from the judge-to-trump:-this-is-not-how-any-of-this-works dept
As you probably recall, former President Donald Trump sued various social media companies for kicking him off their platforms, claiming (absolutely ridiculously) that private companies deplatforming the President of the United States violated his 1st Amendment rights, and claiming that Section 230 was unconstitutional. As we noted at the time, this is not how any of this works. The lawsuits have not gone very well. While they were filed in Florida, they were quickly transferred to the proper venue in California, and now Judge James Donato has tossed out the lawsuit against Twitter, and done so easily — though he does allow Trump to try again with an amended complaint (something that will almost certainly be coming).
Judge Donato wastes little time in pointing out the problems with the claim that Twitter moderation violates anyone’s 1st Amendment rights:
Plaintiffs’ main claim is that defendants have “censor[ed]” plaintiffs’ Twitter accounts in
violation of their right to free speech under the First Amendment to the United States Constitution… Plaintiffs are not starting from a position of strength. Twitter is a private
company, and “the First Amendment applies only to governmental abridgements of speech, and
not to alleged abridgements by private companies.”
You don’t say?
There’s this whole concept of the State Action Doctrine that Trump would need to overcome to make this a 1st Amendment issue, and guess what Trump’s lawyers did not do? Yeah, you guessed it. Because you’re smarter than a Trump lawyer.
Plaintiffs’ only hope of stating a First Amendment claim is to plausibly allege that Twitter
was in effect operating as the government under the “state-action doctrine.” This doctrine
provides that, in some situations, “governmental authority may dominate an activity to such an
extent that its participants must be deemed to act with the authority of the government and, as a
result, be subject to constitutional constraints.”… This is not an easy claim
to make, for good reasons. Private entities are presumed to act as such, and maintaining the line
“between the private sphere and the public sphere, with all its attendant constitutional
obligations,” is a matter of great importance, as “[o]ne great object of the Constitution is to permit
citizens to structure their private relations as they choose subject only to the constraints of
statutory or decisional law.” Edmonson, 500 U.S. at 619. “As a matter of substantive
constitutional law the state-action requirement reflects judicial recognition of the fact that ‘most
rights secured by the Constitution are protected only against infringement by governments.’”
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936 (1982) (citation omitted). “Careful
adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the
reach of federal law and federal judicial power.”
Plaintiffs say that the question of whether they have a First Amendment claim on the basis
of the state action doctrine is a factual matter “ill-suited to a Rule 12(b)(6) motion.” …. Not so. It is certainly true that the ultimate determination of state action is a “necessarily
fact-bound inquiry,” Lugar, 457 U.S. at 939, but that does not relieve plaintiffs of their obligation
under Rule 8 and Rule 12(b)(6) to provide in the complaint enough facts to plausibly allege a
claim against Twitter on the basis of state action. See, e.g., Heineke v. Santa Clara Univ., 965
F.3d 1009, 1015 n.5 (9th Cir. 2020) (“Heineke’s contention that it is inappropriate to dismiss his
§ 1983 constitutional claims at the motion to dismiss stage, is unpersuasive. We have accepted his
allegations as true. Because he has failed to plead any allegations sufficient to support his
argument that SCU acted under color of state law, however, his § 1983 claims must fail as a
matter of law.”). To conclude otherwise, as plaintiffs urge, would fly in the face of the pleading
requirements squarely stated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662 (2009).
Here we need to break in, because those two cases, Twombly and Iqbal, are now considered pretty well accepted and fairly standard cases regarding what you need to plead in order to actually plead a claim that can survive a motion to dismiss. The two cases together, nicknamed Twiqbal, stand for the idea that you can’t just randomly plead nonsense and promise to bring actual claims down the road. You have to claim actual factual claims that, if true, would be legitimate. Twombly applied this to antitrust law, and then Iqbal applied the same standard broadly across all federal cases.
Since Iqbal in 2009 this has all been widely understood for anyone practicing in federal courts. Except, apparently, Trump’s lawyers. They tried to argue that Twiqbal only applied to antitrust. The judge dismissed that, well, dismissively, in a footnote:
Plaintiffs make the odd assertion that these pleading standards apply only in antitrust conspiracy
actions. Dkt. No. 145 at 6 n.7. Twombly and Iqbal expressed no such limitation, and their
standards have been applied to a myriad of Rule 12(b)(6) motions in non-antitrust actions in every
federal district and circuit court. A scant minute of online research makes this abundantly clear.
