Professional Documents
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Trump v. Twitter (Kozinski)
Trump v. Twitter (Kozinski)
DISCLOSURE STATEMENT
Pursuant to Fed. R. App. Proc. 26.1, the undersigned certifies that Plaintiff
American Conservative Union does not have a parent corporation and that no
s/ Marie L. Fiala
Marie L. Fiala
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TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
ARGUMENT ...........................................................................................................20
I. The District Court Erroneously Concluded That Plaintiffs Had Not
Plausibly Alleged Facts Giving Rise to State Action .........................20
B. The District Court Failed to Apply the Correct Legal Test
for Pleading State Action ..........................................................23
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CONCLUSION ........................................................................................................62
ADDENDUM
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TABLE OF AUTHORITIES
CASES Page(s)
Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970).................................................................................54, 57
Ahearn v. Mayo Clinic,
180 So. 3d 165 (Fla. Dist. Ct. App. 2015) ..................................................... 59
American Family Ass’n v. City of San Francisco,
277 F.3d 1114 (9th Cir. 2002) ...........................................................23, 35, 36
Ashcroft v. Iqbal,
556 U.S. 662 (2009).................................................................................20, 45
Aubrecht v. Penn. State Policy,
389 F. App’x. 189 (3d Cir. 2010) .................................................................. 29
Backpage.com, LLC v. Dart,
807 F.3d 229 (7th Cir. 2015) .......................................................30, 31, 35, 43
Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963).................................................................36, 42, 49, 50, 52
Bell Atl. Corp v. Twombly,
550 U.S. 544 (2007)....................................................................................... 21
Biden v. Knight First Amendment Institute at Columbia Univ.,
141 S. Ct. 1220 (2021)................................................................................... 37
Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971)....................................................................................... 52
Blum v. Yaretsky,
457 U.S. 991 (1982).................................................................................35, 55
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,
531 U.S. 288 (2001)................................................................................passim
Brodheim v. Cry,
584 F.3d 1262 (9th Cir. 2009) ....................................................................... 36
Burton v. Wilmington Parking Auth.,
365 U.S. 715 (1961)....................................................................................... 22
Californians for Disability Rights v. Mervyn’s LLC,
39 Cal. 4th 223 (2006) ................................................................................... 59
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Lee v. Katz,
276 F.3d 550 (9th Cir. 2002) ......................................................................... 26
Lombard v. State of Louisiana,
373 U.S. 267 (1963)........................................................ 34, 40, 49, 51, 52, 54
Lugar v. Edmondson Oil Co.,
457 U.S. 922 (1982)................................................................................passim
Martinex v. UPMC Susquehanna,
986 F.3d 261 (3d Cir. 2021) .......................................................................... 21
Mendocino Env. Ctr. v. Mendocino Cty.,
192 F.3d 1283 (9th Cir. 1999) ....................................................................... 57
Mathis v. Pacific Gas & Elec. Co.,
891 F.2d 1429 (9th Cir. 1989) ........................................ 30, 34, 49, 52, 53, 54
Miller v. Gammie,
335 F.3d 889 (9th Cir. 2003) ......................................................................... 26
Moose Lodge No. 107 v. Irvis,
407 U.S. 163 (1972)....................................................................................... 34
Neighborhood Enters., Inc. v. City of St. Louis,
540 F.3d 882 (8th Cir. 2008) ......................................................................... 29
NetChoice, LLC v. Attorney General, Florida,
34 F.4th 1196 (11th Cir. 2022) ...................................................................... 62
Okwedy v. Molinari,
333 F.3d 339 (2d Cir. 2003) ..............................................................22, 43, 45
Packingham v. North Carolina,
582 U.S. ___, 137 S. Ct. 1730 (2017) ............................................................. 2
Parents for Privacy v. Barr,
949 F.3d 1210 (9th Cir. 2020) ....................................................................... 21
Pasadena Republican Club v. W. Justice Ctr.,
985 F.3d 1161 (9th Cir. 2021) ....................................................................... 26
Patterson v. County of Oneida, N.Y.,
375 F.3d 206 (2d Cir. 2004) .......................................................................... 29
Railway Employees’ Dept. v. Hanson,
351 U.S. 225 (1956)....................................................................................... 32
Rattner v. Netburn,
930 F.2d 204 (2d Cir. 1991) ....................................................................42, 43
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STATUTES
28 U.S.C. § 1291 ........................................................................................................ 5
28 U.S.C. § 1331 ........................................................................................................ 5
28 U.S.C. § 1332 ........................................................................................................ 5
28 U.S.C. § 2201 ........................................................................................................ 5
28 U.S.C. § 2202 ........................................................................................................ 5
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RULES
Fed. R. Civ. Proc. 12(b)(6) ....................................................................17, 20, 22, 55
OTHER AUTHORITIES
Hans Israel, Erich Ruckhaber, & Rudolf Weinmann, Hundert Autoren
Gegen Einstein (One Hundred Authors Against Einstein) (1931).
https://archive.org/details/HundertAutorenGegenEinstein ............................. 2
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INTRODUCTION
This case presents the most important Free Speech issue of our day: Can
government officials use the power of their office to suppress speech they disagree
remove ideas from the public square? Because they know that the government
itself may not engage in such viewpoint discrimination, these officials accomplish
by indirection what the Constitution precludes them from doing directly: They use
social media platforms as cat’s paws to suppress opinions and information about
matters that Americans consider of vital interest—including those that turn out to
be correct or at least debatable, such as that the Hunter Biden laptop was authentic,
the COVID virus leaked from a laboratory, COVID vaccines provide weak
protection that does not outweigh the risk of vaccine injury, and the 2020 election
was stolen.1
Most people once believed these to be crackpot ideas; many still do. But
crackpot ideas sometimes turn out to be true. The earth does revolve around the
sun, and it was Hunter Biden, not Russian disinformation agents, who dropped off
1
This Opening Brief is submitted on behalf of Plaintiffs–Appellants Donald J.
Trump, American Conservative Union, Rafael Barbosa, Linda Cuadros, Dominick
Latella, and Wayne Allyn Root (“Plaintiffs”). Plaintiff–Appellant Naomi Wolf is
separately represented.
1
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his remaining days under house arrest for spreading heretical ideas, and thousands
ideas they disapprove of. But this is not the American way. We believe the path to
Confident in the wisdom of the American people, we believe ideas that survive the
gauntlet of criticism will flourish and those that don’t will fall by the wayside.
As the Supreme Court has recognized, social media platforms are “the most
powerful mechanisms available to a private citizen to make his or her voice heard.”
Packingham v. North Carolina, 582 U.S. ___, 137 S. Ct. 1730, 1737 (2017). This
means that information suppressed on social media cannot reach large segments of
the public, rendering discussion and debate of those ideas difficult, sometimes
impossible. Acting on their own, social media companies are free to allow or
block whatever content they wish. But, as the record documents and more recent
disclosures confirm, social media platforms are not acting on their own. Rather,
2
E.g., Hans Israel, Erich Ruckhaber, & Rudolf Weinmann, HUNDERT AUTOREN
GEGEN EINSTEIN (ONE HUNDRED AUTHORS AGAINST EINSTEIN) (1931).
https://archive.org/details/HundertAutorenGegenEinstein.
