Ninth Circuit Easily Rejects Another Jawboning Case–Huber v. Biden

December 21, 2022 · by · in Content Regulation, Licensing/Contracts

I previously described the case:

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.

In the wake of its dismissal of another jawboning case last month, the Ninth Circuit breezily rejects Huber’s appeal in a very brief memorandum opinion showing how poorly the plaintiff’s arguments resonated with the judges:

  • “the complaint does not contain any nonconclusory allegations plausibly showing an agreement between Twitter and the government to violate her constitutional rights. Contrary to Huber’s argument, the two media reports on which she draws do not plausibly show that Twitter agreed to suspend her account on the government’s behalf.”
  • “Huber’s allegations do not “tend to exclude the possibility” of the alternative explanation that Twitter, in suspending her account, was independently enforcing Huber’s violation of Twitter’s Terms of Service. Indeed, the complaint contains no allegations that Huber did not violate Twitter’s Terms of Service or that Twitter would not have suspended Huber’s account absent the alleged conspiracy.”
  • The Unruh Act claim fails because Huber is an Arizona resident.

I assume the next step is the Supreme Court for an unsuccessful cert petition.

Like most new legal rulings involving Twitter that are being issued after Musk’s acquisition, intervening developments have made this case look weird.

First, while the appeal was pending, Musk released the Twitter Files, which voluntarily disclose evidence purportedly showing substantial federal and state government involvement in Twitter’s content policies. I’m sure Musk has a brilliant strategic plan for handling all of the plaintiffs who will eagerly cite the newly disclosed materials in their lawsuits against the company he now owns, even though he has gutted Twitter’s in-house legal team and apparently stopped paying outside counsel. However, I don’t think any of the Twitter Files items help Huber, at least not yet. Musk hasn’t done his Twitter Files broadside on COVID (though he’s promised that’s coming), and I don’t believe any of the items released to date relate specifically to Huber’s situation.

Second, it appears that the @colleenhubernmd Twitter account remains suspended. However, Musk has unilaterally lifted the suspension of many accounts previously suspended for TOS violations (including such notorious individuals as Andrew Anglin), so I wonder if her account eventually will be restored voluntarily. After all, Twitter has stopped enforcing its COVID misinformation policy, so presumably any COVID misinformation from Huber is now welcomed on Twitter.

In a partially related development, I am no longer regularly posting to Twitter, but you can find my short posts at Mastodon, Post, LinkedIn, and Facebook.

Case Citation: Huber v. Biden, 2022 WL 17818543 (9th Cir. Dec. 20, 2022)

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