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: https://twitter.com/DC_Draino/status/1237073866578096129 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.

Comments

[Rev. Arthur L. Kirkland]

A member of Trump Litigation Elite Strike Force (Harmeet Dhillon) whiffs again.

She's having a bad month, although failure can be lucrative when the real products are outrage and delusion and the customers are gullible conservatives.

[Randal]

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

Duh.

But at least this'll provide the Jim Jordan comedy improv committee with some good material!

[AmosArch]

Its only bad and worthy of attention if a right of center government does the exact same thing. Then it’ll be an existential threat to democracy and tons of news reports and youtube video essays will be churned out about it with ominous music with thumbnails and backgrounds of marching regiments of snarling stormtroopers and weeping children.

[Alpheus W Drinkwater]

yawn

[Sarcastr0]

Hypothetical hypocrisy strikes again! How do you manage under so much imaginary persecution?

[AmosArch]

Hardly hypothetical, the media regularly gets vapors when conservatives repeat, (usually at a far smaller scale) tactics Dems pioneered. Like when Trump followed Obama’s ‘cutting edge’ strategy of collecting and using social media data in 2016. Or when Republicans start ballot harvesting operations a fraction of the size of Dems who have mastered the art. Or how they’ve OCDed over the January 6th picnic for years now while CHOP and other movements that lasted far longer, resulted in far more death and destruction and literally seized and declared their own territory are all but forgotten in the msm zeitgeist.

[Stephen Lathrop]

AmosArch, nonsense. So long as you remain free to create a publication of your own, and include in it whatever opinions or alleged facts you prefer to publish, no other publisher has power to burden your 1A rights. You are free to speak, and you are free to publish. You do not have any right to compel someone else to publish your expressive choices.

Of course I understand that right-wingers regard that as a taunt, because they think it is all but hopeless to compete on their own with giant social media platforms which are already entrenched in the market. I object as vociferously as you do to the baleful effects of that publishing giantism. The present state of internet publishing is too centralized, and does confer too much power on too few giant publishers.

The only safe harbor for expressive freedom ever found has been policy to encourage profusion and diversity among private publishers. That necessarily means no market domination by any few of them. It is that problem which should get your focus, and it is unwise government policy which enabled that to which you should direct your objections.

The unwise policy which unleashed internet giantism was embodied in Section 230 of the Communications Decency Act. Anyone who wants to correct the current imbalance in public discourse must focus first on unconditional repeal of Section 230. Nothing else can clear the way to restore diversity and profusion to private publishing, and thus deliver a fair diversity of options for expressions of all kinds.

[Jason Cavanaugh]

"The unwise policy which unleashed internet giantism was embodied in Section 230 of the Communications Decency Act. Anyone who wants to correct the current imbalance in public discourse must focus first on unconditional repeal of Section 230."

Another brilliant take.

Care to share with the class why you think destroying the internet as we know it is somehow a solution to your imagined problems?

[Stephen Lathrop]

Jason Cavanaugh, because the internet as you know it is not delivering what a great many people (maybe not you) say they want. And because to get what they want, the only thing those unhappy souls can think to do is to demand government step in. They (admittedly without understanding it) want government to overturn press freedom, with an eye to compel by force existing private publishers to act as conduits for their private opinions.

Meanwhile, they, and I suppose you, reflect not at all on how the giantism you may think you value has undermined news gathering capacity nationwide, and thus degraded the public life of the nation. It is an obstacle to making these points that such a large majority of internet fans do not understand that without the remnant legacy media still at work, almost nothing worth knowing about public life would ever get into their heads. Their ignorance could be far worse than it is now, and if they get what they think they want, it shortly will be.

Most folks think that whatever they see on the internet got there because something about the internet created it. That is not true, or even close to true. Internet fans think otherwise, mostly because they see only the internet, and even tend to avoid manifestations of legacy media on the internet. Thus Fox, and its consequences. Hope you like it.

[Jason Cavanaugh]

It's always amusing to see your imagined horrors. What criteria did you have to meet in order to speak for these 'most' and 'great many people' you seem to believe you're the mouthpiece of?

You utterly failed to make an argument for why section 230 of the CDA is the boogeyman. What I see is nothing more than an old man yelling at a new type of cloud.

[Stephen Lathrop]

Cavanaugh, you were unable to discern that I made no claim to speak for anyone but myself? I was speaking about a claque of internet complainers who at least on this blog, in thread after thread, have been vociferous about their displeasure with social media.

[Jason Cavanaugh]

Nothing about section 230 then?

Is 'social media' the entire internet?

Are you really basing your opinions on statistics you gather from the people who comment here? LOL.

[Stephen Lathrop]

Cavanaugh, also, something about, "destroying the internet as we know it," suggests an unreflective satisfaction with the current state of affairs. Not many seem to share that satisfaction, but if that is you, it does you no credit.