2
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Social media companies have very good reasons to fear such threats. They
comprise an industry built from the ground up over the last two decades, founded
gave social media companies and other Internet denizens a golden gift enjoyed by
no one else in the publishing industry: immunity from liability based on hosting or
removing content on their platforms. Investors and developers have grown rich
using a business model premised on that protection; they are, naturally, worried
about threats to remove that protection and destroy their industry. Powerful
governmental actors are well aware of this vulnerability and have exploited it by
getting social media platforms to do for them what the government cannot do
directly: censor ideas they fear, thereby precluding large swaths of the public from
stake. In a poll conducted shortly after the 2020 election, almost half of Biden
voters in key states “were unaware of the financial scandal enveloping Biden and
his son, Hunter (a story infamously censored by Twitter and Facebook, as well as
ignored by the liberal media). According to [the] poll, full awareness of the Hunter
3
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Biden scandal would have led 9.4% of Biden voters to abandon the Democratic
candidate, flipping all six of the swing states he won to Trump, giving [him] 311
electoral votes.”3 Whether or not one credits such polls, the fact remains that
recent efforts to establish a Ministry of Truth and control public discourse on social
The Supreme Court has long been aware that government officials can use
their dirty work for them. In a line of cases dating back almost a century, the Court
officials can convert ostensibly private conduct into state action that is subject to
constitutional constraints. While each situation must be judged on its facts, what
happened here crossed far over the line. The sheer volume and overtness of the
public threats involved (to say nothing of the covert communications now coming
to light) make this an easy case for finding that state action has been sufficiently
3
MJN–164. Plaintiffs have filed concurrently with this brief a Motion for
Judicial Notice (“MJN”) asking the Court to take judicial notice of the appended
judicially noticeable and relevant documents. Page cites to the MJN attachments
appear in the form “MJN–xx.”
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JURISDICTIONAL STATEMENT
2201, and 2202. The District Court entered final judgment in favor of Defendants
on June 7, 2022. 1–ER–2. On June 27, 2022, Plaintiffs timely filed their Notice of
STATUTORY AUTHORITIES
ISSUE(S) PRESENTED
Issues presented for review are: (1) whether Plaintiffs adequately alleged
joint action to bring about Defendants’ conduct, such that the challenged conduct
violates the First Amendment; (2) whether the District Court correctly dismissed
Plaintiffs’ claim under the Florida Deceptive and Unfair Trade Practices Act
(“FDUPTA”), Fla. Stat. §§ 501.201 et seq., based on its choice of law analysis; and
(3) whether Plaintiffs sufficiently alleged standing to bring a claim under Florida’s
such as stating that the virus leaked from a Chinese laboratory or questioning the
3–ER–338, 342; see also 3–ER–343–50, 352–54. On this appeal from a dismissal
order, these facts must be accepted as true; the sole issue for this Court is whether
impose Draconian legal consequences against Defendants and other social media
companies if they did not censor disfavored speakers and speech. 3–ER–335–37.
• Speaker Nancy Pelosi (D–CA), April 12, 2019: “It [Section 230]
is a gift to [tech companies] and I don’t think that they are treating it
with the respect that they should, and so I think that that could be a
question mark and in jeopardy…. I do think that for the privilege of
230, there has to be a bigger sense of responsibility on it. And it is not
out of the question that that could be removed.” 3–ER–336; MJN–
170.
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Defendant Dorsey and other social media CEOs.4 3–ER–337. The coercive,
4
These included a Senate Commerce Committee hearing on October 28, 2020; a
Senate Judiciary Committee hearing on November 17, 2020; and a House Energy
and Commerce Hearing on March 25, 2021.
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• Rep. Frank Pallone, Jr. (D–NJ): “The time has come to hold
online platforms accountable for their part in the rise of
disinformation and extremism…. [I]t is time for Congress and this
Committee to legislate and realign these companies’ incentives to
effectively deal with disinformation and extremism…. So when a
company is actually promoting this harmful content, I question
whether existing liability protections should apply…. That is why
you are here today … Mr. Dorsey…. The time for self-regulation is
over. It is time we legislate to hold you accountable.” 2–ER–139-
40; 3–ER–338 (emphasis added).
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These threats were effective because they targeted the chink in social media
the Executive Branch, clearly linking adverse government action to calls for more
January 17, 2020, candidate Biden stated in an interview with The New York
Times’ editorial board: “The idea that it’s a tech company is that Section 230
9
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and other platforms.” He further said: “It should be revoked because it is not
threats: “We will hold social media platforms responsible for the hate infiltrating
their platforms…. And if you … don’t police your platforms—we are going to
announced that President Biden was considering repealing Section 230’s liability
viewpoints:
3–ER–352–53; see also MJN–172–173. When asked whether President Biden was
considering amending Section 230 to keep social media outlets from spreading
false information, Ms. Bedingfield responded: “We’re reviewing that and certainly
they should be held accountable. And I think you heard the president speak very
ecosystem.” Id.
10
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Since taking office, the Biden administration has acted aggressively to bully,
encourage, and collude with social media companies to censor speech that departs
from the “party line” regarding COVID vaccines and treatments, one of the
Psaki gave a press conference at which she linked the threat of antitrust
and that the President’s “view is that there’s more that needs to be done to ensure
that this type of misinformation … is not going out to the American public.”
(emphasis added). In a July 15, 2021 press briefing, the Surgeon General
explicitly said that the CDC wanted social media companies to “take action
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At the same press briefing, Ms. Psaki admitted that senior government
officials acted in concert with social media platforms to censor speech: “[W]e are
in regular touch with these social media platforms, and those engagements
further admitted that “[w]e engage with them [i.e., social-media companies]
regularly and they certainly understand what our asks are.” MJN–55. The next
day Ms. Psaki called for social media companies to coordinate with each other in
censoring disfavored speakers. “You shouldn’t be banned from one platform and
not others ... for providing misinformation out there.” 3–ER–349–52. Ms. Psaki
“tak[e] faster action against harmful posts,” and “promot[e] quality information
messages. 3–ER–349–52.
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speech that does not comply with Democratic officials’ preferences. Defendant
[Twitter’s] policy and enforcement decisions,” and would continue working with
information. 2–ER–122, 125–26, 130. The following exchange took place during
MJN–21 (emphases added). And, more of the same at the March 25, 2021 hearing:
Rep. Doyle: “Oh, I know you have a policy, but will you
take the sites [questioning integrity of 2020 Presidential election]
down today?”
As is now evident, that was only the beginning of a war on free speech.
The government’s censorship-by-proxy that has come to light since this case was
General in a lawsuit against the U.S. alleging Free Speech violations provide a
window into a massive federal “Censorship Enterprise” in which the White House,
State Department, and an alphabet soup of agencies including HHS, DHS, CISA,
the CDC, the FBI, the FDA, and others, regularly coordinate with social media
platforms about suppressing speech that disagrees with the government’s preferred
narratives and taking action against citizens who post such content. MJN–76–78.
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Federal officials are deeply embedded in a joint enterprise with social media
officials meet regularly with senior executives at Twitter and other platforms to
consulting with the social media platforms about censoring specific speech, and
regular chats,” says one such message from Twitter to the CDC. “[M]y team has
“Thanks so much for this,” a Twitter official writes in response to a CDC email
which is headed “Request for problem accounts” and identifies accounts targeted
for censorship. “[W]e actioned (by labeling or removing) the Tweets in violation
Deputy Assistant to the President Rob Flaherty tells colleagues that Twitter will
inform “White House staff” about “the tangible effects seen from recent policy
15
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previous policy changes, and ways the White House (and our COVID experts) can
partner in product work.” MJN–81. Twitter has even created a secret channel for
Congress reveal that the Department of Homeland Security has been designated as
state, the agency “can empower [Twitter and other social media] partners to …
and Hawley have asserted that these documents indicate that DHS is “seeking an
Mayorkas. MJN–73.
And yet more. As has also recently become public, shortly before the 2020
16
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York Post article detailing how Hunter Biden used his father’s position and
influence for personal gain, with the apparent awareness and profit-participation of
above, this government-coerced censorship may well have changed the election
results. MJN–164–166.
2021 on behalf of a putative class and filed their First Amended Complaint
was transferred to the Court below on October 26, 2021 and assigned to The Hon.
Defendants moved to dismiss the FAC under Fed. R. Civ. Proc. 12(b)(6).
