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Free Speech

No First Amendment Violation in Twitter Restricting Access to Post Flagged by Cal. Secretary of State


From O'Handley v. Weber, decided Friday in an opinion by Ninth Circuit Judge Paul Watford, joined by Judge Susan Graber and Federal Circuit Judge Evan Wallach:

Rogan O'Handley contends that the social media company Twitter Inc. and California's Secretary of State, Shirley Weber, violated his constitutional rights by acting in concert to censor his speech on Twitter's platform. He alleges that the Secretary of State's office entered into a collaborative relationship with Twitter in which state officials regularly flagged tweets with false or misleading information for Twitter's review and that Twitter responded by almost invariably removing the posts in question. O'Handley further alleges that, after a state official flagged one of his tweets as false or misleading, Twitter limited other users' ability to access his tweets and then suspended his account, ostensibly for violating the company's content-moderation policy….

[We conclude] that Twitter's interactions with state officials did not transform the company's enforcement of its content-moderation policy into state action….

As alleged in his complaint, O'Handley is a licensed attorney who makes his living as a political commentator, including on social media where he operates under the handle "@DC_Draino." On November 12, 2020, just over a week after the presidential election, he posted the following tweet on his Twitter account:

Audit every California ballot

Election fraud is rampant nationwide and we all know California is one of the culprits

Do it to protect the integrity of that state's elections

Five days later, an unidentified member of the OEC allegedly sent the following message to Twitter through the Partner Support Portal:

Hi, We wanted to flag this Twitter post: From user @DC_Draino. In this post user claims California of being a culprit of voter fraud, and ignores the fact that we do audit votes. This is a blatant disregard to how our voting process works and creates disinformation and distrust among the general public.

O'Handley does not allege that the OEC communicated with Twitter about him on any other occasion. But based on past communications between the OEC and Twitter regarding other users, he alleges that the message constituted a request that Twitter "take down" his post from its platform. O'Handley further alleges that, on or about the same day that Twitter received the OEC's message, the company (1) appended a warning label to his tweet stating that the tweet's election fraud claim was "disputed," (2) limited other users' ability to access and interact with his tweet, and (3) assessed a "strike" against his account….

As a private company, Twitter is not ordinarily subject to the Constitution's constraints. Determining whether this is one of the exceptional cases in which a private entity will be treated as a state actor for constitutional purposes requires us to grapple with the state action doctrine…. [To] analyze state action …, we first ask whether the alleged constitutional violation was caused by the "exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible." If the answer is yes, we then ask whether "the party charged with the deprivation [is] a person who may fairly be said to be a state actor." …

O'Handley's claims falter at the first step. Twitter did not exercise a state-created right when it limited access to O'Handley's posts or suspended his account. Twitter's right to take those actions when enforcing its content-moderation policy was derived from its user agreement with O'Handley, not from any right conferred by the State….

Nor did Twitter enforce a state-imposed rule when it limited access to O'Handley's posts and suspended his account for "violating the Twitter Rules … about election integrity." As the quoted message that Twitter sent to O'Handley makes clear, the company acted under the terms of its own rules, not under any provision of California law. That Twitter and Facebook allegedly removed 98 percent of the posts flagged by the OEC does not suggest that the companies ceded control over their content-moderation decisions to the State and thereby became the government's private enforcers. It merely shows that these private and state actors were generally aligned in their missions to limit the spread of misleading election information. Such alignment does not transform private conduct into state action….

We have[, however,] refused to apply the two-step framework rigidly, and we have suggested that the first step may be unnecessary in certain contexts. Given this lack of clarity, we address the framework's second step for the sake of completeness…. The second step … asks whether "the party charged with the deprivation [is] a person who may fairly be said to be a state actor." The Court [has] outlined four tests to determine the answer to that question: (1) the public function test, (2) the state compulsion test, (3) the nexus test, and (4) the joint action test. O'Handley relies only on the nexus and joint action tests. We conclude that neither is satisfied here.

Nexus Test. There are two different versions of the nexus test. The first (and less common) formulation asks whether there is "pervasive entwinement of public institutions and public officials in [the private actor's] composition and workings." In applying this version of the test, we look to factors such as whether the private organization relies on public funding, whether it is composed mainly of public officials, and whether those public officials "dominate decision making of the organization." Twitter lacks all of those attributes, so O'Handley cannot show that Twitter is a state actor under this first version of the nexus test.

The second version asks whether government officials have "exercised coercive power or [have] provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." One circumstance in which this version of the test will be satisfied is when government officials threaten adverse action to coerce a private party into performing a particular act. For example, we had no trouble finding the nexus test satisfied when a deputy county attorney threatened to prosecute a regional telephone company if it continued to carry a third party's dial-a-message service. No equivalent threat by any government official is present in this case. O'Handley has alleged that an OEC official flagged one of his tweets and, at most, requested that Twitter remove the post….

