private entity and because plaintiff has failed
to show that Facebook should be treated as a state actor, plaintiff has failed to state a First
Amendment claim.”); Forbes v. Facebook, Inc., 2016 WL 676396, at *2 (E.D.N.Y. Feb. 18,
2016) (“Facebook is a private corporation” whose actions may not “be fairly attributable
to the state”); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 631 (D. Del. 2007)
(“Defendants are private, for profit [internet search engines], not subject to constitutional
free speech guarantees.”).
As the Supreme Court has noted, “merely hosting speech by others is not a
traditional, exclusive public function and does not alone transform private entities into
state actors subject to First Amendment constraints.” Halleck, 139 S. Ct. at 1930. Thus,
the undersigned FINDS that Wilson fails to state a plausible First Amendment claim
against Twitter because, notwithstanding that it has created a forum for hosting speech,
Twitter is a private entity and is not subject to the state-action doctrine.
B. Section 1981
Wilson asserts that he is bringing this lawsuit under § 1981. (ECF No. 2 at 3).
Section 1981 is a “longstanding civil rights law, first enacted just after the Civil War.”
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CBOCS W., Inc. v. Humphries, 553 U.S. 442, 445 (2008). The statute provides that “[a]ll
persons within the Jurisdiction of the United States shall have the same right ... to make
and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit
of all laws ... as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). The law further states
that “the term ‘make and enforce contracts’ includes the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits, privileges,
terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). Section 1981
thus by its terms prohibits racial discrimination in the making, performance, and
termination of contracts. See Pryor v. United Air Lines, Inc., 791 F.3d 488, 496 n.6 (4th
Cir. 2015).
Wilson is clearly unable to state a plausible claim for relief under this section as he
does not allege that Twitter discriminated against him due to his race. Wilson states his
belief that Twitter was biased against him because of his statements in favor of
“heterosexuality,” as well as his adherence to Christian beliefs, (ECF No. 2 at 4-5);
however, nowhere in his complaint does Wilson provide any facts that could conceivably
suggest Twitter discriminated against him due to his race. In fact, it is not apparent from
Wilson’s complaint whether Twitter was even aware of Wilson’s race, much less that the
decision to suspend his account was based on such knowledge. Twitter pointed to
Wilson’s failure to provide any details related to his claim of racial discrimination under
§ 1981 as a valid basis for dismissal of this claim. (ECF No. 15 at 5-6). Wilson responded
to Twitter’s motion for dismissal, but did not provide any further factual allegations
supportive of this claim. (ECF Nos. 19, 20).
As stated, Section 1981 applies only to claims of discrimination based on race. See
Nnadozie v. Genesis HealthCare Corp., 730 F. App'x 151, 157 (4th Cir. 2018) (“However,
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at the very least, a Section 1981 claim must allege race-based discrimination.”)
(unpublished); see also Morey v. Carroll Cty., Gov't, No. CV ELH-17-2250, 2018 WL
2064782, at *14 n.6 (D. Md. May 3, 2018) (“These allegations, however, fall outside of the
scope of § 1981, and will not be considered in connection with this claim, because they do
not involve discrimination based on race.”); Torgerson v. City of Rochester, 643 F.3d
1031, 1052 (8th Cir. 2011) (claim that alleged discrimination was based on national origin
rather than race not cognizable under § 1981) (en banc); El-Zabet v. Nissan N. Am., Inc.,
211 F. App'x 460, 462 (6th Cir. 2006) (“[The plaintiff] alleged only discrimination based
on national origin, while Section 1981 prohibits only discrimination based on race.”).
Given that Wilson fails to allege any facts inferring that Twitter discriminated against him
based on his race, the undersigned FINDS that this claim cannot withstand a Rule
12(b)(6) motion to dismiss.
C. The Civil Rights Act of 1964
Wilson asserts that he is bringing this lawsuit under the “1964 C.R. Act,”
presumably the Civil Rights Act of 1964 (“CRA”). (ECF No. 2 at 3). The CRA was enacted
“to prevent ... discrimination in voting, as well as in places of accommodation and public
facilities, federally secured programs and in employment.” Heart of Atlanta Motel, Inc.
v. United States, 379 U.S. 241, 246 (1964). Wilson does not assert under which provision
of the CRA he brings his claim, but granting his complaint the liberal construction
afforded to pro se litigants, he alleges a violation of Title II of the Act, codified as 42 U.S.C.
§ 2000a. Title II entitles all individuals “to the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and accommodations of any place of public
accommodation … without discrimination or segregation on the ground of race, color,
religion, or national origin.” 42 U.S.C. § 2000a(a).
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1. Public Accommodation
Twitter first argues that Wilson is unable to bring a claim alleging a violation of
Title II because Twitter is not appropriately considered a place of “public
accommodation.” (ECF No. 15 at 6-7). Title II defines a “place of public accommodation”
as:
(1) any inn, hotel, motel, or other establishment which provides lodging to
transient guests, other than an establishment located within a building
which contains not more than five rooms for rent or hire and which is
actually occupied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or
other facility principally engaged in selling food for consumption on the
premises, including, but not limited to, any such facility located on the
premises of any retail establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or
other place of exhibition or entertainment; and
(4) any establishment (A)(i) which is physically located within the premises
of any establishment otherwise covered by this subsection, or (ii) within the
premises of which is physically located any such covered establishment, and
(B) which holds itself out as serving patrons of such covered establishment.
42 U.S.C. § 2000a(b). “Whether an entity qualifies as a ‘place of public accommodation’
can be a fact-intensive inquiry, because establishments ‘differ markedly in their
operations.’” Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 431 (4th Cir. 2006)
(quoting Nesmith v. YMCA of Raleigh, N.C., 397 F.2d 96, 98 (4th Cir.1968)). Twitter is
correct that a number of courts have concluded that companies which provide online
services exclusively do not fall under the ambit of Title II’s prohibition against
discrimination in places of “public accommodation” as that definition is limited to
businesses which operate out of physical facilities. See e.g. Noah v. AOL Time Warner,
Inc., 261 F. Supp. 2d 532, 541 (E.D. Va. 2003), aff'd, No. 03-1770, 2004 WL 602711 (4th
Cir. Mar. 24, 2004) (“[A]s the relevant case law and an examination the statute's
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exhaustive definition make clear, ‘places of public accommodation’ are limited to actual,
physical places and structures, and thus cannot include chat rooms, which are not actual
physical facilities but instead are virtual forums for communication provided by AOL to
its members.”); see also Ebeid, No. 18-CV-07030-PJH, 2019 WL 2059662, at *6
(“Facebook is not a public accommodation covered by Title II.”).
This conclusion is not universal, however. Title III of the Americans with
Disabilities Act (“ADA”) grants to individuals with disabilities protection against
discrimination in places of “public accommodation,” similar to that contained in Title II
of the CRA.4 See 42 U.S.C. § 12182(a). The circuits are currently divided over whether the
protections provided by the ADA apply only to concrete physical places, or also require
accommodations allowing disabled individuals to access services offered virtually via the
internet. Compare Peoples v. Discover Financial Services, Inc., 387 Fed.Appx. 179, 183
(3d Cir. 2010) (“Our court is among those that have taken the position that the term
[public accommodation] is limited to physical accommodations.”); Parker v. Metro. Life
Ins. Co., 121 F.3d 1006, 1010–11 (6th Cir. 1997) (en banc ) (“As is evident by § 12187(7), a