3–ER–408. Plaintiffs opposed the motion and simultaneously filed a request for
judicial notice of certain governmental records, id., which was granted by the
District Court. 1–ER–10. The preliminary injunction and dismissal motions were
heard on February 24, 2022. On May 6, 2022, the District Court entered its order
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SUMMARY OF ARGUMENT
before and after the 2020 election and permanently suspended it on January 7,
None of Democratic officials’ pressure tactics were subtle; many were not
even covert. Senate and House committees convened multiple hearings at which
Defendant Dorsey and other social media CEOs were required to appear and be
down, announced criteria for what they viewed as “disinformation” and enlisted—
media platforms’ cooperation in censoring speech. And the evidence that has
5
Defendants exercise various means of censorship, including terminating or
suspending accounts, “shadow banning” speakers, adjusting algorithms to suppress
or de-emphasize speakers or messages, and placing warning labels on content.
3–ER–327, 354–61, 365, 367–68, 375.
18
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surfaced since the case was dismissed reveals the most serious, coordinated, and
Defendants and other social media platforms to target users posting disfavored
(3) joint action between Defendants and the government to suppress disfavored
would have come to light, proving the truth of Plaintiffs’ claims. Instead, the
District Court dismissed the action, notwithstanding that Plaintiffs’ allegations are
significantly more extensive and detailed than those presented in Supreme Court
and Ninth Circuit cases where state action was found to exist. It also dismissed the
state law claims for lack of standing. The Court arrived at that result by
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Amendment and state law claims; failing to credit Plaintiffs’ allegations or flatly
ARGUMENT
A. Legal Standards
The District Court’s dismissal under Fed. R. Civ. Proc. 12(b)(6) is reviewed
de novo. In re Alphabet Securities Litig., 1 F.4th 687, 698 (9th Cir. 2021).
The Rule 8 pleading standard “does not require ‘detailed factual allegations,’
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a Rule 12(b)(6)
motion, all well-pleaded allegations of material fact are taken as true and construed
most favorably to the non-moving party. Keates v. Koile, 883 F.3d 1228, 1234
(9th Cir. 2018). Moreover, “plaintiffs should be given the full benefit of their
Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699 (1962)
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together with “matters of which a court may take judicial notice,” Alphabet
Securities Litig., 1 F.4th at 693–94, and “all factual inferences [drawn] in the light
most favorable to the plaintiff,” Parents for Privacy v. Barr, 949 F.3d 1210, 1221
(9th Cir. 2020), “suggest that the claim has at least a plausible chance of success.”
In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1107 (9th Cir. 2013).
“Plausible does not mean probable.” Martinex v. UPMC Susquehanna, 986 F.3d
261, 265 (3d Cir. 2021). Rather, a plausible claim is one that “raise[s] the right to
relief … above the speculative level,” even if “it appears ‘that a recovery is very
remote and unlikely.’” Bell Atl. Corp v. Twombly, 550 U.S. 544, 556 (2007)
(citation omitted).
A private party’s conduct becomes state action when it (1) “results from the
State’s exercise of ‘coercive power,’ when (2) the State provides ‘significant
Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001) (citations omitted)
(emphasis added). The test for determining whether state action exists is highly
fact specific. The Court must engage in a nuanced and “necessarily fact-bound”
inquiry, Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982), to which no
single rubric can supply the answer. “[T]o fashion and apply a precise formula for
21
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‘impossible task’ which ‘[t]his Court has never attempted.’” Burton v. Wilmington
Parking Auth., 365 U.S. 715, 722 (1961) (citation omitted). See also Brentwood,
531 U.S. at 295 (existence of state action “is a matter of normative judgment, and
the criteria lack rigid simplicity … [no] one fact can function as a necessary
condition across the board ... nor is any set of circumstances absolutely
sufficient”). The state’s entanglement can consist solely of “winks and nods.” Id.
at 301. A state action determination thus requires the Court to “consider the full
factual context of [the] case,” Rawson v. Recovery Innovations, Inc., 975 F.3d 742,
751 (9th Cir. 2020). “Only by sifting facts and weighing circumstances can the
coercion in plaintiff's favor. See, e.g., Okwedy v. Molinari, 333 F.3d 339, 344 (2d
Cir. 2003) (district court “should have viewed the language of [the official’s] letter
in the light most favorable to plaintiffs” and thus should have found coercion
adequately alleged). The test is whether a reasonable person could view the
22
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Ass’n v. City of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002).
B. The District Court Failed to Apply the Correct Legal Test for
Pleading State Action.
The District Court concluded that Plaintiffs had failed to plead state action
under the “rule of conduct” test articulated in Lugar and repeated, with a material
alteration, in Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826 (9th
Cir. 1999). The District Court described its inquiry thus: “The specific question
the Court must answer here is: have plaintiffs plausibly alleged that Twitter was
their accounts?” 1–ER–7–8 (citing Sutton) (emphasis added); see also 1–ER–8
of coercion because “[i]t is … not plausible to conclude that Twitter or any other
listener could discern a clear state rule in such remarks”) (emphasis added).
a new state action test, satisfaction of which, as this Court has recognized, by itself
suffices to plead a viable state action claim; a “governmental policy” or “clear state
rule” is not required. Additionally, the Supreme Court has modified the rule that
was adopted in Lugar and paraphrased in Sutton. Plaintiffs’ FAC passes muster
under both tests. The District Court erred by failing to consider whether Plaintiffs
adequately pleaded state action under the alternative test announced by the
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Supreme Court in Brentwood or under the modified Lugar rule (assuming it is still
good law).
In Sutton, this Court discussed the test for determining whether a defendant
“under color of state law.” 192 F.3d at 835. For a claim to proceed, Sutton said, a
plaintiff must show that the “deprivation [of a federal right] results from a
governmental policy” and that the defendant is “a person who may fairly be said to
based the “governmental policy” requirement on Lugar but failed to quote Lugar
“rule of conduct” articulation. See Lugar, 457 U.S. at 937 (deprivation “must be
Nearly twenty years after Lugar and two years after Sutton, the Supreme
[S]tate action may be found if, though only if, there is such a “close
nexus between the State and the challenged action” that seemingly
private behavior “may be fairly treated as that of the State itself.”
… Our cases have identified a host of facts that can bear on the
fairness of such an attribution. We have, for example, held that a
challenged activity may be state action [1] when it results from the
State's exercise of “coercive power,” [2] when the State provides
24
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requirement. In fact, the Supreme Court has never applied that test since
Brentwood. Rather, the Court made clear that state action “may be found” if there
is a sufficient “nexus” between the private party and the state, with the existence of
such “nexus” assessed under each of the three tests quoted above. Id. at 295.
This Court has recognized en banc that, notwithstanding Lugar, the Supreme
Court declared in Brentwood a new test for determining whether a private entity
In Lugar v. Edmondson Oil Co., the Supreme Court created a two step
analysis for determining whether or not there was state action by a
private actor sufficient to establish liability for a constitutional tort.
The first inquiry was “whether the claimed deprivation has resulted
from the exercise of a right or privilege having its source in state
authority.” The second was “whether, under the facts of this case, …
[the] private parties, may be appropriately characterized as ‘state
actors.’” In [Brentwood], the Court introduced a multi-factored test.
The inquiry is a general one: “[S]tate action may be found if, though
only if, there is such a ‘close nexus between the State and the
challenged action’ that seemingly private behavior ‘may be fairly
treated as that of the State itself.’”
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Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 954–55 (9th Cir. 2008) (en
banc) (citations omitted; ellipsis in original; emphasis added).6 This Court has also
expressly found that satisfying any one of the Brentwood tests is sufficient by itself
Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002) (citations omitted; emphasis added);
see also Pasadena Republican Club v. W. Justice Ctr., 985 F.3d 1161, 1167 (9th
Cir. 2021) (“[s]atisfaction of any one [Brentwood] test is sufficient to find state
action”); Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 747 (9th Cir. 2020)
(state action determined solely under Brentwood’s public function, joint action,
6
Villegas cites Sutton once but does not mention the “governmental policy”
language on which the District Court below relied and does not harmonize the two
opinions. Insofar as there is any conflict between Villegas and Sutton, this Court is
bound to follow Villegas, a later en banc ruling. In any event, this Court can
consider Sutton “effectively overruled,” insofar as it purports to make the existence
of a “governmental policy” the exclusive test for finding state action, because “the
reasoning or theory of [Sutton] is clearly irreconcilable with the reasoning or
theory of [Brentwood and Villegas]….” Miller v. Gammie, 335 F.3d 889, 893 (9th
Cir. 2003) (en banc).