As things stand now, the greatest publishing technology ever created is being mostly wasted. Worse than wasted, actually, it has been turned to degrading the civilization which created it. Widespread inability to imagine more constructive alternatives is a problem.

[David Nieporent]

The only safe harbor for expressive freedom ever found has been policy to encourage profusion and diversity among private publishers. That necessarily means no market domination by any few of them. It is that problem which should get your focus, and it is unwise government policy which enabled that to which you should direct your objections.

The unwise policy which unleashed internet giantism was embodied in Section 230 of the Communications Decency Act. Anyone who wants to correct the current imbalance in public discourse must focus first on unconditional repeal of Section 230. Nothing else can clear the way to restore diversity and profusion to private publishing, and thus deliver a fair diversity of options for expressions of all kinds.

Blah blah blah. Yet again Lathrop comes out in favor of censorship. And yet again he'll deny it and mistakenly say that he's only calling for "private editing" and challenge me to explain how he's wrong. And yet again I will, and he'll run and hide like a little bitch when I do and never respond to the explanation. We've probably done that dance 50 times here.

[Stephen Lathrop]

And yet again he’ll deny it and mistakenly say that he’s only calling for “private editing” and challenge me to explain how he’s wrong. And yet again I will,

Note to bystanders: read Nieporent and find the place where he explains what he says he does. It has been like that right along. The lie about my lack of response has been typical too.

Nieporent is an internet utopian. Like most of that ilk, he can't engage substantively, because he has near-zero grasp of the rudiments of publishing. He knows what he wants. He has no idea why he can't have it. So however detailed my explanations have been, I get back responses like that one above.

[David Nieporent]

Note to bystanders: read Nieporent and find the place where he explains what he says he does. It has been like that right along. The lie about my lack of response has been typical too.

I have explained it dozens and dozens of times here: defamation lawsuits are censorship. You have never been able to grasp that. You favor them, or the threat of them, as a means for suppressing speech.

Nieporent is an internet utopian. Like most of that ilk, he can’t engage substantively, because he has near-zero grasp of the rudiments of publishing.

Lathrop has two modes: "this straightforward thing is really complicated and I'm the only one who can understand it" (history, publishing, firearms) and "this complicated thing is really simple and I know it perfectly because I'm a supergenius" (hydrology).

[David Nieporent]

Note: Lathrop will disappear and never respond to this.

[Sarcastr0]

Hardly hypothetical?

Here is your evidence of persecution: "Its only bad and worthy of attention if a right of center government does the exact same thing. Then it’ll be..."

That is you, making shit up, and then accusing someone of said made up shit.

I know that huge chip on your shoulder takes a lot of work to keep as gigantic as it is, but lets not pretend the speculative is the real, eh? That's Ed's side of the street.

[Nige]

We already know that Trump, while in power, made so many complaints to Twitter they needed a seperate database. So we have already seen a right wing government do the exact same thing.

[Nige]

[Ed Grinberg]

If (when?) there actually are regiments of snarling stormtroopers marching on our streets, and weeping children watching their parents being beaten and dragged off to prison for saying the wrong thing, Randal & Co. will applaud, as long as the stormtroopers have a “D” insignia on their uniforms, and the people being clubbed and thrown in prison are “deplorables.”

[Randal]

Uh huh. Try not to bust a nut fantasizing about me.

[iowatwo]

"We conclude....'

We conclude their is no clown in the circus.

I still don't see under what enumerated power, Govt agents are communicating with twitter over content, that is not a violation of the law. Understanding he SoS is not law enforcement.

[Randal]

Communicating with Twitter doesn't require any "power." You can do it yourself. Try it!

[AmosArch]

So if Republicans started to a similar scale successful effort to order social media companies to censor anything they deemed 'misinformation' all the supporters of this are going to be totally okay with it right?

[Randal]

There's a policy question and a first amendment question. This case is about the first amendment. It protects Twitter here. This is actually a pro-first-amendment decision. Twitter is allowed, by the first amendment, to decide to do the patriotic thing and make an editorial decision to de-emphasize unpatriotic material.

Policy-wise, should the government be actively fighting misinformation? On some level, absolutely! It has an interest in pushing back against lies, and it should definitely take steps to curtail foreign influences. I'm ok with the level seen in this case, where the government is doing exactly what anyone is allowed to do in bringing posts that offend the terms of service to the attention of Twitter. But I was against the Disinformation Board or whatever it was called. And not because of first amendment concerns, but rather because it starts to stink of propaganda. I haven't gotten around to figuring out a principled line that separates those two examples, so in the meantime I would prefer the government to err on the side of caution. Leave social media policing to the interest groups.

But that's a policy question. Not all bad policies are unconstitutional.

[iowatwo]

Censor by proxy is a real thing. That's what is happening here.