Courts have recognized that, while similar, the definitions of places of “public accommodation” as
contained in the ADA and Title II of the CRA are not identical. See Ramirez v. Petrillo, No. 3:12-CV-01472ST, 2012 WL 12887630, at *2 (D. Or. Sept. 19, 2012), aff'd, 559 F. App'x 651 (9th Cir. 2014) (“[T]he ADA
has a ‘more expansive definition of ‘place of public accommodation,’’ than the Civil Rights Act.” (quoting
Noah, 261 F. Supp. at 543 n.9); see also Bowers v. Nat'l Collegiate Athletic Ass'n, 9 F. Supp. 2d 460, 484
(D.N.J. 1998). Nevertheless, courts, including the Supreme Court, have found analysis of the scope of
coverage provided by one law to be instructive for the other. See PGA Tour, Inc. v. Martin, 532 U.S. 661,
681 (2001) (“Our conclusion is consistent with case law in the analogous context of Title II of the Civil Rights
Act of 1964.”); Ganden v. Nat'l Collegiate Athletic Ass'n, No. 96 C 6953, 1996 WL 680000, at *9 n.7 (N.D.
Ill. Nov. 21, 1996) (“In addition, [the CRA’s] definition of “place of public accommodation” is almost
identical to the ADA's definition.”); Elitt v. U.S.A. Hockey, 922 F. Supp. 217, 223 (E.D. Mo. 1996) (holding
that it was appropriate to “apply[] Title II caselaw as persuasive authority,” in ADA context); Staley v. Nat'l
Capital Area Council, Boy Scouts of Am., No. RWT 10CV2768, 2011 WL 2416724, at *9 (D. Md. June 9,
2011) ( recognizing that “[t]he list of public accommodations outlined in … the ADA is broader than that
contained in Title II of the Civil Rights Act,” but nevertheless finding analysis of the CRA to be persuasive
with respect to the ADA’s scope of coverage); Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3d Cir.
1998) (finding that interpretation of “place of public accommodation” as defined by ADA was supported by
being “in keeping with jurisprudence concerning Title II of the Civil Rights Act of 1964”).
4