26
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language); Kirtley v. Rainey, 326 F.3d 1088, 1092–95 (9th Cir. 2003) (Court
applied Brentwood test to determine whether private actor was acting under color
The Supreme Court has never said whether the Brentwood test supplants
Lugar’s analysis or whether the former is merely an alternative to the latter. Nor
does that question need to be answered here. Whichever is the case, the Supreme
Court and this Court undoubtedly have held that pleading facts that satisfy any one
of the Brentwood tests is enough for a state action claim to proceed. The District
Court erred by terminating its analysis at Lugar and Sutton without also
Even if the Lugar test remains good law as an alternative to Brentwood, the
District Court failed to apply it consistently with the Supreme Court’s and this
The so-called “first prong” of Lugar says that private conduct can be
attributed to the state where “deprivation [of a federal right is] caused by the
imposed by the state or by a person for whom the State is responsible.” 457 U.S.
27
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at 937. The Supreme Court since has abridged this part of the Lugar test, as
follows:
West v. Atkins, 487 U.S. 42, 49 (1988) (citing Lugar) (emphasis added; ellipsis in
original). In other words, under West, the first prong of Lugar is satisfied where
“a person for whom the State is responsible.”7 Where the second condition is met,
Brentwood laid out the tests for determining whether a private party was, in given
West decisions have cited to and relied on West’s reading of Lugar. See, e.g.,
7
The portion of Lugar on which the District Court relied is ambiguous:
“deprivation…caused [1] by the exercise of some right or privilege created by the
State or [2] by a rule of conduct imposed by the state or [3] by a person for whom
the State is responsible.” 457 U.S. 937 (bracketed material added). The District
Court read the third clause as merely one of two possible conditions modifying the
phrase “rule of conduct” in the second clause. However, in West the Supreme
Court applied the third clause as an independent test for determining whether a
“deprivation” results from state action.
8
West’s construction of Lugar also squares any seeming inconsistency between
that decision and Brentwood. As the law stands after West, state action exists
where the alleged violation was caused by “the exercise of some right or privilege
created by the State,” or by “a person for whom the State is responsible,” with
Brentwood supplying the analysis for the second prong of the test.
28
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Florer v. Congregation Pidyon Shevuyim, 603 F.3d 1118, 1122 (9th Cir. 2010)
(“To constitute state action, the deprivation must be caused by the exercise of some
right or privilege created by the State or by a person for whom the State is
This reading of Lugar finds indirect but strong support in this Court’s recent
public social media pages after plaintiffs, the parents of children in the school
district, posted long and repetitive comments criticizing the trustees and board.
The parents sued, claiming that their ejection from the social media pages by the
trustees violated the parents’ First Amendment rights. Applying Brentwood, this
Court found that the trustees were acting under color of state law. When the case
is viewed through the Lugar prism, it is clear the defendants were not “exercising a
right or privilege created by the State,” nor were they acting pursuant to a “rule of
conduct” imposed by the State. The only way this fact pattern could satisfy the
9
See also, e.g., Aubrecht v. Penn. State Policy, 389 F. App’x. 189, 193 (3d Cir.
2010); Roque v. Jazz Casino Co. LLC, 388 F. App’x 402 (5th Cir. 2010);
Neighborhood Enters., Inc. v. City of St. Louis, 540 F.3d 882 (8th Cir. 2008);
Garza v. Bandy, 293 F. App’x 565, 567 (10th Cir. 2008) (describing West’s
abridged language as “the general rule”); Deangelo v. Brady, 185 F. App’x 173 (3d
Cir. 2006); Patterson v. County of Oneida, N.Y., 375 F.3d 206, 230 (2d Cir. 2004);
Renbarger v. Lockhart, 921 F.2d 1032, 1036 (10th Cir. 1990); DeYoung v. Patten,
898 F.2d 628, 631 (8th Cir. 1990).
29
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original Lugar test (which the Court never even mentioned) is that the trustees
were “persons for whom the State is responsible.” This can only mean that this
The District Court erred in failing to acknowledge, let alone apply, the
revised Lugar/West standard and relying instead on the “governmental policy” test
specific to each account, and not pursuant to a state rule of decision.” 1–ER–10.
However, once coercion exists, the private actor’s motives for acting are
immaterial. A plaintiff need not allege or prove that governmental coercion was
“the real motivating force” behind the defendant’s action. Carlin Commc’ns, Inc.
v. Mountain States Tel. & Tel. Co., 827 F.2d 1291, 1295 (9th Cir. 1987) (“[The
phone company] insists that it remains an unresolved question of fact whether the
county attorney's letter was the real motivating force behind the termination.
mere fact that [a defendant] might have been willing to act without coercion makes
no difference if the government did coerce.” Mathis v. Pacific Gas & Elec. Co.,
891 F.2d 1429, 1434 (9th Cir. 1989). See also Backpage.com, LLC v. Dart, 807
30
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F.3d 229, 233 (7th Cir. 2015) (state action exists even where threatened party
accounts (as described in the Dismissal Order) map exactly onto the categories of
with 1–ER–9 (Plaintiff Trump’s account closed; other Plaintiffs’ accounts censored
and “messages related to COVID-19 and the 2020 election results”). The District
Court doubly erred in first considering the reasons for Defendants’ censorship at
all, and then failing to acknowledge that Defendants acted precisely in line with the
government’s wishes.
has enormous economic value. The District Court failed to consider this factor,
which satisfies the first part of the Lugar test. 457 U.S. at 937.
31
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The Supreme Court has held that federal laws that, like Section 230,
immunize private conduct from liability convert such conduct into state action. In
Railway Employees’ Dept. v. Hanson, 351 U.S. 225, 232 (1956), the Court found
state action in private employers’ union shop agreements because, under a federal
statute, such agreements could not be “made illegal” by any state law. Like
Section 230, the federal law was permissive; it did not compel employers to enter
into union shop agreements; it only prohibited states from banning them. In
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), the Court found
state action in employee drug testing conducted by private employers after the
for performing such tests. The Federal Railroad Administration had promulgated
regulations addressing the problem of alcohol and drug use. The challenged
regulation did not compel the testing, but merely immunized it from private
lawsuits—just like Section 230.10 Id. at 611. The Supreme Court rejected the
argument that no state action existed because the testing was voluntary:
10
Subpart C of the regulation mandated toxicological testing following a “major
train accident.” However, Subpart C was not at issue. Petitioners’ claim pertained
to voluntary testing conducted under Subpart D of the regulations: “Petitioners
contend, however, that the Fourth Amendment is not implicated by Subpart D of
the regulations, as nothing in Subpart D compels any testing by private railroads.”
Id. at 614.
32
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conduct with state action because the regulations “removed all legal barriers” to
such testing. Id. at 615. Similarly, Section 230(c) removed all legal barriers to
Defendants’ censorship.
amendment to the California Constitution precluding the state from enacting laws
Plaintiffs, who had been denied housing on account of their race, sued the property
owners, who cited the constitutional amendment as a defense. The Supreme Court
acknowledged that the amendment on its face, and thus the state, had done nothing
private parties the right to engage in racial discrimination and thus violated the
Equal Protection Clause. Id. In just the same way, Section 230’s grant of
immunity impermissibly grants social media platforms the right to block protected
speech, free not merely from official restraint, but private lawsuits as well.
33
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2. “Rule of Conduct”
standard after West and Brentwood, Plaintiffs have met it. Deprivation of a right
originates with the state rather than with a private individual. Moose Lodge No.