[Sarcastr0]

The court examined and explicitly found that was not the case.

[iowatwo]

President DeSantis is going to have a field day with social media

[Nige]

Probably the same sort of field day President Trump had.

[Sarcastr0]

Couldn't win the argument, so over to threats, eh?

[David Nieporent]

President DeSantis is going to have a field day with social media

He already tried, and the 11th circuit smacked him down.

[Stephen Lathrop]

"Censor by proxy," may be a real thing, but I doubt it is even possible for a private publisher to do it voluntarily. The private publisher enjoys constitutionally protected freedom to publish at pleasure, or to not-publish at pleasure, even if what gives it pleasure is knuckling under to government demands, and then live to fight again another day. Come to think of it, that is exactly the tactic the NYT has followed from time to time.

[Randal]

Exactly. We'll know when "censor by proxy" is happening when Twitter itself is trying to stop it.

[Nige]

Trump sent loads of complaints to twitter when he was in power. The Twitter files showed that. Of course he also used it to *spread* misinformation and was protected for the longest time while doing so, so we already know what a right wing government/mainstream social media connection looks like. Or you can go check out Truth Social and the other right wing sites for a reminder of what right wing social media generally looks like.

[iowatwo]

Misinformation?
Aren't you cute.
5 years of Russia, Russia,Russia, Russia, Russia, Russia. with not a shred of evidence, and now you think TRUMP is the guilty spreader of misinformation. Last I heard Kari Lake, had a judicial ruling allowing her challenge of the the ballot handling to go forward.
The judiciary sees enough evidence to continue in Court. Seeking redress is not misinformation.

[Nige]

Last I heard there was quite a lot of evidence that Trump was under investigation for Russian connections and it's normal to report such a thing, going by, eg, emaligate and Benghazi.

I wish Kari Lake luck in her endeavours, but there hasn't been a single shred of evidence that the election was stolen.

[David Nieporent]

Narrator; In fact, there were many many piles of evidence. Also, Trump tended to tear up evidence rather than shred it.

[John F. Carr]

Most Silicon Valley content moderators are willing to do what Democrats want on their own initiative. It will be very hard to prove illegal coercion, just like it's hard to prove government pressure is or was the cause of Fox News' hostility to Democrats.

[Rev. Arthur L. Kirkland]

Most Silicon Valley content moderators are willing to do what Democrats want on their own initiative.

Why would they do that?

Maybe Silicon Valley content moderators tend to have legitimate educations; are not gay-bashers; reside in strong, modern communities; are not old-timey misogynists; prefer reason and science to superstition and silly dogma; are not stale racists; are not immigrant-hating misfits; do not revere QAnon, Alex Jones, and Steve Bannon; do not belong to the Federalist Society or visit the Stormfront message board; and are not on-the-spectrum incels or disaffected culture war losers?

[Dr. Ed 2]

This is bullshyte -- it's like being half pregnant.

If the Sec of State is protected by sovereign immunity in any libel suit which he might file (which it would be), then the libel inherently was state action to which he is entitled to due process.

In other words, for Webber to enjoy the protections of the 11th Amendment, she inherently has to be subject to the 14th. And this is irregardless of the merits of (a) his statements about the election and/or (b) her response thereto because this is about standing.

Conversely, now that the court has ruled that she isn't bound by the 14th, I hope he sues her and forces the court to address the 11th Amendment issue because I don't see how the court can uphold that in light of this ruling.

Again, it is like being half pregnant.

[Noscitur a sociis]

What

[santamonica811]

Nos,
To paraphrase "Animal House;" don't mind Ed...he's one of his rolls.

https://www.youtube.com/watch?v=V8lT1o0sDwI

[David Nieporent]

If the Sec of State is protected by sovereign immunity in any libel suit which he might file (which it would be), then the libel inherently was state action to which he is entitled to due process.

This is gibberish. I mean, it's like a dolphin trying to play the ukulele. It's not just that it's bad legal analysis, though it is; it's that it bears no relation to any of the issues under discussion.

Why is Dr. Ed talking about libel?

And why does he think the court ruled that Weber — whose name he didn't even spell correctly — "isn't bound by the 14th"?

[Brett Bellmore]

So, short of the government empowering somebody to censor communications, this court isn't going to admit that any level of cooperation between government and private actors makes the private actors into state actors.

It's a recipe for comprehensive censorship without the 1st amendment ever kicking in.

[shawn_dude]

If the private actors provide a service to the general public and the government uses that service, is that "any level of cooperation?" I don't think you've thought this through in its general application.

[Brett Bellmore]

If you mean by the government using that service, the government telling the service who to censor, yeah.

[Sarcastr0]

First, learn what censor means.

Second, learn the difference between request and tell.

