Government Submissions to a Trusted Flagger Program Aren’t Unconstitutional Jawboning–O’Handley v. Weber

March 13, 2023 · by · in Content Regulation

I previously described the plaintiff in this case, Rogan O’Handley, as:

a California lawyer with elite credentials (UChicago Law, practice experience as a corporate finance and entertainment attorney) who nevertheless jumped onto the anti-“elites” Trump train 🙄 and embraced Trump’s Big Lie that the 2020 election was stolen from him….O’Handley uses the online moniker “DC_Draino” (Drain the Swamp, get it?), and he had 400k+ followers at Twitter–until Twitter ultimately kicked him off for earning 5 strikes.

He sued Twitter for cooperating with the California Secretary of State to reduce election misinformation, arguing that the Secretary of State’s jawboning had turned Twitter into a state actor. The district court emphatically rejected the argument and issued an opinion that was a stirring victory for Twitter and freedom of speech and the press, including gem lines like these:

Like a newspaper or a news network, Twitter makes decisions about what content to include, exclude, moderate, filter, label, restrict, or promote, and those decisions are protected by the First Amendment…Twitter has important First Amendment rights that would be jeopardized by a Court order telling Twitter what content-moderation policies to adopt and how to enforce those policies.

[The court doesn’t mention it, but the post-Musk Twitter has restored DC_Draino’s account, and he’s once again actively sharing his “anti-woke” perspectives many times a day. Twitter’s restoration of a suspended account mooted a different case, but the court proceeded here.]

* * *

At issue is Twitter’s Civic Integrity Policy, which apparently remains in place post-Musk (though I’m not sure who’s still around to enforce it). To facilitate the policy, Twitter created a Partner Support Portal that expedited flagging of potentially violative posts by election officials in 38 states, including California’s Secretary of State’s office. That office created an “Office of Elections Cybersecurity (OEC),” which flagged nearly “300 erroneous or misleading social media posts” and publicly touted its 98% success rate for those flags. O’Handley was targeted by one of the OEC flags.

The court starts off with a straightforward proposition: “As a private company, Twitter is not ordinarily subject to the Constitution’s constraints.” (Cite to Prager v. YouTube). O’Handley is grasping for one of the exceptions, but the court summarizes:

this case turns on the simple fact that Twitter acted in accordance with its own content-moderation policy when it limited other users’ access to O’Handley’s posts and ultimately suspended his account. Because of that central fact, we hold that Twitter did not operate as a state actor and therefore did not violate the Constitution

State Action

“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.” The OEC’s 98% success rate “merely shows that these private and state actors were generally aligned in their missions to limit the spread of misleading election information.”

(Citing the 5th and 11th Circuit NetChoice rulings, the court expressly sidesteps how the First Amendment would protect Twitter’s editorial discretion here, making the anodyne statement that “Whether social media companies’ content-moderation decisions are constitutionally protected exercises of editorial judgment has divided our sister circuits recently”).

Nexus Test

There was no state coercion because Twitter was free to ignore the OEC flags. The OEC’s flags were “no strings attached” requests, and compliance was “purely optional.” Thus, “Twitter complied with the request under the terms of its own content-moderation policy and using its own independent judgment.” The court continues:

A private party can find the government’s stated reasons for making a request persuasive, just as it can be moved by any other speaker’s message. The First Amendment does not interfere with this communication so long as the intermediary is free to disagree with the government and to make its own independent judgment about whether to comply with the government’s request…

just as Twitter could pay greater attention to what a trusted civil society group had to say, it was equally free to prioritize communications from state officials in its review process without being transformed into a state actor

Joint Action

There is nothing wrongful about Twitter’s desire to uphold the integrity of civic discourse on its platform. Nor is there anything illicit in seeking support from outside actors, including government officials, to achieve this goal. A constitutional problem would arise if Twitter had agreed to serve as an arm of the government, thereby fulfilling the State’s censorship goals….

this was an arm’s-length relationship, and Twitter never took its hands off the wheel.

Claims Against the Secretary of State

The court distinguishes Bantam Books because Twitter voluntarily created the flagging portal and then decided how to handle each flag. O’Handley claimed that each flag implicitly intimidated Twitter, but “Agencies are permitted to communicate in a non-threatening manner with the entities they oversee without creating a constitutional violation.”

Implications

Jawboning. I’m routinely torn about jawboning cases. Governments often abuse their power to seek censorship via private entities, including using implied threats of retaliation for coercive effects. This happens all the time in foreign countries, but US regulators are not above this fray. At the same time, we want and need the government to protect our health and safety, and that includes sharing information with private entities. Lawsuits like this one try to prey on our fears of government censorship to advance arguments that hurt public health and safety.

Endorsement of trusted flagger programs. The opinion doesn’t use the term “trusted flaggers” but the opinion emphatically endorses voluntary government access to trusted flagger programs. Services should recognize the government’s insatiable appetite for censorship before treating them as trusted flaggers, but this opinion takes the legal issues off the table if services make that choice.

Trump’s cases. Trump’s lawsuits against Twitter, Facebook, and YouTube have devolved into standard jawboning cases. This is now the third time in six months that the Ninth Circuit has rejected claims about social media jawboning (the other two are Huber v. Biden and Doe v. Google). Given the adverse precedent that’s recently accumulated (plus the low-quality lawyering in Trump’s cases), there is no doubt that Trump’s claims will fail should they reach a Ninth Circuit ruling on the merits. However, I’m waiting to see if Twitter’s reinstatement of Trump moots that case.

NetChoice cases. The court acknowledges, but does not engage with, the NetChoice cases involving Texas’ and Florida’s social media censorship laws. Their shadow looms large over the cases. In those laws, the government categorically removes the power of services to moderate content regardless of the services’ editorial preferences–a far more transparently naked exercise of censorship than the OEC’s flags, which the court rightly treats as possibly valuable inputs into the service’s editorial decisions. Anyone who thinks the OEC’s flags were censorship should be even more livid about the Florida and Texas laws.

Case Citation: O’Handley v. Weber, 2023 WL 2443073 (9th Circuit March 10, 2023)

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