See, e.g., Mendoza v. Amalgamated Transit Union Int’l, 30 F.4th 879, 886 n.1 (9th Cir. 2022)
(labor and employment case); Hoffman v. Preston, 26 F.4th 1059, 1063 (9th Cir. 2022) (Bivens
Anyway, back to the substance. Is this a state action? Well, duh, no.
To start, the amended complaint does not plausibly show that plaintiffs’
ostensible First Amendment injury was caused by “a rule of conduct imposed by the government.”
id. at 835 (cleaned up); see also Mathis v. Pacific Gas and Elec. Co., 891 F.2d 1429, 1432 (9th
Cir. 1989) (“no state, or federal, action unless” a private entity’s decision is “made on the basis of
some rule of decision for which the State is responsible.”) (quotations and citation omitted). The
amended complaint merely offers a grab-bag of allegations to the effect that some Democratic
members of Congress wanted Mr. Trump, and “the views he espoused,” to be banned from Twitter
because such “content and views” were “contrary to those legislators’ preferred points of view.”
See, e.g., AC ¶¶ 53, 55, 60, 61. But the comments of a handful of elected officials are a far cry
from a “rule of decision for which the State is responsible.” Legislators are perfectly free to
express opinions without being deemed the official voice of “the State.” Government in our
republic of elected representatives would be impossible otherwise. It is also not plausible to
conclude that Twitter or any other listener could discern a clear state rule in such remarks, or even
determine what a legislator’s “preferred views” might be.
The weakness of the state action theory in the amended complaint is further demonstrated
by plaintiffs’ own explanation of why their accounts were closed. Twitter is said to have closed
Mr. Trump’s account because of “the risk of further incitement of violence” and “threats to
physical safety.” Id. ¶¶ 114-15. Twitter closed plaintiff Cuadros’s account “due to a post about
vaccines,” id. ¶ 124, and Dr. Wolf’s account for “vaccine misinformation,” id. ¶ 162. Plaintiff
Barboza’s account was closed “after retweeting President Trump and other conservatives on
January 6, 2021,” id. ¶ 137; plaintiff Latella after he “post[ed] positive messages about Republican
candidates and President Trump,” id. ¶ 142; and plaintiff Root for “messages he posted related to
COVID-19 and the 2020 election results,” id. ¶ 152.
If anything, these explanations indicate that Twitter acted in response to factors specific to
each account, and not pursuant to a state rule of decision. These circumstances are not at all
comparable to those in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), as plaintiffs urge. In
that case, which is discussed infra in more detail, a state commission was empowered to compel a
private book distributor from selling or supplying certain books. The amended complaint does not
allege anything like this type of state dictate to Twitter.
Also, the ruling notes that just because some legislators were whining about social media moderation choices, that does not magically turn those websites into state actors:
Paragraph 55 is said to offer “examples
of Democrat legislators threatening new regulations, antitrust breakup, and removal of Section 230
immunity for Defendants and other social media platforms if Twitter did not censor views and
content with which these Members of Congress disagreed.” … The actual quotes do not
live up to that billing. The statements attributed to “Bruce Reed, Biden’s Top Tech Advisor,” and
Michelle Obama are of no moment because Reed and Obama were not legislators…. Other statements in Paragraph 55 pertain only to Facebook, and not Twitter.
… (Senator Markey’s question and Mark Zuckerberg’s answer
regarding Facebook’s algorithms and policies; Rep. Adam Schiff’s Tweet that “Facebook must
ban” Trump). Then-Senator Kamala Harris is quoted three times for calling for “Trump’s Twitter
account [to be] suspended” and calling on Dorsey to “do something about this Tweet” from
Trump, but conspicuously missing is any threatening remark directed to Twitter….
Also, randomly complaining about Section 230 does not change things either:
Five statements are nothing more than general comments about Section 230
(e.g., “We can and should have a conversation about Section 230”) untethered to any substance
that might have conveyed any threat or punishment tied to any specific action by Twitter
The judge then distinguishes the various cases where state action was found, noting that in all of those, the connection to the state, and the clear threats, are much more obvious.