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public accommodation is a physical place and this Court has previously so held.”); with
Carparts Distribution Center., Inc. v. Automotive Wholesaler's Ass'n of New England,
Inc., 37 F.3d 12, 19–20 (1st Cir. 1994) (“[To] limit the application of Title III to physical
structures which persons must enter to obtain goods and services would run afoul of the
purposes of the ADA and would severely frustrate Congress's intent that individuals with
disabilities fully enjoy the goods, services, privileges and advantages, available
indiscriminately to other members of the general public.”); Doe v. Mutual of Omaha
Insurance Co., 179 F.3d 557, 559 (7th Cir. 1999) (“[T]he owner or operator of a store … or
other facility whether in physical space or in electronic space, that is open to the public
cannot exclude disabled persons from entering the facility and, once in, from using the
facility in the same way that the nondisabled do.”) (internal citation omitted); Nat'l Ass'n
of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 202 (D. Mass. 2012) (finding that online
video streaming service was place of public accommodation); Access Now, Inc. v. Blue
Apron, LLC, No. 17-CV-116-JL, 2017 WL 5186354, at *3 (D.N.H. Nov. 8, 2017) (“In a
society in which business is increasingly conducted online, excluding businesses that sell
services through the Internet from the ADA would run afoul of the purposes of the
ADA[.]”) (quotation omitted); Andrews v. Blick Art Materials, LLC, 268 F.Supp.3d 381,
388-393 (E.D.N.Y. 2017) (describing circuit split).
The United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) has
not directly addressed this issue, either under the ADA or the CRA, but has “affirmed in
an unpublished opinion that under Title II of the Civil Rights Act, ‘chat rooms and other
online services do not constitute a place of public accommodation.’” Carroll v. Nw. Fed.
Credit Union, No. 1:17-CV-01205, 2018 WL 2933407, at *2 (E.D. Va. Jan. 26, 2018) (citing
Noah, 261 F. Supp. at 540). The Supreme Court has also declined to weigh in on this issue.
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See Robles v. Domino's Pizza, LLC, 913 F.3d 898, 905 (9th Cir.), cert. denied, 140 S. Ct.
122 (2019) (declining to review Ninth Circuit’s holding that pizza retailer’s website was
subject to the ADA). Nonetheless, a recent decision issued by the Supreme Court sheds
some light on the distinction between physical places and virtual services crucial to the
split between circuits on this issue.
In South Dakota v. Wayfair, Inc., the Supreme Court overruled its earlier
precedent, stemming from a 1992 decision, which had held that states could not require
out-of-state retailers to collect and remit sales taxes on sales made within the state unless
the retailer in question “maintained a physical presence” within the state. See 138 S. Ct.
2080, 2091 (2018) (overruling Quill Corp. v. N. Dakota By & Through Heitkamp, 504
U.S. 298, 301 (1992)). In so doing, the Wayfair Court derided the physical presence rule
as one that imposed an “arbitrary, formalistic distinction,” and indicated a desire to
fashion a rule “appropriate to the twenty-first century, not the nineteenth.” Id. at 2092
(quotation omitted). The Supreme Court noted that “[m]odern e-commerce does not align
analytically with a test that relies on the sort of physical presence defined by Quill,” and
that the physical presence rule distinguished between a small retailer with a physical instate presence, and a large internet behemoth with pervasive digital sales, but no physical
presence in-state, in a way that “simply makes no sense.” Id. at 2094-95. The Supreme
Court criticized Quill’s overly formal distinction between traditional physical presence,
and “the continuous and pervasive virtual presence of retailers today,” and held that a
business’ virtual presence in a state could provide a sufficient nexus to allow the state to
impose tax requirements. Id. at 2095. While the analysis applied by the Wayfair Court
was directed at the Commerce Clause, and not toward the distinction between physical
places and internet services considered by courts looking at Title II of the CRA, the
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Supreme Court’s clear directive that artificial distinctions between “virtual” and
“physical” commerce erected during the early years of the internet should not be
maintained after modern developments render their justification untenable is instructive
on this issue.
Twitter asks this Court to hold that, as a provider of internet services, it is not a
“public accommodation,” and thus is not subject to Title II’s directive that private entities
refrain from discriminating on the basis of race and other protected classes. (ECF No. 15
at 6-7). Twitter points to Noah v. AOL Time Warner, Inc., a 2004 decision from the
District Court for the Eastern District of Virginia, in support of this argument. (Id.). In
Noah, the district court considered whether the plaintiff could bring a discrimination
claim under Title II of the CRA based on America Online, Inc. (“AOL’s”) alleged failure to
protect him from discrimination on the basis of his religion within electronic “chat rooms”
provided by AOL. See 261 F. Supp. at 534-36.
The district court in Noah dismissed the plaintiff’s complaint because, among
other reasons, it determined that an electronic chat room was not a “place of public
accommodation” under Title II of the CRA. Id. at 539. The Noah Court based this
determination on the fact that Title II’s definition of places of “public accommodation” is
“limited to actual, physical places and structures, and thus cannot include chat rooms,
which are not actual physical facilities but instead are virtual forums for communication
provided by AOL to its members.” Id. at 541. The Noah Court concluded that, based on
this definition, “the reach of Title II, however broad, cannot extend beyond actual physical
facilities.” Id. at 542. Since that decision, as pointed out by Twitter, several courts in this
circuit have cited to Noah favorably in reaching similar conclusion. See Carroll v. FedFin.
Fed. Credit Union, 324 F. Supp. 3d 658, 666 n.2 (E.D. Va. 2018) (finding that the Noah
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Court’s reasoning applied in ADA context); Stanford v. Halloway, No. 16-cv-1355, 2017
WL 1048257, at *3 (D. Md. Mar. 20, 2017) (citing to Noah for proposition that
membership in organization without access to physical facility was not subject to Title II).
However, as detailed above, there is a growing recognition among the circuits that,
in the analogous context of ADA discrimination claims, the remedial purpose of the
federal civil rights statutes would be thwarted if courts were to continue adhering to a
rigid distinction between virtual and physical commerce given the rapid modern
expansion of virtual commerce and association. See e.g. Nat'l Fed'n of the Blind v. Scribd
Inc., 97 F. Supp. 3d 565, 575 (D. Vt. 2015) (“Now that the Internet plays such a critical
role in the personal and professional lives of Americans, excluding disabled persons from
access to covered entities that use it as their principal means of reaching the public would
defeat the purpose of this important civil rights legislation.”). Similarly, courts
confronting this question recently have expressed concern that exempting internet
services from Title II’s protections entirely would conflict with “the need to construe Title
II broadly, in light of its purpose,” and render large swaths of the economy and places of
public association immune to the protections provided by the CRA. See Coral Ridge
Ministries Media, Inc. v. Amazon.com, Inc., 406 F. Supp. 3d 1258, 1297 (M.D. Ala. 2019).
The “overriding purpose” of Title II of the CRA is to eliminate “the daily affront
and humiliation involved in discriminatory denials of access to facilities ostensibly open
to the general public.” Daniel v. Paul, 395 U.S. 298, 307-08 (1969). “Title II of the Civil
Rights Act is to be liberally construed and broadly read” in order to effectuate its mandate
of eliminating discrimination in public facilities. Miller v. Amusement Enterprises, Inc.,
394 F.2d 342, 349 (5th Cir. 1968). Noah, the case that most thoroughly examined this
issue in this circuit was decided in 2004, when the commercial and social potential of
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internet services was still nascent.5 The Supreme Court has recently, albeit in a different
context, admonished against maintaining artificial distinctions between “physical” and
“virtual” commerce as the pervasive reach of the internet continues to alter how
individuals conduct business and associate with one another. See Wayfair, 138 S. Ct. at
2092. Given the massive restructuring of both the economy and public association
effectuated by the rise of online platforms and business since the Noah decision was
issued, drawing an inflexible distinction between physical facilities which can
appropriately be considered places of public accommodation, and virtual services and
platforms which cannot, appears increasingly tenuous. Online websites and services such
as Twitter are, like their physical counterparts, “ostensibly open to the general public,”
and it increasingly appears that cordoning off virtual services from the protection of Title
II would undermine the broad protections provided by the CRA as more and more
services and economic opportunities migrate to virtual spaces. See Daniel, 395 U.S. at
307-08 .
Ultimately, the undersigned FINDS that the Court need not affirmatively resolve
this question because, even assuming that Twitter appropriately could be considered a
“place of public accommodation” subject to the protections of Title II, Wilson’s claim
under the CRA is subject to dismissal for other reasons. See Coral Ridge Ministries, 406
F. Supp. 3d at 1296-97.

