EFF Asks Ninth Circuit To Toss Two Stupid Lawsuits Claiming Federal Government Is Moderating Social Media Users
Normally, there wouldn’t be much need to insert yourself into lawsuits involving seriously flawed claims about social media moderation. But these two lawsuits — both losses for plaintiffs claiming the Biden administration conspired to ban their social media accounts — are now in the hands of the Ninth Circuit Court of Appeals, which has delivered some unusual (and terrible) takes on Section 230 and intermediary liability recently.
One of the plaintiffs challenging her loss at the district level is “naturopath” Colleen Huber, who also sued someone for truthfully reporting that Huber’s cures for cancer (intravenous baking soda, vitamin C, etc.) would likely kill anyone who thought this was actual medical advice, suing the Biden Administration because Twitter killed her account after she sent out too much COVID vaccine misinformation.
That lawsuit was tossed (with prejudice) by the lower court in March of this year. The California court says there was no credible evidence backing the allegations that the Biden administration’s meetings with social media heads and expressions of concern about the spread of misinformation formed a conspiracy between Twitter and the government to silence certain users. No First Amendment violation, no Fifth Amendment violation, and no cause of action.
The same thing happened to Rogan O’Handley, an (apparently non-practicing) attorney who saw his “DC_Draino” Twitter account permanently suspended following his continuous posting of election misinformation. That lawsuit alleged pretty much the same thing Huber’s did, only with O’Handley targeting California state officials, rather than the Biden administration. His lawsuit was dismissed with prejudice in January.
The EFF has filed briefs in both cases, asking the Ninth Circuit to recognize what’s being claimed here — a conspiracy between the government and social media services — and recognize that the government expressing concerns about social media moderation is not the same thing as engaging directly in social media moderation. The government can — and often does — have some impact on moderation efforts by social media platforms. But only in narrow cases does that actually cross into something actionable.
“Jawboning,” or when the government influences content moderation policies, is common. We have argued that courts should only hold a jawboned social media platform liable as a state actor if: (1) the government replaces the intermediary’s editorial policy with its own, (2) the intermediary willingly cedes its editorial implementation of that policy to the government regarding the specific user speech, and (3) the censored party has no remedy against the government.
To ensure that the state action doctrine does not nullify social media platforms’ First Amendment rights, we recently filed two amicus briefs in the Ninth Circuit in Huber v. Biden and O’Handley v. Weber. Both briefs argued that these conditions were not met, and the courts should not hold the platforms liable under a state action theory.
In Huber’s case, the EFF points out that while the Biden administration may have voiced its concerns to Twitter about its handling of COVID misinformation, it did not insert itself into the moderation process by replacing Twitter’s policies with one of its own. Nor is there any evidence the government ever saw or discussed the tweets that got Huber banned.
O’Handley’s case is slightly different, in that California’s Office of Election Cybersecurity brought one of his tweets to the attention of Twitter. But that alone is not enough to plausibly allege the government of California stepped in to engage in its own moderation, or that Twitter replaced its own policies with ones crafted by the state.
In both cases, the final prong of the EFF’s “jawboning” definition is still in play. Even if there’s a finding the government crossed the line in these cases, both plaintiffs are still capable of suing the government directly without bringing Twitter into it. If the Appeals Court decides anything can be revived in these two dead cases, it should leave Twitter out of it and allow the plaintiffs to pursue their (likely bogus) claims against the government entities they believe somehow stripped them of their social media accounts.
What the court definitely should not do is become the very thing these plaintiffs are suing over: an extension of the government that orders Twitter — via a decision that undercuts Section 230 protections or places limits on its moderation efforts — to carry content it would rather not carry. That would be the government inserting itself into moderation in a far more direct fashion than is actually alleged anywhere in these two ridiculous lawsuits.