Section 230 Survives Yet Another Constitutional Challenge–Huber v. Biden

March 21, 2022 · by · in Content Regulation, Derivative Liability, Licensing/Contracts

Twitter suspended Huber pursuant to its COVID misinformation policy. Huber claimed that Twitter took that action in league with the Biden administration. If this setup sounds familiar, that’s because at least a dozen cases riff on this theme. This case had two minor twists. First, this wasn’t a typical pro se suit; actual licensed lawyers were involved. Second, the lawyers could echo Prof. Eugene Volokh’s blog post that was endorsed by Justice Thomas. Despite these advantages, the result was the same as all the others–motion to dismiss granted.

Violation of the First Amendment

Huber acknowledged that Twitter is a private entity. Nevertheless, she claimed Twitter conspired with the government and that converted Twitter into a state actor. Of course there’s no evidence of this:

Plaintiff does not allege that President and Twitter worked hand-in-hand to suspend her Twitter account. She does not even allege that Twitter would not have suspended her Twitter account absent an improper motive or conspiracy. And she does not allege that Twitter failed to exercise independent judgment when it suspended her account…

Plaintiff violated Twitter’s Terms and Service and Twitter has provided a good and sufficient basis to suspend her account…Twitter had clear independent grounds for suspending Plaintiff’s account. It took no action out of the ordinary or in contravention of its clear established authority which have would suggested influence or facilitation by President Biden….Plaintiff presents no facts that indicate Twitter had any real incentive to conspire to violate Plaintiff’s rights

[cites to O’Handley v. Padilla, Doe v. Google, FAN v. Facebook]

The court also rejects that Twitter acquiesced to government demands (emphasis added):

Holding that mere acquiescence by private entities to the government’s encouragement of broad policy is sufficient to establish state action would thereby effectively conscript private actors into service as governmental agents subject to the constraints and obligations of the Constitution. It would substantially obfuscate the line between public and private action under the Constitution….

A broad reading of state action in this context would raise potential First Amendment concerns…Constraining Twitter to First Amendment standards in the exercise of its editorial rights thus itself raises countervailing First Amendment concerns. Accordingly, finding a private entity is a state actor through a claim of conspiracy must require more than a broad brush claim of shared interests.

Amen. Turning private entities into state actors would, in fact, deprive private publishers of their constitutionally protected free speech/press rights. Fortunately, this point is obvious to this judge.

Section 230

Building off the Railway Employees v Hanson and Denver Area cases and Volokh’s blog post, Huber claimed that Section 230 was unconstitutional. The court rejects it for two reasons:

  • It distinguishes Denver Area because “Section 230 does not single out one kind of speech as suitable for private censorship; it protects generally editorial discretion over a wide range of matters.” Cite to Divino.
  • “the viability of the state action holding of Hanson is questionable.” Furthermore, Huber emphasized Section 230’s possible conflict with the Unruh Act, but the court says the Unruh Act doesn’t protect speech.

The court could have cited many other cases that have rejected constitutional challenges to Section 230, including Green v. AOL, 318 F.3d 465, 472 (3d Cir. 2003); Winter v. Facebook, Inc., 2021 U.S. Dist. LEXIS 224836, at *12-13 (E.D. Miss. Nov. 22, 2021); Lewis v. Google LLC, 461 F. Supp. 3d 938, 952-53 (N.D. Cal. 2020), aff’d, 851 F. App’x 723 (9th Cir. 2021); La’Tiejira v. Facebook, Inc., 272 F. Supp. 3d 981, 994-95 (S.D. Tex. 2017); Parker v. PayPal, Inc., 2017 U.S. Dist. LEXIS 130800, at *16-17 (E.D. Pa. Aug. 16, 2017); Richard v. Google; and ADFI v. Lynch. See this blog post for more.

Implications

In his blog post, Prof. Volokh admitted “that his analysis may be mistaken for a number of reasons.” This ruling supports that suspicion. There is no serious debate that the First Amendment permits Congress to adopt speech-enhancing statutes, including Section 230. Legal argument seeking to strip Internet services of their constitutionally protected free speech/press rights by relying on Denver Area–a hopelessly fractured set of opinions–or cases from the railroad context are just not credible. Unfortunately, until we get a definitive Supreme Court ruling, these pro-censorship arguments will continue to swirl.

Despite the plaintiff lawyers’ bravado when they launched this case, they too have become another data point in the essentially unbroken line of failed lawsuits over account terminations and content removals–well over 70 failed suits to date, and growing.

Case citation: Huber v. Biden, 2022 U.S. Dist. LEXIS 48660 (N.D. Cal. March 18, 2022). The First Amended Complaint.

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