“Twitter Files” Don’t Help Revive Jawboning Case–Hart v. Facebook

May 14, 2023 · by · in Content Regulation

I previously described this lawsuit:

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.

Hart sought to revive his case based on new information he acquired from a FOIA request, discovery from another lawsuit (Missouri v. Biden), and the Twitter Files. The court still says nope.

With respect to the Twitter Files, “Scott Gottlieb, a board member at Pfizer and a former FDA Commissioner who resigned in 2019—i.e., before the pandemic—wrote to Twitter complaining about one of Hart’s posts…But Dr. Gottlieb was not serving in the government when Hart posted his challenged statements. That means Dr. Gottlieb was acting as a private individual when he complained to Twitter about Hart.”

The rest of Hart’s new evidence goes equally well:

That government officials asked Facebook and Twitter to generally be on the lookout for COVID-related misinformation and contacted the platforms about the prevalence of misinformation do not show that the government exercised dominant control over the social media companies’ action in temporarily restricting Hart’s accounts. And that Facebook offered the government $15 million in ad credit for public health messaging is wholly irrelevant to Facebook’s decision to remove Hart’s challenged posts….

Crawford testified that the CDC held only two be-on-the-lookout meetings with social media companies; that Twitter made its own content-moderation decisions “based on whatever policy they had”; and that the CDC “did not discuss the development of [content-moderation] policies, or the enforcement of [those] policies” with the companies. Thus, contrary to Hart’s argument, Crawford’s deposition testimony from Missouri does not show that the Federal Defendants exerted control over social media companies or that the Federal Defendants and the Social Media Defendants had “a meeting of the minds to violate constitutional rights.”

Since the court’s initial dismissal in this case, the Ninth Circuit has issued a string of decisions rejecting jawboning claims. These intervening rulings have made Hart’s case became even more untenable regardless of the new evidence he secured.

Case citation: Hart v. Facebook Inc., 2023 WL 3362592 (N.D. Cal. May 9, 2023)

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