California Trial Court Allows First Amendment Claim Against L.A. Department of Public Health …

to go forward based partly on allegations that "DPH caused the suspension of [Alliance of Los Angeles County Parents'] Twitter Account."

From Alliance of L.A. County Parents v. County of L.A. Dep't of Public Health, decided last week by Judge William Fahey (L.A. Superior Court):

[Plaintiff] alleges [that] … DPH caused the suspension of Alliance's Twitter account. A bench trial has been set for October 16, 2023….

[D]efendants argue that their actions in reporting the Alliance Twitter account ("Alt Account") were only to identify a "potential impersonation account"' and were not coercive or threatening…. Alliance … argues that defendants improperly coerced Twitter to permanently suspend the Alt Account….

Alliance has … shown that there is a material issue of fact as to whether DPM [likely meaning DPH -EV] improperly used its political connections to coerce Twitter to suspend Alliance's Alt Account…. [T]he parties generally agree that the law is unsettled as to the issue of when a private entity such as "X" becomes a state actor for First Amendment purposes. At the hearing, the parties argued the import of the recent decision of State of Missouri v. Biden.

In the Biden case, the Fifth Circuit Court of Appeals dealt with the issue of government actors who were alleged to have coerced social media platforms to take adverse actions against parties who expressed disfavored viewpoints. The opinion noted that there is a difference on the one hand between "persuasion" by a government actor and, on the other hand, "coercion and significant encouragement." Where that line is drawn depends on the facts of the case.

The Fifth Circuit endorsed the "four factor test" previously relied upon by the Second and Ninth Circuit Courts of Appeal. The factors are: (1) the speaker's word choice; (2) whether the speech was perceived as a threat; (3) the existence of regulatory authority and (4) whether the speech refers to or intimates adverse consequences. In applying those factors to the evidence in Biden, the Fifth Circuit concluded that the FBI and the CDC had coerced and/or significantly encouraged social media platforms to take adverse actions against the plaintiffs in that case. Because the "deprivation of First Amendment rights, even for a short period is sufficient to establish irreparable injury," the Fifth Circuit approved a preliminary injunction as to the FBI, the CDC and a number of named federal officials….

This Court concludes that the Biden case is well reasoned, highly persuasive and should be applied here. In doing so, it cannot be concluded as a matter of law that defendants' actions did not amount to coercion of and/or significant encouragement to X to suspend Alliance's Alt Account. Such a determinaion can only be made following a trial based on the evidence and the reasonable inferences to be drawn therefrom.

Here are the allegations related to the closing of the account (paragraphs 11 to 14 are agreed to by the parties, but the others are just the Alliance's claims):

[11.] On August 5, 2022, Brett Morrow ("Morrow"), LACDPH's Chief Communications Officer, contacted Twitter about an account with the handle @ALT_lacph. He stated: "Please see this newly set up account that may confuse people. Can this be shut down? [¶] https://twitter.com/ALT lacph".

[12.] Twitter's Government & Elections group asked Morrow to "file an impersonation report," which Morrow did.

[13.] In response to Morrow's report, Twitter's Government & Politics group responded, "Our team has determined that the account is not compliant with our policies and will look to solve the issue."

[14.] Twitter ultimately suspended the @ALT_lacph account….

[25.] On July 20, 2022, LACDPH Communications Director Brett Morrow ("Morrow") emailed Twitter's Director of U.S. Public Policy, Lauren Culbertson, for assistance dealing with "harassment" from "anti-maskers" as the County was "likely going to bring back indoor masking."

[26.] Morrow copied Patrick Boland ("Boland") in his July 20, 2022 email to Twitter.

[27.] At the time of the Twitter Exchange, Boland was Chief of Staff to United States Congressman Adam Schiff, and employed as a Staff Member for the House Permanent Select Committee on Intelligence ("HPSCI").

[28.] The subject line of Morrow's July 20, 2022 email to Twitter is "REFERRAL FROM PATRICK BOLAND: LA County Department of Public Health/Staff Harassment on Twitter."

[29.] The first line of Morrow's July 20, 2022 email to Twitter says "I was referred to you by my friend Patrick Boland, who I used to work with in Congressman Schiff's office."

[30.] Morrow's July 20, 2022 email led to an exchange of at least 15 messages between Twitter and Morrow regarding content from "opponents" and "anti- maskers" ("Twitter Exchange"), and the subject line included "REFERRAL FROM PATRICK BOLAND."

[31.] Prior to contacting Twitter executive Lauren Culbertson, Morrow used the "report" function in the Twitter application to report Tweets.

[32.] At the time of the Twitter Exchange, Congressman Schiff was Chairman of the HPSCI.

[33.] The HPSCI has oversight and investigative authority over social media companies, including Twitter, and had been publicly involved in congressional investigations and hearings relating to content moderation on social media and Section 230 reform prior to the Twitter Exchange.