This second version of the nexus test can also be satisfied when certain forms of government encouragement are present. The critical question becomes whether the government's encouragement is so significant that we should attribute the private party's choice to the State, out of recognition that there are instances in which the State's use of positive incentives can overwhelm the private party and essentially compel the party to act in a certain way.

However, nothing of the sort is present here. The OEC offered Twitter no incentive for taking down the post that it flagged. Even construing the facts alleged in the light most favorable to O'Handley, the OEC did nothing more than make a request with no strings attached. Twitter complied with the request under the terms of its own content-moderation policy and using its own independent judgment.

A similar logic exists in our [Circuit's] First Amendment cases. In deciding whether the government may urge a private party to remove (or refrain from engaging in) protected speech, we have drawn a sharp distinction between attempts to convince and attempts to coerce. Particularly relevant here, we have held that government officials do not violate the First Amendment when they request that a private intermediary not carry a third party's speech so long as the officials do not threaten adverse consequences if the intermediary refuses to comply.

This distinction tracks core First Amendment principles. A private party can find the government's stated reasons for making a request persuasive, just as it can be moved by any other speaker's message. The First Amendment does not interfere with this communication so long as the intermediary is free to disagree with the government and to make its own independent judgment about whether to comply with the government's request….

In this case, O'Handley has not satisfied the nexus test because he has not alleged facts plausibly suggesting that the OEC pressured Twitter into taking any action against him. Even if we accept O'Handley's allegation that the OEC's message was a specific request that Twitter remove his November 12th post, Twitter's compliance with that request was purely optional. With no intimation that Twitter would suffer adverse consequences if it refused the request (or receive benefits if it complied), any decision that Twitter took in response was the result of its own independent judgment in enforcing its Civic Integrity Policy…. [T]hat Twitter complied with the vast majority of the OEC's removal requests is immaterial. Twitter was free to agree with the OEC's suggestions—or not. And just as Twitter could pay greater attention to what a trusted civil society group had to say, it was equally free to prioritize communications from state officials in its review process without being transformed into a state actor.

Joint Action Test. A plaintiff can show joint action either "by proving the existence of a conspiracy or by showing that the private party was a willful participant in joint action with the State or its agents." O'Handley has not alleged facts satisfying the joint action test under either approach.

The conspiracy approach to joint action requires the plaintiff to show a "meeting of the minds" between the government and the private party to "violate constitutional rights." O'Handley's allegations establish, at most, a meeting of the minds to promptly address election misinformation, not a meeting of the minds to violate constitutional rights. There is nothing wrongful about Twitter's desire to uphold the integrity of civic discourse on its platform. Nor is there anything illicit in seeking support from outside actors, including government officials, to achieve this goal.

A constitutional problem would arise if Twitter had agreed to serve as an arm of the government, thereby fulfilling the State's censorship goals. As explained above, however, O'Handley has not plausibly alleged that Twitter removed his posts to advance the OEC's purported censorship goals as opposed to Twitter's own mission of not allowing users to leverage its platform to mislead voters.

As to the "willful participant" approach, O'Handley contends that Twitter willfully participated in the OEC's efforts to censor political speech online. He points to former Secretary of State Padilla's description of the OEC's "partnership with social media platforms" and to Twitter's creation of the Partner Support Portal to facilitate input from "select government and civil society partners." O'Handley argues that those allegations of a partnership are sufficient to survive a motion to dismiss. We disagree.

For purposes of the state action doctrine, "joint action exists when the state has so far insinuated itself into a position of interdependence with [the private party] that it must be recognized as a joint participant in the challenged activity." In other words, joint action is present when the State "significantly involves itself in the private parties' actions and decisionmaking" in a "complex and deeply intertwined process." This test is intentionally demanding and requires a high degree of cooperation between private parties and state officials to rise to the level of state action.

As the Supreme Court has noted, "examples may be the best teachers" of what is necessary to meet this demanding standard given the variety of relevant facts that may lead to an attribution of state action. In [one past case], there was sufficient joint action when the Las Vegas police trained private casino security guards and authorized them to issue citations with the force of law. In [another case], we held that joint action was shown when medical professionals who leased property connected to the State's psychiatric hospital involuntarily confined the plaintiff after his arrest, in part based on the prosecutor's "heav[y] involve[ment] in the decisionmaking process."