107 v. Irvis, 407 U.S. 163, 172–73 (1972). Justice Frankfurter elegantly described
Terry v. Adams, 345 U.S. 461, 473 (1953) (concurrence) (emphasis added). That
“impetus” or “infusion of conduct” can take a variety of forms that fall short of an
official rule, including a threatened but not-enacted agency rule, Mathis, 891 F.2d
at 1433, or even municipal officials’ informal statements that civil rights sit-ins
would not be tolerated in their city. Lombard v. State of Louisiana, 373 U.S. 267,
270–71 (1963).
34
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3–ER–338, 342; see also 3–ER–343–54. The material that has surfaced since the
FAC was dismissed contains even more specific censorship directives from
interest—indeed they are expected to do so. And, if those who hear those views,
including social media platforms, adhere to those views, they do not thereby
become state actors. But matters are very different when government officials
deploy the powers of their office to coerce private conduct. Blum v. Yaretsky, 457
U.S. 991, 1004 (1982). The line between “government expression and
F.3d at 1125 (emphasis added). The threat need not be “explicit” or “specific.”
35
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Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009). Veiled or implicit threats
suffice, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68 (1963) (“veiled” threats);
Brodheim, 584 F.3d at 1270 (“implicit threat”), so long as the officials’ statements
Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33, 39 (2d Cir. 1983), quoted
The factual support for Plaintiffs’ claims is laid out in the 56-page FAC
factual information is appended to the Motion for Judicial Notice. This record
shows that some of the most powerful members of Congress and the Executive
Branch repeatedly threatened Defendants and other social media platforms with
seismic legal consequences, including repealing their Section 230 immunity, unless
Vice-President, and the President himself—had it well within their power to carry
36
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immunity. Michael Beckerman, the former president of the industry trade group
the Internet Association, has stated that Section 230 is “the one line of federal code
that has created more economic value in this country any other.” 2–ER–61, 68. In
2017, NERA, a leading economics consulting firm, conducted a study that placed
the value of Section 230 and the Digital Millennium Copyright Act at $40 billion
annually. 2–ER–61, 89. Freed by this immunity from any burden to engage in
responsible oversight of their content, the growth of social media platforms and
could be held liable for publishing defamatory content contained within these
11
“Today’s digital platforms provide avenues for historically unprecedented
amounts of speech, including speech by government actors. Also unprecedented,
however, is the concentrated control of so much speech in the hands of a few
private parties.” Biden v. Knight First Amendment Institute at Columbia Univ.,
141 S. Ct. 1220, 1221 (2021) (concurrence). The concentration of power in social
media companies “gives some digital platforms enormous control over speech.”
Id. at 1224.
37
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testimony before Congress, saying, “Section 230 is the Internet’s most important
law,” 2–ER–136, and that, “if we didn’t have those protections when we started
Twitter 14 years ago, we could not start.” MJN–20; see also MJN–180.
What Congress has given, Congress can take away. The consequences of
losing their Section 230 immunity would be cataclysmic for Defendants. That
these hearings was no mere inconvenience for a CEO responsible for running a
dropped 18% during the week of the October 28, 2020 hearing and remained
significantly below its October 23, 2020 level through the week of the November
openly declared that their specific aim was to pressure social media companies to
carry out censorship by threatening repeal of Section 230. While the many
statements are too long to repeat here in full, the highlights reel makes the point:
38
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Rep. Pallone: That is why you are here today … Mr. Dorsey….
The time for self-regulation is over. It is time we legislate to hold
you accountable. 2–ER–140 (emphasis added).
Vice-President Harris, and the White House. See supra at 10–12. President Biden
called for Section 230 immunity to be repealed even before he was elected. 3–ER–
Trump from the Twitter platform. 3–ER–336. The White House called on
speech, and pointed out the specific narratives to be censored: “[W]e are …
regularly making sure social media platforms are aware of the latest narratives
39
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dangerous to public health that we and many other Americans are seeing….”
Moreover, the bulk of these statements were made ex cathedra—on the floor
of Congress or from the White House. Even in the few instances where that was
conduct by state actors can give rise to state action. See, e.g., Lombard (informal
use of state power by those clothed with state authority can be state action,12 then
official action clothed in the formal trappings of a White House press briefing or
12
“Misuse of power, possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law, is action taken
‘under color of’ state law.” Classic, 313 U.S. at 326. See also Iowa-Des Moines
Nat’l Bank v. Bennett, 284 U.S. 239, 245–46 (1931) (“[A]cts done ‘by virtue of
public position under a State government . . . and . . . in the name and for the State’
. . . are not to be treated as if they were the acts of private individuals, although in
doing them the official acted contrary to an express command of the state law.”)
(Brandeis, J.).
40
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Legislators may consider and propose changes in the law; that is their job.
And they may freely discuss circumstances that call for legislative action, as well
the likely consequences of any proposed amendments. But they cross the
constitutional Rubicon when they use the power of their office to intimidate private
parties into doing their bidding. Alea iacta est. Many of the quoted statements are
with pointed reminders that Defendants’ Section 230 immunity is on the chopping
AirBnB, Facebook, Reddit, SpaceX, Uber, and Twitter. He has navigated several
companies as follows:
13
If affirmative governmental acts to advance such threats were required, which
they are not, the issuance of multiple subpoenas to Defendant Dorsey to testify
before Congress about these matters constitutes such conduct.
41
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[You have the] United States Senate basically saying: “Nice little
social network you got there. Real shame for anything to happen
to it.” So that’s pressure that’s coming from Washington. You’ve
got the coercion of private companies by these enormously powerful
people in government who are using the levers of government power
to conduct antitrust lawsuits against them, to push bills through
Congress to break them up, or otherwise harm their businesses.”
MJN–160 (emphasis added).
Section 230 provides the fulcrum for such threats—something that would
have been inconceivable with traditional news media. Can one imagine President
the Teapot Dome scandal? Such threats would have been laughed off because the
President, even with congressional authorization, could have done nothing to stop
the presses from rolling. But the Internet is different; much of what is published
there depends on Section 230 immunity. It is the thread by which hangs the Sword
of Damocles.
that public officials “deliberately set about to achieve the suppression of [speech]
deemed ‘objectionable.’” Bantam Books, 372 U.S. at 67. Courts have found
coercion, and thus state action, based on far less compelling records. In Rattner v.
Netburn, 930 F.2d 204 (2d Cir. 1991), the mayor and trustee of a New York town
wrote to a newsletter publisher asking for information about who was involved in
an anonymous article critical of local officials. The letter stated that the article
“raises significant questions and concerns about the objectivity and trust which we
42
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are looking for from our business friends,” and asked who wrote and supported the
article. On receipt of the letter, the publisher discontinued putting out the
businessman. Plaintiff sued, alleging that the municipal officials’ letter had
district court dismissed the complaint, finding that the letter was not a veiled threat
newsletter publisher. The Second Circuit reversed, saying that, viewed in the light
most favorable to the plaintiff, “a threat was perceived.” 930 F.2d at 210.
Furthermore, the lower court was not entitled to “assess credibility [of the threat]
as if there had been a trial.” Id. The officials’ letter, carrying no overt threat and
with no power to exact reprisals, was far less ominous than the barefaced threats
made by officials here. See also Backpage.com, 807 F.3d 229 (website operator
brought action alleging that county sheriff imposed prior restraint on speech by
sending letters to Visa and MasterCard requesting they stop processing payments
coercion aimed at shutting down plaintiff’s website, despite Visa’s testimony that
it had perceived no threat and that no sanctions were threatened); Okwedy, 333
F.3d 339 (president of NYC borough wrote to billboard company urging it to take
43
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be removed).