The change that has occurred in internet services since that opinion was issued can, in part, be seen by the
Noah Court’s statement that AOL was at that time “the world's largest Internet service provider, with more
than 30 million subscribers, or ‘members,’ worldwide.” 261 F.Supp.2d at 534. Clearly, AOL’s domination of
the internet service market is now a thing of the past, and a number of internet social media empires have
risen and fallen since the heyday of AOL. See e.g. AOL’s History of Growth and Decline, New York Times
Dealbook, May 12, 2015, https://www.nytimes.com/interactive/2015/05/12/business/dealbook/aoltimeline.html#/#time372_10952.

5

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2. Nature of relief requested
As an initial matter, although not raised by Twitter, Wilson’s complaint fails to
request any form of relief which can be granted under the CRA. Wilson requests only
monetary damages for relief. (ECF No. 2 at 4, 6). In his responses to Twitter’s motion to
dismiss, Wilson asserts that he would be willing to concede to receiving half of the amount
he initially requested, but provides no indication that he is seeking any form of relief
beyond monetary damages. (ECF Nos. 19 at 1-2, 20 at 2).
“The only relief available under Title II [of the CRA] is injunctive relief.” Acey v.
Bob Evans Farms, Inc., No. 2:13-CV-04916, 2014 WL 989201, at *7 (S.D.W. Va. Mar. 13,
2014) (citation omitted). While the CRA does permit an individual to bring a private
lawsuit enforcing Title II of the Act, “[w]hen a plaintiff brings an action under that Title,
he cannot recover damages.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400,
402 (1968). Accordingly, when a plaintiff brings a complaint under Title II which seeks
only monetary damages, courts in this Circuit have found the complaint should be
dismissed. See Acey, No. 2:13-CV-04916, 2014 WL 989201, at *7-8 (citing Gennell v.
Denny's Corp., 378 F.Supp.2d 551, 556 (D. Md. 2005)); see also Levy v. Denny's Corp.,
No. 7:13-CV-00565-MGL, 2013 WL 5596925, at *6 (D.S.C. Oct. 11, 2013) (“The plaintiff's
public accommodation claim under Title III of the ADA and her claim under Title II of
the Civil Rights Act of 1964 should be dismissed for failure to pray for equitable relief,
which is the only remedy available under either claim.”); Rychenko v. Burnette, No. 1:16CV-00214-MR-DSC, 2017 WL 130001, at *2 (W.D.N.C. Jan. 12, 2017), report and
recommendation adopted, No. 1:16-CV-00214-MR-DSC, 2017 WL 872650 (W.D.N.C.
Mar. 3, 2017) (“[The plaintiff’s] claim under Title II should be dismissed because he has
sought monetary damages when only injunctive relief is available under the statute.”).
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Therefore, as Wilson seeks only monetary damages, the undersigned FINDS that
his claim under Title II of the CRA should be dismissed.
3. Section 230
Twitter asserts that Wilson’s claim that his account was inappropriately
terminated is barred by the operation of Section 230 of the Communications Decency Act
(“CDA”), codified as 47 U.S.C. § 230. (ECF No. 15 at 7). The Fourth Circuit has explained
that in enacting the CDA, “Congress carved out a sphere of immunity from state lawsuits
for providers of interactive computer services to preserve the ‘vibrant and competitive
free market’ of ideas on the Internet.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
Inc., 591 F.3d 250, 254 (4th Cir. 2009) (quoting 47 U.S.C. § 230(b)(2)). To effectuate the
CDA’s purposes, “courts have generally accorded [Section] 230 immunity a broad scope.”
Id. The CDA “established a general rule that providers of interactive computer services
are liable only for speech that is properly attributable to them.” Id. (citing Universal
Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir.2007)).
Section 230 provides, in relevant part, that “[n]o 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.” 47 U.S.C. § 230(c)(1). The Fourth Circuit has
recognized that, “[b]y its plain language,” this provision of the CDA, “creates a federal
immunity to any cause of action that would make service providers liable for information
originating with a third-party user of the service.” Zeran v. Am. Online, Inc., 129 F.3d 327,
330 (4th Cir. 1997). The practical effect of the immunity, “precludes courts from
entertaining claims that would place a computer service provider in a publisher's role.”
Id. Meaning, “lawsuits seeking to hold a service provider liable for its exercise of a
publisher's traditional editorial functions—such as deciding whether to publish,
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withdraw, postpone or alter content—are barred.” Id. The Fourth Circuit recognized that
an ancillary goal of the legislation was to “encourage service providers to self-regulate the
dissemination of offensive material over their services,” by granting them immunity from
material published by third parties regardless of whether the interactive computer service
provider took an active role in regulating the content therein. Id. at 331. Accordingly, Ҥ
230 forbids the imposition of publisher liability on a service provider for the exercise of
its editorial and self-regulatory functions.” Id.
To determine if Section 230 immunity attaches, a court must investigate: “1)
whether Defendant is a provider of an interactive computer service; 2) if the postings at
issue are information provided by another information content provider; and 3) whether
[the plaintiff’s] claims seek to treat [the defendant] as a publisher or speaker of third party
content.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 564 F. Supp. 2d 544, 548
(E.D. Va. 2008), aff'd, 591 F.3d 250 (4th Cir. 2009).
i.) Interactive computer service
The CDA “broadly defines ‘interactive computer service’ as ‘any information
service, system, or access software provider that provides or enables computer access by
multiple users to a computer server.’” Jefferson v. Zukerberg, No. CV RDB-17-3299, 2018
WL 3241343, at *5 (D. Md. July 3, 2018) (quoting 47 U.S.C. § 230(f)(2)). The “prototypical
service qualifying for this statutory immunity [under § 230(c)(1) ] is an online messaging
board (or bulletin board) on which Internet subscribers post comments and respond to
comments posted by others.” Hare v. Richie, No. CIV. ELH-11-3488, 2012 WL 3773116,
at *15 (D. Md. Aug. 29, 2012) (quoting FTC v. Accusearch, Inc., 570 F.3d 1187, 1195 (10th
Cir.2009)). Wilson does not dispute that Twitter is an “interactive computer service”
within the meaning of the statute. Indeed, Twitter provides the “prototypical service”
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entitling it to the protections of this statute, as it provides a forum for individuals to post
comments, (or “tweets,” to give them their nom de guerre), to which others may then
respond. Id. Other courts to consider the question have also found that Twitter qualifies
as an interactive computer service. See Mezey v. Twitter, Inc., No. 1:18-CV-21069-KMM,
2018 WL 5306769, at *1 (S.D. Fla. July 19, 2018) (“First, Twitter—as a platform that
transmits, receives, displays, organizes, and hosts content—is an interactive computer
service.”); see also Am. Freedom Defense Initiative v. Lynch, 217 F.Supp. 3d 100, 104 (D.
D.C. 2016) (finding that Twitter is interactive computer service under the CDA); Brittain
