COVID Skeptic Loses Lawsuit Over Account Terminations–Hart v. Facebook

May 8, 2022 · by · in Content Regulation, Derivative Liability

Both Facebook and Twitter restricted Hart’s account access due to various posts over COVID, masking, and other culture war issues. Hart sued them for violating the First Amendment. You can guess how that went. The court says they are not state actors and therefore aren’t required to follow the First Amendment.

Joint Action. “Facebook and Twitter made contemporaneous statements that they took action because they concluded that Hart had violated company policy,” not because of any government directives. With respect to Facebook, it took action on Hart’s accounts months before any of the government statements that supposedly motivated them. The court tartly notes: “Hart fails to explain how Facebook took joint action with governmental actors from the future.”

The judge also says that the government exhortations to the services “are far too vague and precatory to suggest joint action”:

Hart cites no authority for the proposition that vague government advisory documents transform private action into state action. These documents are issued annually by the thousands and do not secretly transform large swathes of the private sector into state actors.

Also,

Because the Federal Defendants did not know about Hart’s post or tweet, they could not have had a ‘meeting of the minds’ as to the disciplinary action those companies took…. The fact that the White House communicated with Facebook and Twitter about the general topic does not transform into state action their decisions about one post or tweet….even if the White House had specifically communicated with these companies about Hart’s post or tweet, their enforcement of its policy as to that post or tweet would still not be joint action. One party supplying information to another party does not amount to joint action

The court says this is an easy conclusion.

Government Coercion. 

the government’s vague recommendations and advisory opinions are not coercion. Nor can coercion be inferred from President Biden’s comment that social media companies are “killing people.” A President’s one-time statement about an industry does not convert into state action all later decisions by actors in that industry that are vaguely in line with the President’s preferences. And Hart has not alleged any connection between any (threat of) agency investigation and Facebook and Twitter’s decisions. Finally, even if Hart had plausibly pleaded that the Federal Defendants exercised coercive power over the companies’ misinformation policies, he still fails to specifically allege that they coerced action as to him

In a footnote, the court adds: “It is still more difficult to understand how general legislative debates, such as those surrounding Section 230, could provide a President with coercive power over a private company sufficient to confer state action.”

Claims Against the President and Surgeon General. Hart lacks Article III standing to challenge their statements. See AAPS v. Schiff.

Implications. The court concludes: “Hart fails to come close to alleging that Facebook and Twitter’s enforcement of their misinformation policies against him were state action.” As a result, it denies leave to amend (unless his FOIA request reveals something good). However, the court declines supplemental jurisdiction over the state law claims, so Hart has the option to pursue those in state court (but at the risk of facing potential anti-SLAPP consequences). Given the lead attorney describes his legal practice as “fighting back against cancel culture,” I doubt we’ve heard the last of this lawsuit.

The court’s reasoning about joint action and government coercion is remarkably similar to the rulings in the Trump v. Twitter case and the Changizi case I’ll blog soon, all three of which came out late last week. It’s a reminder that these lawsuits are both deeply censorial and mockably unmeritorious.

This case joins the many dozens of other failed lawsuits over account terminations/content removals.

Case citation: Hart v. Facebook, Inc., 2022 WL 1427507 (N.D. Cal. May 5, 2022). A press release from the “Liberty Justice Center” hyping the lawsuit. The LJC lawsuit page.

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