The District Court gave the back of the hand to Plaintiffs’ factual showing,
must at the dismissal stage, the District Court interpreted the facts according to its
own lights. In particular, the Court mischaracterized the import of the government
allegations as true, the Court concluded that the quoted threats in the FAC “do not
live up to [the FAC’s] billing,” thus admitting in one short phrase that Plaintiffs
had proffered a “billing” (more properly, an “allegation”) with which the Court
disagreed. Ignoring the importance of Section 230 and the stated purpose of the
congressional hearings, both of which were thoroughly elaborated in the FAC (3–
Further in this same vein, the Court said, “plaintiffs offer only ambiguous and
something unfavorable,” nor were the statements made in Congress and the White
House “general” or “ambiguous.” The threats were specific, targeted, and directly
allegations. Repealing Defendants’ Section 230 immunity would have been not
of the government officials’ threats runs directly contrary to the allegations and
facts that Plaintiffs placed before the Court. Even were there any ambiguity about
such ambiguity must be resolved in Plaintiffs’ favor. Okwedy, 333 F.3d at 344.
the trier of fact and committed reversible error. Iqbal, 556 U.S. at 662 (plaintiff
45
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only needs to allege “sufficient factual matter, accepted as true, to state a claim to
The District Court held that legislative threats to repeal Defendants’ Section
230 immunity could not, by their nature, rise to the level of coercion. Here, again,
the Court substituted its own views for the allegations made in the FAC. In
unsupported ipse dixit, the Court concluded that no coercion could exist in the
way to allege with any degree of plausibility when, if ever, the comments voiced
law might impose on social media companies like Twitter,” and “[t]he fact that
enacting a bill is rarely fast or easy further attenuates the plausibility of the
The Court also sought justification in the fact that the threats were made
14
In fact, members of Congress did introduce legislation to remove Section 230
immunity for a platform if its algorithm is used to amplify disfavored content.
MJN–37–38.
46
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opposed to threats of punitive state action.” 1–ER–15. Here again the Court
possible problems ‘for the purpose of enabling the Congress to remedy them.’”
that Defendant Dorsey and other social media CEOs found the committee hearings
nearly so benign as they sweated and stared into the cameras while a United States
have alleged that the hearings were coercive. The District Court simply refused to
Attorney General Ken Paxton in the Northern District of California, alleging that
the AG Paxton is using his authority to “intimidate, harass, and target” Twitter by
“Faced with the force of such an investigation,” Twitter’s complaint alleges, “‘a
47
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by a state Attorney General’s investigation as to curtail its own speech, one can
only imagine the shock and awe effect of having its CEO haled before Congress
The sheer number of threats coming from some of the most powerful
When the Speaker of the House, ranking members of House and Senate
Committees, and the future President and Vice-President of the United States all
plausibly be gainsaid.
Legislators either investigate, propose legislation, or enact laws. That is all they
do. Passage of legislation cannot constitute coercion because, once a law has been
passed, the government has lost all leverage and thus all power to coerce. The
businessman who refuses to pay protection money to the mob has no reason to pay
it once his restaurant has burned down. Coercion inheres in the threat, not the
completed action. The only stage of the legislative process in which coercion can
occur is precisely the stage that was alleged here—legislators brandishing their
power to repeal the vital statutory immunity they had conferred on Defendants to
48
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obtain the desired action by Defendants. To say that no coercion is possible during
this process—no matter who the players or what the forum—is to say that the
legislative branch cannot, as a matter of law, coerce. The District Court cited no
factual determinations about the coercive effect of the government actions in those
In Bantam Books, the Supreme Court held that a state commission violated
the First Amendment by sending letters to booksellers warning that the sale of
duty was to “educate the public” concerning “impure” reading material; the
officials who communicated the threats had no regulatory authority and lacked the
“power to apply formal legal sanctions.” 372 U.S. at 59, 66. Although the
booksellers were “free” to ignore them, the letters included “thinly veiled threats”
to institute criminal proceedings if the booksellers did not voluntarily comply. Id.
at 67–68. The Supreme Court found that this was coercion. Id. As the Court
49
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sensibly observed, “people do not lightly disregard public officers’ veiled threats.”
Id. at 68.
The District Court distinguished Bantam Books from the facts here because
(i) the letters were sent “on official Commission stationery,” (ii) copies of the lists
of objectionable books (not of the letters) were sent to local police departments,
and (iii) the letters were “reasonably understood to be” coercive by the booksellers.
1–ER–12. Finding a dispositive difference between the first two factors and being
qualitatively different between those two scenarios that the first can survive a Rule
12(b)(6) motion and the second cannot. The third factor on which the District
findings of fact. Id. at 63–64. How the letters there or the congressional threats
here were subjectively perceived by the recipients is a question of fact, one that
was properly decided in Bantam Books and that patently should not have been
50
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The restaurant summoned the police after the group refused to leave; they were
arrested, tried, and convicted of trespass. The Court found state action in the
restaurants’ actions solely because the Mayor and Police Chief of New Orleans had
their city. These public statements, the Court held, “must be treated exactly as if
[the City] had an ordinance prohibiting such conduct.” 373 U.S. at 273.
Lombard and this case is that, in the former, the city officials “threaten[ed] law
threats were aimed at the demonstrators, not at the restaurant owners who are in
consisted of saying publicly that sit-ins were “not in the community interest” and
“would not be permitted, whatever their purpose.” 1–ER–13. That rhetoric is mild
determination that should have been outside the scope of the motion to dismiss.
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under the state’s obscenity laws if it did not comply. The District Court made the
language in the opinion stating that the state had “exercised coercive power” over
the telephone company. 1–ER–13. But in Carlin, that finding was made on a
summary judgment motion; it thus cannot serve to distinguish Carlin from this
case. The District Court also noted that the telephone company was threatened
Mathis is the only one of these four cases decided on motion to dismiss, and
the coercive element there was weaker than here. A worker at a nuclear power
plant brought a Bivens15 suit claiming that he had been excluded from the plant
without due process for alleged drug use. This Court found the requisite state
action in the form of warnings by the Nuclear Regulatory Commission that nuclear
licensees needed to control their employees’ drug use, or the NRC would do it for
them. 891 F.2d at 1431–32. At the time, the NRC had not yet taken any formal
action—the NRC’s first policy statement on drug use was not published until a
15
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
52
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year later. Mathis alleged only that the NRC had “pressured” nuclear plant
operators. Id. at 1432. This Court held that, despite this “bare record,” “we cannot
encouragement are frivolous or wholly without substance,” and allowed his claim
to proceed. 891 F.2d at 1434. The District Court noted that, in Mathis, the
similar the cases are. There is no meaningful distinction between threats to initiate
pass legislation; both denote unleashing the power of the government if the target
doesn’t do as commanded. Again, the District Court usurped the fact-finder’s role
and decided, based on no articulated criteria, that the former was more coercive
The District Court closed its discussion of these cases with the observation
that, in each case, a “concrete and specific” threatened government action was
identified, whereas here, according to the Court, Plaintiffs have identified “only
Plaintiffs have alleged specific and targeted threats; the District Court refused to
53
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The District Court noted in one sentence that “‘compliance with generally
applicable laws’ is not sufficient to convert private conduct into state action,”
without purporting to base its decision on that principle. 1–ER–16 (citing Heineke
v. Santa Clara University, 965 F.3d 1009, 1014 (9th Cir. 2020)). Unlike in
applicable law as a basis for state action. The public officials’ challenged actions
here were directed either at President Trump individually, or else targeted a distinct
aligns exactly with Lombard and Mathis. The Supreme Court had no difficulty
finding state action in Lombard even though the governmental conduct in those
cases was directed at Black Americans as a group, not at specific individuals. And
in Mathis, the NRC’s informal “pressure” tactics were not directed at Mathis
16
See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 195–96 (1970) (Brennan, J.,
concurring) (state law leaving decision whether to serve any individual to
unfettered discretion of private restaurants imbues private decision with state
action); Robinson v. Florida, 378 U.S. 153, 156–57 (1964) (health regulation
requiring separate restroom facilities in restaurants serving Black and White
customers sufficient to create state action; regulations “embody a state policy
putting burdens upon any restaurant which serves both races”); United States v.