[JSinAZ]

In the early thirties, “Gleichshaltung” was an ask. Later, it became a demand. Unsurprisingly, modern authoritarians are following exactly that same trajectory, because majoritarian mob warfare is a Hobbesian state for cultural identitarians and racialist politicians.

This is the consequence of political comity being converted from a real political virtue into a kind of State Blasphemy. An actual liberal culture would never support state actors identifying lawful private speech to be suppressed, even if that suppression is farmed-out to private contractors to execute.

By contrast, authoritarian team-players strive to find ways to excuse state action against individuals provided the teams at play suit one’s alignment. What team are you on such that you are excusing state action against people who were not breaking any laws?

[Sarcastr0]

The end of your comment is just some kind of appeal to principle that begs the question.

You have not established the question - you make a slippery slope argument. Albeit one complicated by making it on both a cultural and historical front.

That's not really enough to establish inevitability. Especially since what you are arguing is to nationalize twitter and take away it's rights.

But more importantly, slippery slope is not what people are saying, they are saying that Twitter *is* an agent of the state. That's what I'm arguing against, so this rejoinder is not on point. Though as I said even taken on it's own your argument is weak.

[iowatwo]

Second, learn the difference between request and tell.

Is that your position of the Amarillo Judge asking the lawyers not to publicize the hearing date? Not an order, just asking.

[Toranth]

"It's a private landlord; they can respond to polite government requests for searches whenever they want."
"It's a private ISP; they can respond to polite government requests for the contents of messages whenever they want."
"It's a private restaurant; it can respond to polite government requests to not serve certain groups of people whenever they want."

[Sarcastr0]

Are you saying these twitter requests had the same force as a subpoena?

Not all government speech is the same. This is not hard.

[Toranth]

Who mentioned a subpoena? Twitter, like other private entities, can respond to non-subpoena requests. Ring (the video doorbell company) is accused of happily turning your videos over to the government without any formal request at all, much less a warrant or any other implement forcing them to do so.

But if you see nothing wrong with the police making a casual request to a landlord to see if there's something (or someone) in an apartment, or for an ISP to go reading a subscribers email on the government's behalf, then that's pretty disturbing, even for you.

[Sarcastr0]

So you truly don’t know the difference between a request and an order.

[Randal]

I love the supposedly patriotic right-wingers complaining about government / citizen cooperation. Look who's patriotic now, bitches!

[Brett Bellmore]

Next you're going to describe mobsters selling 'insurance' as "the free market in action, why complain?"

The idea that Twitter actually had a choice here, when Congress was making threatening noises at the same time about Section 230 is a joke.

[Nige]

And yet the horrible twitter files showed them rejecting most requests from government agencies.

[iowatwo]

You have no idea how many request were made.

But I still cant find any jurisdictional power for the FBI to be combing twitter for anything. Unless they had evidence of a criminal nature.

[Nige]

I expect it’s the same power that allows them to read newspapers or watch the television. Twitter is an open, public forum.

[David Nieporent]

The idea that Twitter actually had a choice here, when Congress was making threatening noises at the same time about Section 230 is a joke.

Twitter actually had a choice here. A random legislator discussing potential legislation is not a threat — let alone a random legislator in a jurisdiction unrelated to the people in question.

Yeah, Twitter actually had a choice here. There's not a non-frivolous argument to the contrary.

[Armchair Lawyer]

Ah yes. Government - corporate cooperation, to suppress people's freedoms. Where have I seen this before?

https://en.wikipedia.org/wiki/Fascism

[Nige]

I've got some bad news for you about the military-industrial complex and the surveillance state that might even eclipse the horror of one wee lying tweet getting taken down.

[Armchair Lawyer]

I'm less concerned about the government working hand in hand with Raytheon than I am about the government working hand in hand with Twitter and other media companies.

[Nige]

So this one lying tweet being taken down is fascism but government working hand in glove with massive corporations and tech companies isn't.

[Sarcastr0]

Of course you have never actually read the article you link, or you'd know the definition is not just 'corporations and businesses work to do things.'

[Nige]

'that any level of cooperation'

Seemed pretty specific that what happened here didn't come near to crossing that kind of threshold.

[Stephen Lathrop]

Bellmore, government did not empower somebody to, “censor,” communications. The People, America’s joint sovereign, did that, when they put the press freedom clause in the Bill of Rights. But of course, “censor,” has always been tendentious—foolish people choose that term when they presume other people might be stupid enough to fall for it—expressive freedom for private publishers has nothing to do with censorship.

[David Nieporent]

So, short of the government empowering somebody to censor communications, this court isn’t going to admit that any level of cooperation between government and private actors makes the private actors into state actors.

Pretty much, yeah.

[Jerry B.]

Ninth circuit. What did you expect?

