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EFF at the Ninth Circuit: moderating social media content is not ‘state action’

Former EFF intern Shashank Sirivolu contributed to this blog post.

Social media users who have sued companies for deleting, demonetizing and otherwise moderating their content have tried several arguments that it violates their constitutional rights. Courts have always ruled against them because social media platforms themselves have the First Amendment right to moderate content. The government and the courts cannot tell them what speech they should suppress or, conversely, what speech they should carry. And when the government illegally conspires or coerces a platform to censor a user, the user should only be able to hold Platform responsible for the Governments interference in rare circumstances.

In some cases, under the “state action” doctrine, courts may treat platform action as government action. This may allow a user to hold the platform liable for what would otherwise be a private exercise by the platform of its First Amendment rights. These cases are rare and narrow. “Jawboning,or where the government influences content moderation policies, is common. We argued that courts should only hold a jaw-dropping social media platform accountable as a state actor if: (1) the government overrides the intermediary’s editorial policy with its own, (2) the intermediary voluntarily assigns its editorial implementation of this policy to the government regarding the user’s specific speech, and (3) the censored party has no recourse against the government.

To ensure that the state action doctrine does not nullify the First Amendment rights of social media platforms, we recently filed two amicus briefs in the Ninth Circuit in Huber vs. Biden and O’Handley v. Weber. Both briefs argued that these conditions were not met and that courts should not hold platforms liable under a theory of state action.

In Huber vs. Biden, the plaintiff accused Twitter of conspiring with the White House to suspend a user’s account for violating the company’s policy against spreading harmful and misleading information related to COVID-19. Our brief argued that the plaintiff’s theory was flawed for several reasons. First, the government did not replace Twitter’s editorial policy with its own, but at most informed the company of its concerns about the harms of misinformation about the virus. Second, Huber does not allege that the government ever read, much less spoke to Twitter, about the tweet in question. Finally, because Huber brought the complaint directly against the government, she may have a remedy for her complaint.

In O’Handley v. Weber, the plaintiff accused Twitter of conspiring with the California Secretary of State to censor and suspend a user’s Twitter account for violating company policies regarding election integrity. In direct response to concerns about election interference in the 2016 presidential election, the California Legislature created the Office of Election Cybersecurity within the office of the California Secretary of State. While the Office of Election Cybersecurity notified Twitter of one of the plaintiff’s tweets which it said contained potentially misinformation, there is nothing unconstitutional about the government raising its concerns to a private actor. And while the government has crossed the line, O’Handley has failed to demonstrate that this notification alone caused Twitter to cede its editorial decision-making to the government. On the contrary, Twitter may have considered the government’s perspective, but ultimately made its own decision to suspend O’Handley. Finally, because O’Handley sued the Secretary of State directly, he may have a remedy.

While it is important that internet users have a well-defined avenue to hold social media companies accountable for harmful collaborations with the government, it must be narrow enough to preserve the platforms’ First Amendment rights to preserve and edit. their content. Otherwise, the users themselves will end up being harmed as they will lose access to platforms with varied speaking forums.

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