62 F.4th 1145
9th Cir.2023Background
- Twitter enforced a Civic Integrity Policy prohibiting misleading election-related content and used a Partner Support Portal to let selected government actors (including California’s Office of Elections Cybersecurity (OEC)) flag posts for expedited review.
- On Nov. 12, 2020, Rogan O’Handley (@DC_Draino) posted a tweet alleging election fraud in California; the OEC flagged the tweet via the Portal a few days later.
- Twitter labeled the tweet as disputed, limited access, assessed a strike, and later (after additional strikes for other posts) permanently suspended O’Handley’s account under its five-strike protocol.
- O’Handley sued Twitter and California Secretary of State Shirley Weber (official capacity) under 42 U.S.C. § 1983, § 1985, the First and Fourteenth Amendments, and state-law claims; the district court dismissed; O’Handley appealed as to Twitter and Weber.
- The Ninth Circuit held Twitter’s moderation was private action (not state action) and affirmed dismissal of federal claims against Twitter; it also affirmed dismissal of the federal claims against Secretary Weber on the merits (though it found standing and limited state-action for the OEC’s flagging).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Twitter’s moderation is state action | Twitter acted as a state actor by cooperating with OEC via the Portal and largely complying with removal requests | Twitter enforced its own user agreement and rules; OEC’s flags were noncoercive requests | Not state action; Lugar two-step fails; nexus and joint-action tests not satisfied |
| Whether Twitter and OEC conspired to violate constitutional rights (§ 1985 / joint action) | Twitter and OEC had a ‘meeting of the minds’ to censor political speech | No specific intent to violate constitutional rights; alignment on removing misinformation is lawful | Dismissed; no plausible allegation of conspiracy/shared illicit intent |
| Standing/redressability to sue Secretary Weber (official capacity) | OEC’s flagging was a but-for/traceable cause of Twitter’s discipline; injunctive relief could redress ongoing harm | Injury was too attenuated from state action to confer standing | Court found standing for injunctive relief (Twitter later restored account), so redressability and traceability satisfied |
| First Amendment (coercion/retaliation), Equal Protection, and vagueness of Cal. Elec. Code § 10.5 against Secretary Weber | OEC coerced Twitter to remove posts; engaged in retaliation; targeted conservatives; § 10.5 is vague | OEC’s communications were persuasive (not coercive); no adverse state action imposed on plaintiff; no factual support for selective-enforcement claim; § 10.5 is a non‑enforceable mission statement | Dismissed under Rule 12(b)(6): no coercion/retaliation, insufficient equal-protection facts, and no viable vagueness claim |
Key Cases Cited
- Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (two-step state-action framework)
- Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288 (2001) (nexus/public entwinement test for state action)
- Blum v. Yaretsky, 457 U.S. 991 (1982) (government encouragement/coercion analysis for state action)
- Tsao v. Desert Palace, Inc., 698 F.3d 1128 (9th Cir. 2012) (joint-action/conspiracy standard)
- Rawson v. Recovery Innovations, Inc., 975 F.3d 742 (9th Cir. 2020) (entwinement and independent-judgment considerations)
- Mathis v. Pacific Gas & Electric Co., 75 F.3d 498 (9th Cir. 1996) (consultation/information sharing insufficient for state action)
- Carlin Communications, Inc. v. Mountain States Telephone & Telegraph Co., 827 F.2d 1291 (9th Cir. 1987) (coercion via threat of prosecution satisfies nexus)
- Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) (coercion vs. persuasion in government requests to intermediaries)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (Article III standing requirements)
- Caldeira v. County of Kauai, 866 F.2d 1175 (9th Cir. 1989) (conspiracy standard under § 1985)
- Prager University v. Google LLC, 951 F.3d 991 (9th Cir. 2020) (private platforms ordinarily not subject to constitutional constraints)