[Bill Falcon]

The very act of a gov entity complaining to a social media outfit seems enough to win the case for the DC Draino. How anyone could support the judge's decision here is beyond belief. Govt has no right to ask the media to censor anyone. The Bolshevik lawyers you congratulated should be ashamed of themselves. This isn't some eastern European corrupt state..well on second thought it is isn't it.

FB operates a digital bulletin board. Other than censoring for making physical threats, the customer has a right to post what they want, or FB is discriminating against said customer. And sellers can't discriminate, can they?

[Randal]

Turns out it's legal to discriminate against dummies.

[santamonica811]

Bill,
You're obviously not a lawyer, so we're cutting you a break. What you learn in law school (well, also in high school Civics class, to be less charitable) is that it is PERFECTLY FINE for businesses to discriminate. *Unless* the business is discriminating against a protected class. For example, a restaurant can refuse to serve people who come in naked. Discrimination? Of course it is--but it's permissible discrimination. Or refuse to serve anyone who comes in screaming the N-word repeatedly. Again, clear discrimination, and clearly legally permitted behavior by the restaurant.

If Facebook (or Twitter, et al) announces, "We are going to discriminate against people posting lies about election fraud.", what on Earth makes you believe that this is something those businesses can't do?

That's a serious question. What information have you heard that leads you to conclude that private companies can't do this sort of thing?

[sparkstable]

IANAL so someone please help me. The government is not a company or other freely associated institution made up of a collection of private citizens. This is the theory that gives corporations 1A rights... it is just the rights of the individual people acting in concert and not actually a right belonging to the firm in and of itself.

What is the argument for the government having any rights, though? It is not created from free association allowing for a pooling of resources for a joint speech effort. It is explicitly created for the protection of all equally, including the various ideas that the people who make up "all" have. Where does the government get a 1A right? A gov employee speaking privately I get. But the gov actor as gov? I don't see where it has such a right. Especially not one that gives it the leeway to act partially to some and not others without first giving due process.

[Randal]

The government doesn’t have any first-amendment rights. But Twitter does. And Twitter is allowed to listen to the government if it wants to. This case is like if someone sued to make it illegal for anyone to say the pledge of allegiance, since the pledge is suggested by the government. But you have a right to say the pledge of allegiance if you want to, so there's no first-amendment problem as long as the government isn’t making you say it. Same here. Twitter has a right to moderate the tweets that violate its terms of service, as long as the government isn’t making them do it.

You’ve also sketched out a potential due-process claim and an equal-protection claim. I think those are both extremely unlikely to go anywhere, since the government isn’t depriving anyone of life, liberty, or property, nor is it applying the policy unequally.

[sparkstable]

"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."

This is what I was referring to. I get that a private actor can freely follow values that track with government wishes. I don't get where the government gets a right to express those wishes, especially to someone with the power to make them happen against private citizens. Once the state says "We want this otherwose legal action reduced!" then you can't reasonably deduce which firms followed freely and which did so only in response. The well is poisoned merely by the state making a biased decree. And that is an issue.

Congress can debate what a law should be while on the floor crafting it. The executive should never express a preference on something not yet decided by Congress. It is philosophically anathema to the idea that the state serves all equally, views all equally, respects all equally and does this without concerning itself with the private lives and views of its masters. The moment the state serves some and not others it has violated the very idea of equal protection.

To avoid this, no state actor (excepting Congress see above) should have a 1A right to express ideas, opinions, preferences, dreams, expectations, etc that have anything to do with legal behavior when they are speaking *as a state actor.*

The quote from the opinion above indicates that the state itself via its actors *do* have the right to pass judgment on legal actions even if they lack the authority to impose it. And doing so is merely the same as asking someone else to do it which is fundamentally wrong.

Again, not that someone is wrong for doing it... but that they are no siding with the state and the *state is siding with them* against other citizens. Free association means this will happen all the time. Same with private 1A rights. But to prevent the undo pressure and obvious bias of the state giving its seal of approval to biased ideologies it should shut the hell up. And a state actor who violates this should lose their job and all future government employment and retirement benefits they accrued in that role. They did not uphold equal deference or respect to citizens thus they did not just fail at their job, they operated against the very principles thar underpin it.

[Voize]

Sparks, I understood your question to be "If the government doesn't have 1A rights, why is it allowed to talk to Twitter?"

It's because
1) The government has broad authority to communicate because so many of its duties entail communication, and
2) There is no law restricting the specific speech at issue here.

Its lack of free speech rights would come into the picture if there were such a law. Say one is passed at the federal or state level prohibiting some level of government from advising or notifying Twitter of its opinions about lawful third party content. That law, which would have clearly violated the first amendment if it applied to people and corporations, has no such problem when restricted to government.

[Carlos Inconvenience]

This all seems a bit like the 9th Circus holding that, as long as the government asked nicely, it can solicit a private party to break into your house and search it without violating the Fourth Amendment

[iowatwo]

Carlos, Exactly.
Cant get a warrant, but I can "ask" Lefty to "find" something for the govt.