These cases, which are the centerpieces of plaintiffs’ state action argument, are strikingly
different from the allegations in the amended complaint. In each of the cases, a concrete and
specific government action, or threatened action, was identified. Here, plaintiffs offer only
ambiguous and open-ended statements to the effect that “we may legislate” something unfavorable
to Twitter or the social media sector. This is a world away from: (1) a state commission sending
local police officers for drop-in visits and threatening prosecution by the state attorney general
(Bantam Books); (2) a city mayor and police superintendent threatening law enforcement action to
crack down on sit-in demonstrations (Lombard); (3) a deputy county attorney threatening
prosecution against a private company under a specific law (Carlin); and (4) a federal
administrative commission threatening the suspension of licenses or formal rulemaking if its
specified elements for an anti-drug program were not followed voluntarily (Mathis).
Then there’s the part about Section 230. That takes all of two paragraphs to dismiss and only one actually matters (the first one just discusses the nature of the claim about 230 supposedly being unconstitutional):
To establish an injury in fact, a plaintiff must show that he or she suffered “an invasion of
a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical.” Lujan, 504 U.S. at 560 (cleaned up). These facts are entirely absent
from the amended complaint with respect to Section 230. Plaintiffs offer only the vague and
speculative allegation that “[u]pon information and belief, defendants would not have deplatformed the plaintiff or similarly situated putative class members but for the immunity
purportedly offered by Section 230(c).”… Why this might be plausible is left unsaid.
The Court declines to accept such speculative and conclusory allegations as grounds for a
declaratory judgment claim.
Florida’s Deceptive and Unfair Trade Practices claim also doesn’t do well at all. Twitter’s terms say they can remove you for any reason at all, so there’s nothing deceptive going on here:
A good argument can be made that plaintiffs did not plausibly allege deceptive conduct by Twitter
for purposes of either the FDUTPA or the UCL. The TOS expressly states that Twitter may
suspend or terminate an account “at any time for any or no reason.” … It also
states that Twitter may remove or refuse to distribute any content…. There is nothing cagey
or misleading about these provisions, and plaintiffs’ suggestion that Twitter may have applied
them inconsistently,…, or at the government’s behest, does not change that. The
TOS gave Twitter contractual permission to act as it saw fit with respect to any account or content
for any or no reason, which makes its ostensible motives irrelevant for a deceptive practices claim.
Trump also tried to use Florida’s already-declared unconstitutional social media law, and, well, you know how that went. It also fails because only one plaintiff was actually a Florida resident, and the Twitter actions all took place before that law would have come into effect anyway (and, oh yeah, the court blocked it from coming into effect, because it’s unconstitutional):
An initial problem for plaintiffs is that only one named plaintiff (Dominick Latella) was a
Florida resident with any active Twitter account at the time the statute took effect on July 1, 2021,
… and so he is the only plaintiff who might conceivably have a SSMCA claim. See
Fla. Stat. § 501.2041(1)(h) (“user” is “a person who resides or is domiciled in [Florida] and who
has an account on a social media platform.”). The amended complaint alleges that all of the other
plaintiffs were domiciled outside of Florida, or had their Twitter accounts closed prior to July 1,
Another problem is that plaintiffs say they are challenging only conduct that occurred after
the SSMCA effective date…. But the amended complaint focuses on actions affecting plaintiffs’ accounts prior to July 1, 2021. … Consequently, it is unclear what plaintiffs allege to be the potential application of
the statute to their case.
There is also a major concern about the enforceability of the SSMCA. Florida government
officials were enjoined from enforcing the SSMCA on June 30, 2021, the day before the law was
to take effect, in a well-reasoned decision issued by the Northern District of Florida. NetChoice,
LLC v. Moody, 546 F. Supp. 3d 1082 (N.D. Fla. 2021), appeal pending sub nom, NetChoice LLC
v. Attorney Gen., State of Fla., No. 21-12355 (11th Cir.). The court concluded that the statute
violated the First Amendment and was preempted by 47 U.S.C. § 230; it also expressed strong
concerns that the statute was impermissibly vague. The Court declines plaintiffs’ invitation to
disregard this decision, particularly while an appeal is pending, and dismisses the SSMCA claim
Still, the judge allows Trump and the other plaintiffs a chance to amend the complaint, but makes it pretty clear he doesn’t find it likely that they’ll get past any of these hurdles.
All in all this is a nice clean win, exactly as expected. I look forward to the trolls in our comments who were so sure the original case was a winner rationalizing away this ruling, and how the amended complaint or the appeal will magically make this case a winner rather than the obviously frivolous lawsuit it has been from the second it was filed.
Filed Under: 1st amendment, california, content moderation, donald trump, florida, free speech, social media, state action doctrine, state actors, unfair and deceptive