v. Twitter, Inc., No. 19-CV-00114-YGR, 2019 WL 2423375, at *2 (N.D. Cal. June 10, 2019)
(“The Court finds that Twitter qualifies as an interactive computer service.”).
ii.) Information provided by another content provider
It is clear that the information at issue here, Wilson’s posts and Twitter accounts,
meets the second prong of this test. An “information content provider” is defined as “any
person or entity that is responsible, in whole or in part, for the creation or development
of information provided through the Internet or any other interactive computer service.”
47 U.S.C. § 230(f)(3). The term “another information content provider” refers to any
content not provided by the interactive computer service provider itself. See Batzel v.
Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (“The reference to ‘another information
content provider’ … distinguishes the circumstance in which the interactive computer
service itself meets the definition of ‘information content provider’ with respect to the
information in question.”). This means Twitter would not be immune from suit under this
statute for content Twitter itself created and published directly, but is immune from
lawsuits stemming from content provided by other individuals which Twitter hosts on its
platform. See Sikhs for Justice, Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088, 1094 (N.D.
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Cal. 2015), aff'd, 697 F. App'x 526 (9th Cir. 2017) (“In other words, the CDA immunizes
an interactive computer service provider that passively displays content that is created
entirely by third parties, but not an interactive computer service provider that acts as an
information content provider by creating or developing the content at issue.”).
Accordingly, the content at issue in this case was provided by “another information
content provider,” i.e. not Twitter, given that it was provided by Wilson himself.
iii.) Treating Twitter as a speaker or publisher
Lastly, Wilson is clearly attempting to hold Twitter liable as a publisher or speaker.
The Fourth Circuit has recognized that § 230 intended to immunize interactive computer
service providers where they exercised “a publisher's traditional editorial functions” while
hosting the content of others. Zeran, 129 F.3d at 330. This includes “deciding whether to
publish, withdraw, postpone or alter content.” Id. Wilson seeks to hold Twitter liable for
its decision to delete his posts and terminate (or withdraw) his account. (ECF No. 2 at 4).
As Twitter’s decision to suspend Wilson’s accounts, based on tweets that reportedly used
derogatory slurs for homosexuality, was reached in the course of a traditional editorial
function—namely deciding what type of content to publish—Wilson’s claim is precluded
by application of § 230(c)(1) of the CDA. While this case does not represent the “typical”
case envisioned by § 230 immunity, wherein a litigant seeks to hold an interactive
computer service provider liable for publishing content from a third-party which the
litigant finds objectionable, courts have readily found that the statutory immunity also
applies to the factual scenario presented here, where the plaintiff objects to the removal
of his or her own content. See Domen v. Vimeo, Inc., No. 1:19-CV-08418 (SDA), 2020 WL
217048, at *6 (S.D.N.Y. Jan. 15, 2020); (“In this case, Vimeo plainly was acting as a
‘publisher’ when it deleted (or, in other words, withdrew) [the plaintiffs’] content on the
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Vimeo website.”); see also Mezey, No. 18-CV-21069 (KMM), 2018 WL 5306769, at *2
(dismissing lawsuit claiming that Twitter “unlawfully suspended [the plaintiff's] Twitter
account” on grounds of Section 230(c)(1) immunity); Riggs v. MySpace, Inc., 444 F.
App'x 986, 987 (9th Cir. 2011) (Section 230 immunity applied to claims “arising from
MySpace's decisions to delete [the plaintiff’s] user profiles on its social networking
website yet not delete other profiles…”); Hare v. Richie, No. CIV. ELH-11-3488, 2012 WL
3773116, at *15 (D. Md. Aug. 29, 2012) (“[L]awsuits seeking to hold a service provider
liable for its exercise of a publisher's traditional editorial functions—such as deciding
whether to publish, withdraw, postpone or alter content—are barred. It is immaterial
whether this decision comes in the form of deciding what to publish in the first place or
what to remove among the published material.”) (internal quotations omitted); Ebeid,
No. 18-CV-07030-PJH, 2019 WL 2059662, at *5 (decision to suspend the plaintiff’s
Facebook account was traditional editorial function and thus protected by § 230);
Lancaster v. Alphabet Inc., No. 15-CV-05299 (HSG), 2016 WL 3648608 at *3 (N.D. Cal.
July 8, 2016) (applying Section 230 (c)(1) immunity to the decision by YouTube, LLC, to
remove the plaintiff's YouTube videos); Bennett v. Google, LLC, 882 F.3d 1163, 1167 (D.C.
Cir. 2018) (“[T]he very essence of publishing is making the decision whether to print or
retract a given piece of content.”) (quotation omitted); Fair Hous. Council of San
Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1170–71 (9th Cir. 2008)
(“[A]ny 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.”).
Notably, the CDA expressly excludes only four classes of claims from its broad
grant of immunity. These include, claims involving a “Federal criminal statute,” “any law
pertaining to intellectual property,” “any State law that is consistent with this section,”
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and “the Electronic Communications Privacy Act.” See 47 U.S.C. § 230(e)(1)-(4). Claims
brought pursuant to federal civil rights statutes, such as Title II of the CRA, are not
exempted from the immunity provided by the CDA. See Noah, 261 F. Supp. at 539 (“First,
[the plaintiff] argues that § 230 immunity does not apply to claims brought under federal
civil rights statutes. Yet, this argument runs counter to § 230's expansive language, which
plainly reaches such claims.”); see also Sikhs for Justice, Inc. v. Facebook, Inc., 697 Fed.
App'x. 526, 526 (9th Cir. 2017) (“[W]e have found no authority, and [the plaintiff] fails to
cite any authority, holding that Title II of the [CRA] provides an exception to the
immunity afforded to [the defendant] under the CDA.”); Nat'l Ass'n of the Deaf v.
Harvard Univ., 377 F. Supp. 3d 49, 66 (D. Mass. 2019) (“The CDA exempts certain laws
from its reach. Federal and state antidiscrimination statutes are not exempted.”); Chicago
Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671
(7th Cir. 2008) (finding that CDA barred claim brought under the Fair Housing Act).
Consequently, the undersigned FINDS that Wilson’s claim that Twitter improperly
revoked his accounts under Title II of the CRA is barred by federal law.
4. Failure to state a claim
Twitter asserts that Wilson “provides no plausible factual allegation that Twitter
had a discriminatory purpose” in suspending his accounts, and that his complaint must
be dismissed accordingly. (ECF No. 15 at 7). Wilson claims two potential discriminatory
motives for Twitter’s suspension of his accounts. First, he alleges that his participation in
Twitter was terminated based on his “heterosexuality” and the fact that he “stood up for
expressing me/my [sic] heterosexuality.” (ECF No 2 at 5). Second, Wilson contends that
he was barred by Twitter because he expressed his “Christian affiliation.” (Id. at 4).