But we know the govt has abandoned the constitution, in order to "do the right thing"
Lying on FISA warrants has brought zero repercussions. Just admonishment, to not get caught.

[Randal]

You guys obviously didn't read this paragraph of the opinion from the OP:

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.

[David Nieporent]

This all seems a bit like the 9th Circus holding that, as long as the government asked nicely, it can solicit a private party to break into your house and search it without violating the Fourth Amendment

It's not anything remotely like that, because it's 100% illegal for a private party to break into your house. The government can't ask people to do illegal things.

But it's 100% legal for Twitter to moderate speech in any fashion it wishes. In fact, Twitter has a constitutional right to do that. So it's also legal for the government to ask Twitter to do so.

[dwshelf]

Ideology or application of what the constitution says?

I'm inclined to claim ideology, but still working on it.

[Stephen Lathrop]

This is much simpler than the OP presents it to be. Twitter is a publisher, which enjoys 1A press freedom. That means Twitter can decide at pleasure what to publish, and decide at pleasure what not to publish. Within certain long-standing legal constraints (defamation law, for instance) that means Twitter is empowered to do as it pleases, including to cooperate with government, if that is what it pleases Twitter to do.

And terms of service have nothing to do with any of it.

Disgruntled would-be tweeters may be right to suppose that Twitter and other social media companies are too large, and thus command too big a share of the public life of the nation. If those would-be tweeters would ever get around to that criticism, I would join them in it. Instead, they stupidly demand that government censor a publisher, to force it to host their own contributions, which is the opposite of expressive freedom. It will be a disastrous day for press freedom if the twitterratti ever win that case.

[Ghost of Patrick Henry]

Two Obama judges and one Clinton judge. Protecting the swamp. Government power to coerce is present in everything it does. Twitter knows it will hurt its business not to comply. The 90% compliance rate is not only material, it is decisive. As Senator Schumer pointed out they can get you 90 different ways if you mess with them.
After all, the Gestapo was not an official government entity. Didn't make Pastor Bonhoeffer any less dead.

[Noscitur a sociis]

“Gestapo” is a contraction of “Geheime Staatspolizei”. As the name suggests, it was very much an official government entity.

[santamonica811]

On one hand; I think it's reasonable that the average person doesn't know the etymology of 'gestapo.' On the other hand; if that person knows less about the Gestapo than anyone who's watched at least 2 episodes of "Hogan's Heroes," it does suggest a certain hole in one's education.

[Armchair Lawyer]

It was...and it wasn't.

The Gestapo is an interesting organization. A "secret" police that had a free hand to operate, without needing to answer to the administrative courts. They could do no wrong, violate citizens rights, and the citizens literally couldn't sue them (under the law) to protect their rights.

[Nige]

A kind of heavily armed 'militia,' if you will.

[Sarcastr0]

That sounds like it was, AL.

Aren't you one of those who thinks that the President can telepathically declassify because government? Shocked you're inconsistent about whether real government must be constrained, in service of your usual liberals bad nonsense.

[BrotherMovesOn]

Wrong again, Ghost of Patrick Henry.
I hear the ectoplasm tends to degrade over time.

[Stephen Lathrop]

Here is a power which no one on earth has ever possessed. No speaker in the public square, no pamphleteer fomenting revolution, no partisan-shill scribbler promoting party interest, no newspaper reporter, no broadcast news director, nor any publisher on earth, has ever enjoyed power to publish anonymously; world-wide; cost-free; without government censorship; with impunity from liability; without prior editing; any content whatever. Fulfillment of that preposterous list of demands has never happened.

It has not been rules which prevented it. It has not been technology too limited to accomplish it which stood in the way. It has not happened because so far as anyone has yet discovered, simultaneous delivery of every item on that list is impossible to do.

No practical means to accomplish that list of objectives in its entirety has ever existed, for anyone. The problem is that no matter what laws might say, no matter what technology might accomplish, various items on the list are mutually exclusive as a practical matter. They are at war with each other.

The notion of publishing encompasses various activities which are specific to getting the job done, and to keeping the process going. A publisher must create and curate an audience. A publisher must monetize the audience in some way, or cease publishing. A publisher must have means to recruit or create content, and to distribute it to its audience. A publisher must survive social scrutiny of its activities, which will not be forthcoming if the publisher too often or too severely defames private parties, or if the publisher degrades public life beyond public tolerance.

That list of demands is utopian, because it presumes contrary to fact that all the activities on the list can be accomplished simultaneously. In fact, to accomplish some of those objectives precludes accomplishing others. Internet utopians who demand every item on the list demand power for everyone which not one person has ever had.

Internet utopians do that because they know what they want, because they want everything, and because they suppose someone somewhere has everything. And most of all, internet utopians do that because they have no notion by what means the rudiments of publication are accomplished; in practice, they regard publication as something akin to a natural resource, to be seized by whoever makes a claim.