Ross, 32 F.3d 1411, 1413–14 (9th Cir. 1994) (airline’s search of passenger’s
luggage to conform to non-binding FAA guidelines was governmental action; FAA
(footnote continues on next page)
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The court deemed Plaintiffs’ treatment of these state action theories, which
took up nearly five out of 25 pages in their 12(b)(6) opposition brief, as “cursory”
and brushed them aside in one sentence as “minor variations on the state action
theme, [which] are unavailing for the same reasons.” 1–ER–16. To the contrary,
even if coercion were not found, Plaintiffs’ claim could have proceeded on either
of these theories.
1. Encouragement
encouragement, overt or covert, to the private party’s conduct. Blum, 457 U.S.
Defendants may have used Section 230 to block content with impunity on
their own, but Democratic officials were incensed that Defendants were not
censoring aggressively enough. So, the officials demanded that Defendants use
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their Section 230 immunity to engage in more censorship. In other words, the
government both handed Defendants the tool with which they could effectively
censor and threatened to take away the tool if Defendants did not censor. The
ultimate impact of the statute has been to “encourage and significantly involve the
It does not matter that Section 230 does not compel Defendants to take any
action. As discussed above, see 32-34, supra, the state “acts” not only when it
coerces, but also when it enables discriminatory private conduct. In Reitman, the
the legislative process encouraged private racial discrimination and thus violated
the Equal Protection Clause. 387 U.S. at 381. In the same way, Section 230’s
speech. And in Skinner the regulations immunizing employers from liability for
performing voluntary drug testing “removed all legal barriers” to such testing and
participation” in the practice. 489 U.S. at 615–16. Section 230(c) similarly is one
2. Joint Action
The joint action test asks “whether state officials and private parties have
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Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012). The test is
to accomplish a common objective. See, e.g., Adickes, 398 U.S. at 158–59 (tacit
Env. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1301 (9th Cir. 1999). Whether such
an agreement exists is “a factual issue and should be resolved by the jury, ‘so long
as there is a possibility that the jury can “infer from the circumstances” that
The record is replete with facts from which a jury could infer a common
and those who published disfavored views. Defendant Dorsey admitted that
censorship program:
publicly stated that they are “regularly in touch with social media platforms to
These allegations are enough to raise a triable issue regarding Defendants’ “willful
proceed, these facts and other similar information obtained through discovery
almost certainly would have supporting a merits decision in Plaintiffs’ favor. The
District Court’s rejection of the joint action theory without conducting even the
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grants any plaintiff who has been “aggrieved” standing to seek injunctive relief.
Fla. Stat. § 501.211(1). Florida law defines “aggrieved” to mean “angry or sad on
grounds of perceived unfair treatment,” Ahearn v. Mayo Clinic, 180 So. 3d 165,
171–72 (Fla. Dist. Ct. App. 2015), without any economic injury requirement. By
and Professions Code Section 17200 (“Section 17200”) is limited to those who
for Disability Rights v. Mervyn’s LLC, 39 Cal. 4th 223, 227 (2006). As Florida’s
policy difference establishes Florida’s materially greater interest in having its law
applied.
The District Court concluded that the Florida and California statutes are not
Cal. 4th 758 (2010). 1–ER–18–19. The Court erroneously relied on Clayworth’s
analysis of remedies rather than its holding on standing, quoting from Clayworth’s
Section III B (entitled “Remedies”), which holds that Section 17200 allows
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who “have ‘lost money or property.’” Clayworth, 49 Cal. 4th at 789. The District
choice of law inquiry. Given that Florida allows a plaintiff who would be barred
from bringing a Section 17200 claim to nonetheless sue under FDUPTA, the
was error.17
The District Court made two errors in concluding that Plaintiffs lacked
17
The District Court also suggested, without holding, that Plaintiffs have not
plausibly alleged deceptive conduct by Defendants because, under their Terms of
Service, Defendants may terminate or suspend an account “at any time for any or
no reason.” 1–ER–19. Not only is this interpretation inconsistent with
Defendants’ 140-plus page User Agreement, it effectively renders the User
Agreement meaningless. Whether under California or Florida law, a court should
give effect to every provision in a contract and avoid an interpretation that nullifies
a substantial part of the instrument. In re Crystal Prop., Ltd., 268 F.3d 743, 748
(9th Cir. 2001); City of Homestead v. Johnson, 760 So. 2d 80, 84 (Fla. Sup. Ct.
2000).
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(emphasis added). The District Court held that Plaintiffs lacked standing because
their Twitter accounts had been closed prior to July 1, 2021. 1–ER–19. The Court
misread the FAC. The accounts of several Plaintiffs, including Mr. Trump, have
forecloses standing to a user with a suspended account. The SSMCA only requires
The District Court further erred in concluding that Plaintiffs lacked standing
because the FAC alleges that Defendants’ wrongful actions toward Plaintiffs
occurred prior to the SSMCA’s effective date, July 1, 2021. 1–ER–19–20. But
Twitter has maintained the suspensions and other penalties imposed on Plaintiffs,
SSMCA grants standing to users not only when they are the subject of inconsistent
treatment, but even when another user has been injured by a platform’s
with suspended or active accounts have standing to bring an SSMCA action for the
18
Plaintiffs Trump, Barboza, Cuadros, and Latella are Florida residents. 3–ER–
329.
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369–74.
CONCLUSION
For the foregoing reasons, the judgment of the District Court should be
reversed, and the case remanded for further proceedings consistent with this
Court’s decision.
19
In a decision post-dating the District Court’s Order, the Eleventh Circuit vacated
in part and affirmed in part an injunction barring governmental enforcement of the
SSMCA. The Court vacated the injunction pertaining to the provision requiring
social media platforms to publish their censorship standards, but affirmed it as to
the consistent application provision. NetChoice, LLC v. Attorney General, Florida,
34 F.4th 1196, 1209–10 (11th Cir. 2022). These contradictory rulings were the
result of the Court’s erroneous focus on how platforms curate content. Id. at 1204–
05. By ignoring platforms’ primary function of hosting third-party content, the
Court failed to recognize that the consistent application provision is the necessary
complement to the publication requirement, and thus is little more than the
codification of the common law prohibition against unfair discrimination by
common carriers. Id. at 1220–22.
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JOHN Q. KELLY
MICHAEL J. JONES
RYAN TOUGIAS
IVEY, BARNUM & O’MARA, LLC
170 Mason Street
Greenwich, CT 06830
Telephone: (203) 661-6000
Email: [email protected]
Email: [email protected]
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CERTIFICATE OF COMPLIANCE
This brief contains 14,952 words, excluding the items exempted by Fed. R.
App. P. 32(f). The brief’s type size and typeface comply with Fed. R. App. P.
[ ] is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.
[ ] is an amicus brief and complies with the word limit of Fed. R. App. P.
29(a)(5), Cir. R. 29-2(c)(2), or Cir. R. 29-2(c)(3).
[ ] is for a death penalty case and complies with the word limit of Cir. R. 32-4.
[ ] complies with the longer length limit permitted by Cir. R. 32-2(b) because
(select only one):
[ ] it is a joint brief submitted by separately represented parties;
[ ] a party or parties are filing a single brief in response to multiple briefs; or
[ ] a party or parties are filing a single brief in response to a longer joint
brief.
[ ] complies with the length limit designated by court order dated _____________.
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[ ] I am unaware of any related cases currently pending in this court other than the
case(s) identified in the initial brief(s) filed by the other party or parties.
[X] I am aware of one or more related cases currently pending in this court. The
case number and name of each related case and its relationship to this case are:
The appeal in the Children’s Health Defense case raises some legal issues
closely related to those in the instant appeal, but the issues arise on different
factual records. Not all the legal issues raised in this appeal are closely related
to those raised in Children’s Health Defense.
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ADDENDUM
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TABLE OF CONTENTS
Page
the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
Add.1
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(a) Findings
The Congress finds the following:
(1) The rapidly developing array of Internet and other interactive computer
services available to individual Americans represent an extraordinary
advance in the availability of educational and informational resources to our
citizens.