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i.) Heterosexuality
As noted, the CRA protects against discrimination in the enjoyment of “goods,
services, facilities, privileges, advantages, and accommodations” provided by “any place
of public accommodation … on the ground of race, color, religion, or national origin.” 42
U.S.C. § 2000a(a). Read generously, Wilson’s complaint can be seen as asserting a claim
that he was denied access to Twitter’s services on the basis of his sexual orientation, and
statements he made in support thereof. (ECF No. 2 at 4-5). However, the CRA only
protects against discrimination in places of public accommodation on the basis of an
individual’s “race, color, religion or national origin.” 42 U.S.C. § 2000a(a). Title II does
not prohibit discrimination on the basis of sex or sexual orientation.6 As Wilson’s
“heterosexuality” is not recognized as a protected class for the purposes of Title II of the
CRA, the undersigned FINDS that he fails to state a claim against Twitter for allegedly
discriminating against him based on his heterosexual orientation. See Armstrong v.
James Madison Univ., No. 5:16-CV-00053, 2017 WL 2390234, at *6 (W.D. Va. Feb. 23,
2017), report and recommendation adopted, No. 5:16-CV-53, 2017 WL 2399338 (W.D.
Va. June 1, 2017) (“Thus, [the plaintiff’s] allegations of discrimination based on his age
and sex are not properly brought under Title II.”) (collecting cases).
ii.) Religion
Title II of the CRA prohibits places of public accommodation from discriminating
6 Title VII of the CRA does prohibit discrimination in employment practices on the basis of “sex.”42 U.S.C.
§ 2000e-2(a)(1)-(2). Wilson’s complaint does not allege any facts which suggest he could proceed under
this Title. Moreover, while Title VII prohibits discrimination on the basis of “sex,” the circuits are currently
divided over whether that protection extends to one’s sexual orientation. The issue is currently pending
before the Supreme Court, See Altitude Exp., Inc. v. Zarda, 139 S. Ct. 1599 (2019). However, as the law
currently stands in this Circuit, Wilson would be unable to proceed with a claim under Title VII based on
his sexual orientation even if his complaint did allege discrimination in the context of employment. See
Hinton v. Virginia Union Univ., 185 F. Supp. 3d 807, 814 (E.D. Va. 2016) (“It is explicitly the law of the
Fourth Circuit that Title VII does not protect against discrimination based on sexual orientation.”) (citing
Murray v. N. Carolina Dep't of Pub. Safety, 611 Fed.Appx. 166 (4th Cir.2015)).