Thus, overreach dooms internet utopians to a prolonged interval of frustration. That frustration will last until internet utopians reflect a bit on the practicalities of publishing, with an eye to choosing among objectives that activity can deliver, and leaving the others alone. Given that publishing controversies have raged now for years, with near-zero progress toward the required insight, prospects are discouraging. It will be a very long haul, apparently. Along the way, mistaken judgments and ill-founded demands will deliver a lot of collateral damage to expressive liberty, and to the public life of the nation.

[Bored Lawyer]

While this decision is legally correct, there is one problem that every one here is ignoring. Section 230. Twitter and other social media companies rest on its foundation. Some here have even said they would collapse if Section 230 were repealed; I am dubious about that, but they certainly would suffer. This is unique to social media; the NY Times and CNN would survive if Section 230 were repealed.
Where your whole business depends on a governmental immunity, then a request from government to do something takes on a more coercive nature than when it doesn't.

[Sarcastr0]

The government can as easily regulate as repeal. I don't think your distinction is material.

[Bored Lawyer]

Cause you're not thinking enough. Section 230 is the very basis of the social media complex, without which (many have said) it would collapse. That's not the case with regulation. And certainly not potential regulation that has not yet happened.
The closest analogy would be a company that has all its contracts with the government, and by law cannot diversify. There may be companies like that, but they are few and far between.

[Sarcastr0]

You don't think the government couldn't *pass a law* sending any number of industries out of business? Or for that matter simply use regulation? You're not thinking enough.

The idea that Section 230 creates an inherently coercive relationship between the government and all social media companies is belied by the evidence on the ground. Twitter rejected government claims all the time.
It is also overdetermined, requiring you to treat countless businesses as de facto government agents. You want to talk about disruptive?!
And, as I noted at the top, it's also a misunderstanding of the legislative power - even assuming you're right that Section 230 is load-bearing, repealing a law like 230 is the same legally as passing a law, and by that symmetry you lose once again.

[Stephen Lathrop]

Bored Lawyer, that is an easy problem to address. Repeal Section 230 unconditionally, and there will be no threat of coercion. No coercion when you repeal it, and no coercion thereafter.

Conditional demands, made while Section 230 lurks in the background are what create the coercion problem. Of course, those are exactly the kinds of demands both right-wingers and left-wingers have been making, but with different conditions attached.

What that shows is that both sides prefer a rigged publishing system, dominated by giants who are on their side. That is a formula for perpetual unhappiness, self-inflicted, while bypassing and wasting the best benefits of the most efficient publishing technology the world has ever seen. It is not a pretty picture.

Advocates for press freedom will learn to demand public policy to encourage diversity, profusion, and ideological competition among a myriad of smaller private publishers. Repeal Section 230, unconditionally.

[Jason Cavanaugh]

You're the only one who thinks section 230 of the CDA has anything to do with the problems you claim exist.

Seeing as how you can't make a coherent argument as to why you think that, it's my belief that you just don't know what you're talking about, as usual.

[Stephen Lathrop]

Cavanaugh, I have remade that argument multiple times. Because you missed them all, I will give you the abbreviated version to begin to get you up to speed:

The day Section 230 passed it would have been possible to predict that it would:

1. Unleash a flood-tide of libel beyond the capacity of the legal system to redress victims;

2. Largely eliminate the capacity of publications to compete on the basis of the quality of their offerings, because without prior editing every kind of quality assurance for content, not just prevention of libel, would become less practical;

3. Put at immediate jeopardy the nation's news gathering capacity;

4. Create opportunities for giantistic media enterprises far larger than any previously seen;

5. By permitting such media giants to out-compete legacy media still constrained by libel law, Section 230 would winnow the legacy media from the bottom of the market upward, and thus reduce the overall range of opportunities for expressive publication by content providers. That in turn would establish a media ecosystem dominated by decision makers at giant publishers.

6. As always, those giant publishers would wield a 1A-protected ability to decline at pleasure to publish whatever they did not prefer to publish. A radical reduction to the number of publishing decision makers who really counted nationwide would thus force conformity to the views of that smaller but vastly more powerful national cadre. (I confess that my expectation was that the frustrations would fall more on the political left than on the political right; that part has come as a surprise to me.)

7. From that, future demands became predictable for government intervention to control the power of media giants to restrict publishing opportunities—and thus for permanent damage to press freedom from government control imposed by popular demand.

I doubt you credit that so much could be so accurately predicted. I wonder if you even recognize that I have described accurately baleful trends which threaten publishing today. I confess I have you pegged as an internet utopian, who knows what he wants, and not much more, with very little insight about what must happen to deliver what you want.

