On Friday, the Ninth Circuit dismissed O’Handley v. Weber & Twitter, a First Amendment “jawboning” lawsuit over whether Twitter acted on behalf of the California Office of Elections Cybersecurity (OEC) when it removed political commentator Rogan O’Handley’s tweets about election fraud. The trend of government officials using informal means to pressure social media platforms into taking down or leaving up certain content — known as jawboning — is a growing threat to free speech that should be taken seriously. Yet if courts allowed private social media companies to be sued under the First Amendment for the government’s jawboning actions, this too could undermine free speech online. In O’Handley v. Weber & Twitter, the Ninth Circuit struck the right balance for free speech.
Around the 2020 presidential election, O’Handley tweeted content alleging California’s electoral count was fraudulent. The OEC reported his tweets via Twitter’s Partner Support Portal as “false or misleading” information that violated Twitter’s Civic Integrity Policy. In his complaint, O’Handley argued that because Twitter removed his tweets, and, eventually, his account, after the OEC sent complaints about them, Twitter was effectively acting as a proxy for the OEC’s agenda. This transformed Twitter – a private company not bound by the First Amendment’s constraints – into a constructive state actor. And in its capacity as a state actor, O’Handley argued Twitter violated his First Amendment right to free speech by removing his tweets.
The lower court dismissed O’Handley’s suit, determining the OEC’s reports did not transform Twitter’s content moderation into state action. The Ninth Circuit agreed, adding that Twitter took adverse action against O’Handley’s account “In the aftermath of the January 6, 2021, attack . . . [when] the company revamped its Civic Integrity Policy to ‘aggressively increase . . . enforcement action’ against ‘misleading and false information surrounding the 2020 US presidential election.’” The court concluded there was no sufficient evidence that Twitter’s removal of O’Handley’s content wasn’t merely enforcement of its existing — and independently-set — content moderation policy on election fraud, rather than an act of proxy censorship by the OEC.
Further, it found that O’Handley’s claims failed the Lugar test; a two-part analysis courts use to identify the rare circumstances where private services like Twitter may be considered state actors for constitutional claims.
The Lugar test first asks 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.” Here, the Ninth Circuit found that 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.”
Notably, the Court included a footnote at this part of its analysis referencing the key First Amendment question raised in NetChoice & CCIA’s cases, NetChoice v. Paxton and Moody v. NetChoice. “The district court determined that Twitter has not only the power to control the content posted on its platform but also a First Amendment right to do so . . . We need not reach that constitutional issue to resolve this case.”
Second, the Lugar test asks whether “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” After concluding the OEC’s Partner Support Portal reports did not amount to “coercive power” so strong “that the choice must in law be deemed to be that of the State,” the Ninth Circuit held O’Handley’s claims failed this prong of the test as well.
The Ninth Circuit left open the possibility of holding the government accountable — and of finding state action in private companies’ moderation decisions — for jawboning under a different set of facts. This is critical: government officials must be able to be held accountable, under certain circumstances, for using informal means to pressure online services to remove or leave up certain content. Yet, as the Court noted, “The allegations in O’Handley’s complaint do not give rise to a plausible inference of entwinement between Twitter’s actions and those of state officials” significant enough to find that Twitter’s conduct amounted to state action. “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 Ninth Circuit is right: an alternative ruling in O’Handley’s case would lead to absurd consequences that would distort online services’ – large and small – own First Amendment right to choose what content they host. As we explained in our amicus brief last year in another jawboning case, Changizi v. HHS:
“Government jawboning of social media platforms is a common practice: if a content moderation decision is controversial, the government will almost certainly have complained about it. If any such statement” – or Partner Support Portal complaint – “could lead to a finding that a private social media platform has been transformed into a state actor, claims could be reverse engineered by aggrieved users every time an online service like Twitter makes a controversial moderation decision. To avoid a First Amendment lawsuit over their own editorial judgment over users’ content, online services would be pressured into making moderation choices that intentionally contravene statements from government officials, for fear of being transformed into a state actor.”
Indeed, if courts found that jawboning transforms private services into state actors under facts like O’Handley’s, the platforms would be forced to immediately reinstate accounts or content they may have independently chosen not to host. There are many reasons why Twitter would independently decide to remove election fraud content, including a fear of losing revenue from advertisers or other users, or a genuine belief that it should prioritize tackling the spread of that information.
O’Handley v. Weber & Twitter is an important decision, especially as the Ninth Circuit gears up to hear Donald Trump’s similar case, Trump v. Twitter, later this month. To be sure, government jawboning of online speech should never go unscrutinized. But as the Ninth Circuit correctly noted, not all government requests—especially those made consistent with existing platform policy—transform private content moderation into state action.