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against individuals on the basis of their religion. 42 U.S.C. § 2000a(a). Wilson asserts that
Twitter wrongfully suspended his account based on his “Christian affiliation.” (ECF No. 2
at 4). However, Wilson provides no facts in support of this statement. To the extent that
Wilson does provide facts related to the suspension of his accounts, these facts revolve
around his stance on heterosexuality and homosexuality. (Id. at 5). Beyond the bare,
conclusory assertion that his account was suspended because of his “Christian affiliation,”
Wilson provides no allegations corroborating his belief that he was discriminated against
based on his religion. Wilson explains that his account was suspended after he deployed
“insults” against various public figures and against homosexuality broadly. (Id. at 6). The
insults took the form of various derogatory terms such as “‘gayness/Homos/Fagots
[sic]/Dykes/Low Down Bi-Bisexuals [sic]/Queer Dogs/Trans Mutants.’” (Id.). Taking
Wilson at his word, these tweets did not explicitly refer to his Christian beliefs and were
not posted primarily as a way to promote Christianity as a religion.
Although considering discrimination on the basis of religion in the employment
context under Title VII, rather than in the context of a place of public accommodation
under Title II, the Fourth Circuit decision in Chalmers v. Tulon Company of Richmond,
is instructive. See 101 F.3d 1012 (4th Cir. 1996). There, the Fourth Circuit considered
whether a business had discriminated against its employee when it fired her after she sent
various letters to other employees criticizing their “immoral” conduct and lifestyles. Id. at
1021. The Fourth Circuit concluded it had not, because, among other reasons, the plaintiff
failed to demonstrate that she had notified the company it was her sincere religious beliefs
which compelled her to send the letters to other employees. Id. This requirement is
necessary because “[i]f an employer has not been given adequate notice of an employee's
religious conflict, then ipso facto the religious animus that the statute was designed to
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prevent cannot have existed.” Cary v. Carmichael, 908 F. Supp. 1334, 1344 (E.D. Va.
1995), aff'd sub nom. Cary v. Anheuser-Busch, Inc., 116 F.3d 472 (4th Cir. 1997).
As in the context of employment discrimination claims under Title VII, in order to
demonstrate a claim of religious discrimination in a place of public accommodation under
Title II, Wilson must show that Twitter was both aware of his religious beliefs, and
discriminated against him on the basis of those religious beliefs. Akiyama v. U.S. Judo
Inc., 181 F. Supp. 2d 1179, 1187 (W.D. Wash. 2002) (“Absent some evidence that the
regulation was aimed at a particular religious belief and/or that the proprietor adopted
the regulation as a pretext for intentional discrimination on the basis of religion, Title II
is not implicated.”); Bormuth v. Dahlem Conservancy, 837 F. Supp. 2d 667, 674 (E.D.
Mich. 2011) (“[T]o prove the claim, plaintiff would have to demonstrate that he was
denied a public accommodation because of his religion.”); Armstrong, No. 5:16-CV00053,

2017

WL

2390234,

at

*6;

Bellamy

v.

Finn

McCool's

Bar,

No.

418CV01636JMCKDW, 2018 WL 6113001, at *3 (D.S.C. Aug. 3, 2018), report and
recommendation adopted, No. 4:18-CV-01636-JMC, 2018 WL 4767241 (D.S.C. Oct. 3,
2018) (“Where a plaintiff fails to allege facts that would reasonably support a finding of
intentional discrimination, courts have dismissed the plaintiff’s claim.”) (Section 1981
claim). Reading Wilson’s complaint liberally, it may be construed as putting forth the
argument that he spoke out in favor of heterosexuality, and in opposition to
homosexuality, because of his religious beliefs. However, he fails to provide any indication
that the tweets alerted Twitter to the fact that he was deploying the offensive language he
used as an expression of his religious beliefs. Moreover, Wilson provides no allegations
upon which the Court could reasonably conclude that mainstream Christians, or
Christian-based religions, sanction and encourage the use of derogatory labels. Wilson’s
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complaint leaves no doubt that his account was suspended due to his violation of Twitter’s
Terms of Service that govern users’ conduct; specifically, the rule prohibiting “hateful
conduct.” (ECF No. 2 at 4).7
Twitter’s policy prohibiting hateful conduct is facially neutral, and there is no
evidence apparent from the record that Twitter applied this policy to Wilson’s tweets in a
discriminatory manner. While Wilson fails to provide the verbatim content of his tweets
and the “profile descriptions” that led to his accounts’ suspension, he does admit that he
used Twitter’s platform to levy “insults” against various public figures and against
homosexuality in general. (ECF No. 2 at 6). The “insults” Wilson deployed consisted of
numerous slurs and derogatory terms for individuals of different sexual orientation and
gender identity. (Id.).
Under these circumstances, Wilson fails to allege that Twitter acted in a
discriminatory manner by suspending his accounts and prohibiting him from utilizing its
platform to hurl insults at others. Wilson does not allege that Twitter was even aware of
any religious motivation behind the conduct for which he was suspended, much less that
Twitter sanctioned him because of his religious motivation, rather than offensive content
itself. The facts contained in Wilson’s complaint simply do not lay out a plausible factual
claim that Twitter’s actions in suspending his accounts were motivated by religious
animus, rather than representing Twitter’s neutral enforcement of its rules prohibiting
harassment on its platform. In other words, assuming that Wilson’s assertion he was