(2) These services offer users a great degree of control over the information
that they receive, as well as the potential for even greater control in the
future as technology develops.
(3) The Internet and other interactive computer services offer a forum for a
true diversity of political discourse, unique opportunities for cultural
development, and myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished, to
the benefit of all Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety of
political, educational, cultural, and entertainment services.
(b) Policy
It is the policy of the United States—
(1) to promote the continued development of the Internet and other
interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists
for the Internet and other interactive computer services, unfettered by
Federal or State regulation;
(3) to encourage the development of technologies which maximize user
control over what information is received by individuals, families, and
schools who use the Internet and other interactive computer services;
Add.2
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Add.3
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Add.4
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(A) any claim in a civil action brought under section 1595 of title 18,
if the conduct underlying the claim constitutes a violation of section
1591 of that title;
(B) any charge in a criminal prosecution brought under State law if
the conduct underlying the charge would constitute a violation of
section 1591 of title 18; or
(C) any charge in a criminal prosecution brought under State law if
the conduct underlying the charge would constitute a violation of
section 2421A of title 18, and promotion or facilitation of prostitution
is illegal in the jurisdiction where the defendant’s promotion or
facilitation of prostitution was targeted.
(f) Definitions
As used in this section:
(1) Internet
The term “Internet” means the international computer network of both Federal
and non-Federal interoperable packet switched data networks.
(2) Interactive computer service
The term “interactive computer service” means any information service,
system, or access software provider that provides or enables computer access by
multiple users to a computer server, including specifically a service or system
that provides access to the Internet and such systems operated or services
offered by libraries or educational institutions.
(3) Information content provider
The term “information content provider” means any person or entity that is
responsible, in whole or in part, for the creation or development of information
provided through the Internet or any other interactive computer service.
(4) Access software provider
Add.5
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Add.6
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As used in this chapter, unfair competition shall mean and include any unlawful,
* * *
may be necessary to prevent the use or employment by any person of any practice
personal, which may have been acquired by means of such unfair competition.
Any person may pursue representative claims or relief on behalf of others only if
the claimant meets the standing requirements of Section 17204 and complies
with Section 382 of the Code of Civil Procedure, but these limitations do not apply
to claims brought under this chapter by the Attorney General, or any district
* * *
Add.7
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Actions for relief pursuant to this chapter shall be prosecuted exclusively in a court
population in excess of 750,000, or by a city attorney in E city and county SV, with
the consent of the district attorney, by a city prosecutor in E city having a full-time
city prosecutor in the name of the people of the State of California upon their own
association, or by E person who has suffered injury in fact and has lost money or
Add.8
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entitled, anyone aggrieved by a violation of this part may bring an action to obtain
a declaratory judgment that an act or practice violates this part and to enjoin a
person who has violated, is violating, or is otherwise likely to violate this part.
(2) In any action brought by a person who has suffered a loss as a result of
a violation of this part, such person may recover actual damages, plus attorney’s
fees and court costs as provided in s. 501.2105. However, damages, fees, or costs
are not recoverable under this section against a retailer who has, in good faith,
(3) In any action brought under this section, upon motion of the party
against whom such action is filed alleging that the action is frivolous, without legal
or factual merit, or brought for the purpose of harassment, the court may, after
hearing evidence as to the necessity therefor, require the party instituting the action
to post a bond in the amount which the court finds reasonable to indemnify the
defendant for any damages incurred, including reasonable attorney’s fees. This
subsection shall not apply to any action initiated by the enforcing authority.
Add.9
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(a) “Algorithm” means a mathematical set of rules that specifies how a group of
data behaves and that will assist in ranking search results and maintaining order or
material.
(b) “Censor” includes any action taken by a social media platform to delete,
regulate, restrict, edit, alter, inhibit the publication or republication of, suspend a
user. The term also includes actions to inhibit the ability of a user to be viewable
permanently delete or ban a user or to temporarily delete or ban a user from the
1. Publishes in excess of 100,000 words available online with at least 50,000 paid
Add.10
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2. Publishes 100 hours of audio or video available online with at least 100
3. Operates a cable channel that provides more than 40 hours of content per week
Commission.
results. The term does not include post-prioritization of content and material of a
third party, including other users, based on payments by that third party, to the
(f) “Shadow ban” means action by a social media platform, through any means,
users of the social media platform. This term includes acts of shadow banning by a
(g) “Social media platform” means any information service, system, Internet
Add.11
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each odd-numbered year to reflect any increase in the Consumer Price Index.
The term does not include any information service, system, Internet search engine,
or access software provider operated by a company that owns and operates a theme
(h) “User” means a person who resides or is domiciled in this state and who has
(2) A social media platform that fails to comply with any of the provisions of this
501.204.
Add.12
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(a) A social media platform must publish the standards, including detailed
definitions, it uses or has used for determining how to censor, deplatform, and
shadow ban.
(b) A social media platform must apply censorship, deplatforming, and shadow
(c) A social media platform must inform each user about any changes to its user
rules, terms, and agreements before implementing the changes and may not make
(d) A social media platform may not censor or shadow ban a user’s content or
1. Without notifying the user who posted or attempted to post the content or
material; or
individual platform participants who were provided or shown the user’s content or
posts.
2. Provide, upon request, a user with the number of other individual platform
Add.13
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(g) A social media platform must provide users with an annual notice on the use
of algorithms for post-prioritization and shadow banning and reoffer annually the
(h) A social media platform may not apply or use post-prioritization or shadow
banning algorithms for content and material posted by or about a user who is
106.011(3)(e), beginning on the date of qualification and ending on the date of the
certain content or material from or about a candidate for office based on payments
to the social media platform by such candidate for office or a third party is not a
violation of this paragraph. A social media platform must provide each user a
method by which the user may be identified as a qualified candidate and which
provides sufficient information to allow the social media platform to confirm the
Add.14
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(i) A social media platform must allow a user who has been deplatformed to
access or retrieve all of the user’s information, content, material, and data for at
least 60 days after the user receives the notice required under subparagraph (d)1.
(j) A social media platform may not take any action to censor, deplatform, or
violation of this paragraph. This paragraph does not apply if the content or material
(a) Be in writing.
(b) Be delivered via electronic mail or direct electronic notification to the user
(c) Include a thorough rationale explaining the reason that the social media
(d) Include a precise and thorough explanation of how the social media platform
explanation of the algorithms used, if any, to identify or flag the user’s content or
material as objectionable.
Add.15
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(4) Notwithstanding any other provisions of this section, a social media platform
defined in s. 847.001.
department may investigate the suspected violation in accordance with this part.
action under this part. For the purpose of bringing an action pursuant to this
(6) A user may only bring a private cause of action for violations of paragraph
paragraph (2)(b) or subparagraph (2)(d)1., the court may award the following
(e) If the user was deplatformed in violation of paragraph (2)(b), costs and
Add.16
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(7) For purposes of bringing an action in accordance with subsections (5) and (6),
each failure to comply with the individual provisions of subsection (2) shall be
in accordance with subsections (5) and (6), a social media platform that censors,
and not isolated activities within the state and operating, conducting, engaging in,
or carrying on a business, and doing business in this state, and is therefore subject
the department’s investigative powers include, but are not limited to, the ability to
subpoena any algorithm used by a social media platform related to any alleged
violation.
(9) This section may only be enforced to the extent not inconsistent with federal
law and 47 U.S.C. s. 230(e)(3), and notwithstanding any other provision of state
law.
confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State
Add.17
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responsibilities.
information received by the department shall remain confidential and exempt from
security.
(d) For purposes of this subsection, the term “proprietary business information”
Add.18
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3. Has not been disclosed except as required by law or a private agreement that
department; and
5. Includes:
(e) This subsection is subject to the Open Government Sunset Review Act in
accordance with s. 119.15 and shall stand repealed on October 2, 2026, unless
Add.19