Last week, I wrote about an unsuccessful challenge to the activities of the Office of Elections Cybersecurity within the California Secretary of State's office: Is The California Secretary of State Monitoring What You Publish Online? In that case, O'Handley v. Weber, 2023 WL 2443073, the Ninth Circuit Court of Appeals found that the Secretary of State did not violate federal law when it notified Twitter of tweets containing false or misleading information that potentially violated the company's content-moderation policy.
More recently, Judge Terry A. Doughty, who sits in the Western District of Louisiana, refused to dismiss claims for "alleged coercion by the Biden Administration and various government agencies and officials of social-media companies, urging those companies “to censor viewpoints and speakers disfavored by the Left". In this memorandum ruling, Judge Doughty distinguishes O'Handley as follows:
More recently, in O'Handley v. Weber, No. 22-15071, 2023 WL 2443073 (9th Cir. Mar. 10, 2023), the United States Court of Appeals for the Ninth Circuit clarified the distinction between government expression and government intimidation. There, the California Office of Elections Cybersecurity (“OEC”), headed by the California Secretary of State’s office, flagged posts on Facebook and Twitter as erroneous or misleading social media posts. Id. at 3. The companies removed most of the flagged posts, leading the plaintiff to file suit alleging, among other things, violation of the First Amendment. Id. at 2. Noting the distinction between attempts to convince and attempts to coerce, the court stated that “government officials do not violate the First Amendment when they request that a private intermediary not carry a third party’s speech so long as the officials do not threaten adverse consequences if the intermediary refuses to comply.” Id. at 6 (citations omitted). Because the plaintiff failed to allege any threat or attempt at coercion aside from the takedown request, the court held that the plaintiff failed to allege state action through significant encouragement or coercion.
Here, Plaintiffs have clearly alleged that Defendants attempted to convince social-media companies to censor certain viewpoints. (Footnote omitted)
Judge Doughty gave the following examples of some of the alleged threats made by the defendants:
Further, the Complaint alleges threats, some thinly veiled and some blatant, made by Defendants in an attempt to effectuate its censorship program. One such alleged threat is that the Surgeon General issued a formal “Request for Information” to social-media platforms as an implied threat of future regulation to pressure them to increase censorship. Another alleged threat is the DHS’s publishing of repeated terrorism advisory bulletins indicating that “misinformation” and “disinformation” on social-media platforms are “domestic terror threats.” While not a direct threat, equating failure to comply with censorship demands as enabling acts of domestic terrorism through repeated official advisory bulletins is certainly an action social-media companies would not lightly disregard. Moreover, the Complaint contains over 100 paragraphs of allegations detailing “significant encouragement” in private (i.e., “covert”) communications between Defendants and social-media platforms. (Footnotes omitted)
If the defendants ultimately lose, the outcome of this case may simply be that the government will continue to suppress disfavored speech but will do so with seven veils instead of one. It stands to reason that any request from a government agency might reasonably be perceived as including an implicit threat. If the government asks, however nicely, companies may feel the pressure to accede if for no other reason than to stay in the good graces of law makers and regulators.