Neither Wilson, nor counsel for Twitter, provided Twitter’s User Agreement. The current version of
Twitter’s User Agreement states that users are not permitted to “promote violence against, threaten, or
harass other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender
identity, religious affiliation, age, disability, or serious disease.” See https://cdn.cmstwdigitalassets.com/content/dam/legal-twitter/site-assets/privacy-policy-new/Twitter-Useragreement-EN.pdf
7

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compelled to create tweets denigrating homosexuality and its practitioners because of a
sincerely held religious belief is true, and assuming that his account was suspended due
to the content of those tweets is also true, he has not successfully established that Twitter
targeted him because of his religious beliefs, rather than because of the content of the
tweets themselves.
Tweets which use offensive language to insult individuals based on their sexual
orientation are prohibited by Twitter regardless of whether those tweets are motivated by
religious or secular beliefs. Therefore, even if Wilson was driven by his religious beliefs to
create content which Twitter found to be in violation of its policy, his personal motivation
does not bar Twitter from enforcing its generally applicable rules regarding user conduct.
See Coral Ridge Ministries, 406 F. Supp. 3d at 1306 (“Yet, the fact that [the plaintiff’s]
opposition to homosexual conduct happens to be rooted in its religious beliefs does not
mean that [the defendant] targeted [the plaintiff] because of its religious beliefs, as
opposed to its belief, full stop, regardless of whether that belief is religiously rooted.”); see
also Fall v. LA Fitness, 161 F. Supp. 3d 601, 607 (S.D. Ohio 2016) (no religious
discrimination claim where the plaintiff was treated no differently than similarly situated
consumers).
As Wilson provides no evidence that Twitter ever had any knowledge regarding the
underlying religious motivations behind the content which led to his accounts’
suspension, nor that it acted in a discriminatory manner in enforcing generally applicable
rules, the undersigned FINDS that Wilson’s complaint fails to set out facts which make
a violation of Title II plausible.
D. Legal Abuse
As a final matter, Wilson objects to Twitter’s motion to dismiss and a telephone
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conversation he had with counsel for Twitter. (ECF No. 20). Wilson asserts that counsel
for Twitter contacted him on February 18, 2020, in order to request an extension for a
filing deadline which he denied. (Id. at 1). Wilson states that during the course of the
conversation, counsel for Twitter inquired whether Wilson was representing himself or if
he had acquired counsel to whom communication should be directed. (Id.). Wilson states
that following this conversation, counsel for Twitter filed a motion to dismiss which
contained “frivolous case references,” secure in the knowledge that Wilson would be
unable to effectively refute their incorrect legal arguments without the representation of
counsel. (Id. at 1-2).
Contrary to Wilson’s allegations, counsel for Twitter did not submit a “frivolous”
motion to dismiss, nor did their arguments in favor of dismissal amount to “legal abuse.”
(Id.). The undersigned has considered Twitter’s contentions at length above and found no
improper citations or legal arguments. Furthermore, to the extent that Wilson objects to
counsel for Twitter’s request for an extension of a filing deadline, he does not describe any
conduct which suggests improper conduct on behalf of counsel for Twitter. As noted by
Twitter, West Virginia Rules of Professional Conduct for attorneys prohibits attorneys
from “communicat[ing] about the subject of the representation with a person the lawyer
knows to be represented by another lawyer in the matter…” See WV R RPC Rule 4.2.
Accordingly, by inquiring whether Wilson was seeking to obtain counsel to whom
communication should be directed, counsel for Twitter was attempting to comply with
local rules governing professional conduct, not attempting to flout them.
Therefore, to the extent that Wilson’s objections to counsel for Twitter’s inquiry is
viewed as a request for sanctions, default judgment, or any other disciplinary action, the
undersigned FINDS this request should be denied.
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In summation, the undersigned has considered the viability of Wilson’s complaint
under all the causes of action asserted by Wilson. Having found that Wilson is unable to
proceed under any of the statutes or provisions of the Constitution mentioned in his
complaint, the undersigned FINDS that his complaint should be dismissed.
IV.

Proposal and Recommendations
For the reasons set forth above, the undersigned RECOMMENDS that the

presiding District Judge GRANT Defendant’s Motion for Dismissal, (ECF No. 14,);
DISMISS the complaint with prejudice, (ECF No. 2); and REMOVE this matter from
the docket of the Court.
Plaintiff is notified that this “Proposed Findings and Recommendations” is hereby
FILED, and a copy will be submitted to the Honorable Robert C. Chambers, United States
District Judge. Pursuant to the provisions of Title 28, United States Code, Section
636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of Civil Procedure, Plaintiff shall
have fourteen days (filing of objections) and three days (if received by mail) from the date
of filing this “Proposed Findings and Recommendations” within which to file with the
Clerk of this Court, specific written objections, identifying the portions of the “Proposed
Findings and Recommendations” to which objection is made and the basis of such
objection. Extension of this time period may be granted by the presiding District Judge
for good cause shown.
Failure to file written objections as set forth above shall constitute a waiver of de
novo review by the District Court and a waiver of appellate review by the Circuit Court of
Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140
(1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727
F.2d 91 (4th Cir. 1984). Copies of such objections shall be provided to the opposing
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parties, Judge Chambers and Magistrate Judge Eifert.
The Clerk is instructed to provide a copy of this “Proposed Findings and
Recommendations” to Plaintiff, and counsel of record.
FILED: May 1, 2020

35