[34.] Prior to the Twitter Exchange, Congressman Schiff publicly expressed an interest in legislation to amend Section 230 of the Communications Decency Act, which provides immunity to social media companies.

[35.] Prior to and following the Twitter Exchange, Congressman Schiff sent letters to social media companies demanding information regarding their content moderation policies….

[47.] On August 5, 2022, Alliance member Cynthia Rojas created a Twitter account known as @ALT_lacph ("Alt Account.") The purpose of the account was to quote tweet all content posted by LACDPH and leave comments open for public discussion.

[48.] In an August 5, 2022 email in the Twitter Exchange, Morrow forwarded a link to the Alt Account Twitter page and asked Twitter "[c]an this be shut down?"

[49.] Twitter told Morrow to file an impersonation report, send Twitter the number, and then Twitter would expedite the case.

[50.] In an August 10, 2022 email in the Twitter Exchange, Twitter thanked Morrow for providing the case number and stated they were moving the case for further review.

[51.] In an August 10, 2022 email in the Twitter Exchange, Morrow asked when Twitter might have an update. Twitter responded the same day that "[o]ur team has determined that the account is not compliant with our policies and will look to solve this issue."

[52.] On August 10, 2022, Ms. Rojas received a violation notice from Twitter stating that the profile name violated the rules against impersonation, and "should clearly indicate that the user is not affiliated with the subject of the account." Twitter explained that "non-affiliation can be indicated by incorporating words such as 'parody,' 'fake,' 'fan,' or 'commentary.'" To unlock the account, Twitter stated: "[m]odify the content that violates our rules… 1 profile name."

[53.] The Alt Account name was then changed from "ALT LA Public Health Account" to "ALT LA Public Health Account – Commentary," and Twitter unlocked the Alt Account.

[54.] Later on August 10, 2022, Morrow again emailed Twitter stating, "On first glance, it looks like it's already been unlocked and they just added "Commentary" to the name, but they aren't really posting commentary. They are just reposting our content."

[55.] On August 23, 2022, Twitter locked the Alt Account again. This time, Twitter stated that the Alt Account violated the rules against impersonation, and could be unlocked if the profile biography was modified.

[56.] At 3:15 pm on August 23, 2022, Ms. Rojas changed the biography from "Unofficial ALT account created for @lapublichealth that allows public debate. We will RT all LA Public Health dept content with comments turned on" to "Commentary ALT account created for @lapublichealth that allows public debate. We will RT all LA Public Health dept content with comments turned on." Twitter then unlocked the account.

[57.] Two minutes later, at 3:17 pm on August 23, 2022, Twitter permanently suspended the Alt Account. Four subsequent appeals by the account owner were denied.

The court also allowed plaintiffs' suit to go forward on the separate theory that the Department violated the First Amendment by closing comments on its social media accounts:

Now pending is defendants' Motion for Summary Judgment ("MSJ"). Defendants first argue that the DPM social media pages were a designated public forum which could be closed or changed "for any reason." Second, defendants argue that their actions in reporting the Alliance Twitter account ("Alt Account") were only to identify a "potential impersonation account"' and were not coercive or threatening….

In its Opposition, Alliance argues that defendants closed the public comment portion of the DPM social media accounts to quash the expression of disfavored views, while allowing public comments deemed less controversial….

Alliance has shown that there are material issues of disputed fact regarding the extent to which respondents have allowed their social media accounts to remain open. Defendants' assertions of "human error" and "sporadic mistakes" raise quintessential factual issues….

Defendants have filed a Reply which concedes that DPH did not completely close public commentary on its social media accounts. But defendants argue that this was due to "human error" and "erratic enforcement" of its policy. The Reply then calculates a de minimis error rate and suggests that this does "not amount to inconsistent enforcement." …

Defendants concede that no published case in California has decided whether a government controlled social media account is a public forum. Defendants then argue, and Alliance agrees, that social media accounts are a designated public forwn. But this is where the parties diverge. Defendants contend that a governmental entity like DPM can close a designated public forum "whenever it chooses." … Alliance, on the other hand, argues that a government entity is not permitted to close either a public forum or limited public forum in order to quash the expression of disfavored viewpoints. Alliance relies on a host of United States Supreme Court cases, including Perry Educ. Ass'n v. Perry Local Educators' Assn (1983) and its progeny. See also Police Department of Chicago v. Mosley (1972) ("government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views."). {Defendants' attempt to distinguish these Supreme Court cases for purposes of the [motion for summary judgment] is unpersuasive given the factual disputes which exist in this case.}

In this case there is a material factual dispute as to whether defendants' admittedly imperfect closure of its social media accounts was benign or an attempt to quash the expression of disfavored viewpoints.

Julie A. Hamill represents the Alliance.