The allegations in O'Handley's complaint do not give rise to a plausible inference of a similar degree of entwinement between Twitter's actions and those of state officials. The only alleged interactions are communications between the OEC and Twitter in which the OEC flagged for Twitter's review posts that potentially violated the company's content-moderation policy. The fact that the OEC engaged in these communications on a repeated basis through the Partner Support Portal does not alter the equation, especially because O'Handley alleges only one such communication regarding him. The Portal offered a priority pathway for the OEC to supply Twitter with information, but in every case the company's employees decided how to utilize this information based on their own reading of the flagged posts and their own understanding of the Twitter Rules.

The relationship between Twitter and the OEC more closely resembles the "consultation and information sharing" that we held did not rise to the level of joint action in [a different case]. In that case, PG&E decided to exclude one of its employees from its plant after conducting an undercover investigation in collaboration with a government narcotics task force. The suspended employee then sued PG&E for violating his constitutional rights under a joint action theory. We rejected his claim because, even though the task force engaged in consultation and information sharing during the investigation, the task force "wasn't involved in the decision to exclude Mathis from the plant," and the plaintiff "brought no evidence PG&E relied on direct or indirect support of state officials in making and carrying out its decision to exclude him."

The same is true here. The OEC reported to Twitter that it believed certain posts spread election misinformation, and Twitter then decided whether to take disciplinary action under the terms of its Civic Integrity Policy. O'Handley alleges no facts plausibly suggesting either that the OEC interjected itself into the company's internal decisions to limit access to his tweets and suspend his account or that the State played any role in drafting Twitter's Civic Integrity Policy…. [T]his was an arm's-length relationship, and Twitter never took its hands off the wheel….

The court also rejected plaintiff's case against Secretary of State Weber:

First Amendment. O'Handley asserts two theories supporting his First Amendment claim against Secretary Weber, one alleging that the OEC abridged his freedom of speech when the agency pressured Twitter to remove disfavored content, and the other alleging that the OEC engaged in impermissible retaliation against his protected political expression. O'Handley's allegations fail to state a viable First Amendment claim under either theory.

The first theory rests on Bantam Books, Inc. v. Sullivan (1963), which held that a State may not compel an intermediary to censor disfavored speech. Bantam Books and its progeny draw a line between coercion and persuasion: The former is unconstitutional intimidation while the latter is permissible government speech. This line holds even when government officials ask an intermediary not to carry content they find disagreeable.

Here, as discussed above, the complaint's allegations do not plausibly support an inference that the OEC coerced Twitter into taking action against O'Handley. The OEC communicated with Twitter through the Partner Support Portal, which Twitter voluntarily created because it valued outside actors' input. Twitter then decided how to respond to those actors' recommendations independently, in conformity with the terms of its own content-moderation policy.

O'Handley argues that intimidation is implicit when an agency with regulatory authority requests that a private party take a particular action. This argument is flawed because the OEC's mandate gives it no enforcement power over Twitter. Regardless, the existence or absence of direct regulatory authority is "not necessarily dispositive." Agencies are permitted to communicate in a non-threatening manner with the entities they oversee without creating a constitutional violation.

The retaliation-based theory of liability fails as well. To state a retaliation claim, a plaintiff must show that: "(1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action."

O'Handley's claim falters on the second prong because he has not alleged that the OEC took any adverse action against him. "The most familiar adverse actions are exercise[s] of governmental power that are regulatory, proscriptive, or compulsory in nature and have the effect of punishing someone for his or her speech." Flagging a post that potentially violates a private company's content-moderation policy does not fit this mold. Rather, it is a form of government speech that we have refused to construe as "adverse action" because doing so would prevent government officials from exercising their own First Amendment rights.

California has a strong interest in expressing its views on the integrity of its electoral process. The fact that the State chose to counteract what it saw as misinformation about the 2020 election by sharing its views directly with Twitter rather than by speaking out in public does not dilute its speech rights or transform permissible government speech into problematic adverse action.

Equal Protection. O'Handley alleges that Secretary Weber violated the Fourteenth Amendment's Equal Protection Clause because the OEC targeted conservative commentators for special treatment and did not equally scrutinize liberal critics of the electoral process. Uneven enforcement can pose an equal protection issue, but O'Handley has not alleged facts plausibly supporting his speculation of political bias. He does not name any other conservative commentators whose speech the OEC allegedly targeted or identify any "self-identified political liberals" whose false or misleading tweets the OEC allegedly declined to flag. A cursory assertion of differential treatment unsupported by factual allegations is insufficient to state a claim for relief….

Congratulations to Ari Holzblatt (Wilmer Cutler Pickering Hale and Dorr LLP), who argued the case on behalf of Twitter, and Anna Ferrari (California AG's office), who represented Secretary of State Weber.