I did not even hear of Section 230 until a few years after it was enacted, about in 2000. I had been out of publishing for more than a decade. When I did hear of it, most of what I just listed I worked out after a couple of days of reflection. The parts about libel and quality control for content required no thought at all. That was instantaneously obvious. As for the rest, I began at that point to predict to others whom I still knew had an interest in publishing what the future would hold. I turned down some offers on the basis of pessimism engendered by those expectations. That turns out to have been a wise decision.

One point I partly missed until years later—probably not until around 2008—was the full import for publishing business of the internet's capacity to curate audiences by tailoring for content delivery one individual at a time. That is too large and significant a subject to detail now. But it was about at that time that I began publishing online the predictions I numbered in the list above. On this blog, that continued for years with nothing but invective and derision in return. But here we are. Every item on that list has become a salient concern.

Actual prediction has proved that these trends were indeed predictable. It might be worth your while to ask whether your own estimates to the contrary will prove helpful going forward.

[Jason Cavanaugh]

Except that none of what you wrote is true lol.

Section 230 of the CDA isn’t responsible for any of the alleged harms you can’t even prove exist.

[David Nieporent]

and no coercion thereafter.

Defamation lawsuits are coercion.

[Stephen Lathrop]

Nieporent, I will for the sake of this reply concede your point. So what?

Overwhelmingly, the demands for government internet control are motivated not by fear of vicious would-be libelers, but by ordinary folks who want assurance that a publishing ecosystem dominated by a handful of decision makers will not block publication of their opinions. Because opinions incur no libel risk, your point is worth less than you suppose.

If you wanted a more coherent argument, you could argue instead that it would add expense to pre-screen all publications—factual libel risks, and fact-free no-risk opinions alike. But we know that the expense to do that is hardly prohibitive, because major publications already do it successfully and continue in business.

Perhaps in a year or two, some AI application can be trained to the task to distinguish factual content from opinion content, and redirect only the former for human editing, while clearing the latter for publication. That would make the expense trivial.

If you sensibly trained the AI to err on the side of caution about the fact/opinion distinction, a useful capacity to do that would probably not even be a challenge now.

Even if that cannot happen, efficiencies realized when internet publishing displaced ink-on-paper eliminated far more than enough expense to divert whatever amount was needed to edit everything, and still leave a handsome remainder to add to profits. Keep in mind, in the heyday of newspaper publishing, it was highly profitable for the Los Angeles times to print every week a sunday edition with the aggregate weight of a naval cruiser, parcel that weight into trucks, and deliver it piecemeal to newsdealers and doorsteps across the entire sprawling Los Angeles area. That was a task the LA Times performed while publishing 6 other editions per week on the same basis. The internet eliminated every bit of that expense. Just the cost of the truck drivers could pay many times over for any needed editing staff.

But about the libel question, let’s face facts forthrightly. Libel has its fans. Cynics resent controls on libel, because without controls the cynics can wield damaging lies for an array of nefarious purposes, many of them political. Perhaps even more to the point, editing prior to publication empowers a publisher to recognize non-libelous offerings which nevertheless the publishers might otherwise decline to publish. Enabling that constitutionally protected liberty is a good thing. Disabling it is a short route to undermine the public life of the nation.

What should protect liberty to publish not-libel is a thriving marketplace of ideas, characterized by a myriad of diverse publishers, competing to fill every opinion niche capable to support the cost of serving it. An offer one publisher might decline should enjoy a reasonable prospect to be published elsewhere. To do that is affordable now, and will become progressively less expensive shortly.

Given alternatives of either government control of publishing, or cynical and damaging content run wild, who in their right mind would not prefer instead an entirely practical means to edit prior to publication? Especially when that is demonstrably the best means to diversify and multiply content publishing opportunities for everyone, and thus to support the notion of a marketplace of ideas?

[Noscitur a sociis]

How would the California Secretary of State plausibly threaten to repeal section 230 so as to make any request from her office carry to implication of coercion?

[David Nieporent]

Where your whole business depends on a governmental immunity, then a request from government to do something takes on a more coercive nature than when it doesn’t.

That argument proves too much. Everyone's business of every sort depends on the government not passing laws that undermine that particular business's business model. Unless your position is that a government employee can never make any request of any business anywhere, ever, you're going to have to refine your argument.

Also, of course, the California Secretary of State — the actual government agency in question here — cannot repeal Section 230.

[BravoCharlieDelta]

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

Marxist Facsists: "OMG CENSOR HIM SILENCE HIM! WE CAN'T HAVE SAFE, SECURE, AND TRUSTED ELECTIONS SILENCE SILENCE SILENCE (FBI/Antifa, find out where he lives and works and murder him and his normal children!)"

Sincerely,

Democrats Everywhere

[Nige]

You live in a constant state of heightened terror and if it ever flags for an instant you find a way to ramp it up again using any slight pretext.