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 di
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