Victory at the Ninth Circuit: Twitter’s Content Moderation is Not “State Action”

Earlier this month, the Ninth Circuit held that Twitter did not act as the government by banning a user months after a government agency flagged for Twitter one of his tweets on alleged election fraud. O’Handley v. Weber is the latest decision rejecting social media users’ attempts to hold platforms liable for deleting, demonetizing, and otherwise moderating their content.

Twitter is a private entity, so the government and the courts cannot tell it what speech it must remove or what speech it must carry. The First Amendment restricts censorship only by the government, not private entities, unless those entities are using government power or otherwise effectively acting as the government. But in O’Handley, even if Twitter and the government were “generally aligned in their missions to limit the spread of misleading election information[, s]uch alignment does not transform private conduct into state action.”

Moreover, as we argued in our amicus brief in the case, holding Twitter liable for content moderation would likely violate the platform’s own First Amendment rights. For example, when Twitter took down plaintiff Rogan O’Handley’s tweets and then his account, it made an editorial decision about what content it would publish. 

O’Handley’s lawsuit, relied on the fact that the California Office of Election Cybersecurity flagged one of O’Handley’s tweets for supposedly violating Twitter’s misinformation policy. But as the Ninth Circuit explained, Twitter developed and applied that policy at its discretion, and the government did not order Twitter to take any action. The court said, and we argued in our brief, that Twitter is not a state actor unless it “ceded control” over its content moderation process to the government. In general, the government is free to talk to Twitter, and Twitter is free to listen (or not listen).

The Ninth Circuit pointed specifically to Twitter’s user agreement with O’Handley as justifying the content moderation, and declined to say whether the First Amendment also protects that moderation. But many other courts have dismissed these “must carry” lawsuits under the First Amendment, including the lower court in this case. O’Handley is the Ninth Circuit’s second “published” decision rejecting a must carry lawsuit—the first being Prager v. Google—and provides clear precedent for other courts considering these cases.

Finally, the court said O’Handley had standing to sue the California government for flagging his tweet, but that it ultimately did not violate his First Amendment rights because flagging a tweet was mere government speech and not coercion.