Trump v. Twitter (Kozinski)

Case: 22-15961, 11/14/2022, ID: 12585950, DktEntry: 31, Page 1 of 96
Case No. 22-15961
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
DONALD J. TRUMP, the Forty-Fifth President of the United States;

LINDA CUADROS; AMERICAN CONSERVATIVE UNION; RAFAEL BARBOSA;
DOMINICK LATELLA; WAYNE ALLYN ROOT; NAOMI WOLF,
Plaintiffs-Appellants,
v.
TWITTER, INC.; JACK DORSEY,
Defendants-Appellees,
and
UNITED STATES OF AMERICA,
Intervenor-Appellee.
_______________________________________
Appeal from the United States District Court for the Northern District of California (San Francisco),
Case No. 3:21-cv-08378-JD ∙ The Honorable James Donato, District Judge
APPELLANTS DONALD J. TRUMP, AMERICAN CONSERVATIVE UNION,

RAFAEL BARBOSA, LINDA CUADROS, DOMINICK LATELLA,
AND WAYNE ALLYN ROOT’S OPENING BRIEF
JOHN P. COALE ANDREI POPOVICI

2901 Fessenden Street NW MARIE L. FIALA
Washington, D.C. 20008 LAW OFFICE OF ANDREI D. POPOVICI, P.C.
Telephone: (202) 255-2096 2121 North California Blvd., Suite 290
[email protected] Walnut Creek, CA 94596
Telephone: (650) 530-9989
ALEX KOZINSKI
[email protected]
719 Yarmouth Road, Suite 101
[email protected]
Palos Verdes Estates, CA 90274
Telephone: (310) 541-5885
[email protected]
Attorneys for Plaintiffs-Appellants,
Donald J. Trump, the Forty-fifth President of the United States;
Linda Cuadros; American Conservative Union; Rafael Barbosa;
Dominick Latella; Wayne Allyn Root
Additional Counsel Listed on Signature Page
COUNSEL PRESS ∙ (213) 680-2300 PRINTED ON RECYCLED PAPER

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
publicly held corporation owns 10% or more of its stock.
Date: November 14, 2022
Law Office of Andrei D. Popovici, P.C.
s/ Marie L. Fiala
Marie L. Fiala
Attorneys for Appellants

Donald J. Trump, American Conservative
Union, Rafael Barbosa, Linda Cuadros,
Dominick Latella, and Wayne Allyn Root
i
TABLE OF CONTENTS
Page
DISCLOSURE STATEMENT .................................................................................. i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES .....................................................................................v
INTRODUCTION .....................................................................................................1
JURISDICTIONAL STATEMENT ..........................................................................5
STATUTORY AUTHORITIES ................................................................................5
ISSUE(S) PRESENTED ............................................................................................5
STATEMENT OF THE CASE ..................................................................................5
I. Threats and Inducements by Congressional Democrats .......................6
II. Executive Branch Actions to Censor Speech ........................................9
III. Concerted Action by Defendants and Government Actors .................13
IV. Procedural Background .......................................................................17
SUMMARY OF ARGUMENT ...............................................................................18
ARGUMENT ...........................................................................................................20
I. The District Court Erroneously Concluded That Plaintiffs Had Not
Plausibly Alleged Facts Giving Rise to State Action .........................20
A. Legal Standards .........................................................................20
1. Standards Governing a Rule 12(b)(6) Motion ................20
2. Standards Governing a State Action Determination ......21
B. The District Court Failed to Apply the Correct Legal Test
for Pleading State Action ..........................................................23
ii
1. The District Court Erred by Failing to Assess Plaintiffs’

Showing Under Brentwood ............................................24
2. The District Court Also Failed to Apply Lugar

Correctly .........................................................................27
3. The District Court Erroneously Held That Defendants

Must Have Been Motivated by Governmental
Coercion ..........................................................................30
C. In Any Event, Plaintiffs Have Met the Lugar Test,

However Construed...................................................................31
1. Exercise of a Right or Privilege......................................31
2. Rule of Conduct ..............................................................34
D. The District Court Erroneously Concluded That the

Extensive Record of Government Threats Did Not Amount
to Coercion. ...............................................................................35
1. Plaintiffs Have Pleaded Ample Facts Showing

Coercion ..........................................................................35
2. The District Court Erred in Holding That This

Extensive Record Did Not Meet the Threshold for
Pleading Coercion...........................................................44
(a) The District Court Failed to Properly Credit

Plaintiffs’ Allegations. ....................................................44
(b) The District Court Concluded, Erroneously, That

Legislative Threats to Repeal Section 230 Could Not
Constitute Coercion ........................................................46
3. The District Court Wrongly Concluded That the

Plaintiffs’ Allegations Were Insufficient Compared
to the Facts of Bantam Books, Lombard, Carlin,
and Mathis ......................................................................49
4. Plaintiffs Do Not Rely on Compliance with Generally

Applicable Laws .............................................................54
iii
E. Plaintiffs Also Adequately Alleged State Action by

Encouragement and Joint Action ..............................................55
1. Encouragement ...............................................................55
2. Joint Action .....................................................................56
II. The District Court Erred in Applying California Law. .......................59
III. Plaintiffs Have Standing Under the SSMCA ......................................60
CONCLUSION ........................................................................................................62
CERTIFICATE OF COMPLIANCE .......................................................................64
STATEMENT OF RELATED CASES ...................................................................65
ADDENDUM
iv
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
v
Carlin Commc’ns, Inc. v. Mountain States Tel. & Tel. Co.,

827 F.2d 1291 (9th Cir. 1987) ...........................................................30, 49, 52
City of Homestead v. Johnson,
760 So. 2d 80 (Fla. Sup. Ct. 2000) ................................................................ 60
Clayworth v. Pfizer, Inc.,
49 Cal. 4th 758 (2010) .............................................................................59, 60
Cont’l Ore Co. v. Union Carbide & Carbon Corp.,
370 U.S. 690 (1962)....................................................................................... 20
Deangelo v. Brady,
185 F. App’x 173 (3d Cir. 2006) ................................................................... 29
DeYoung v. Patten,
898 F.2d 628 (8th Cir. 1990) ......................................................................... 29
Florer v. Congregation Pidyon Shevuyim,
603 F.3d 1118 (9th Cir. 2010) ....................................................................... 29
Garnier v. O’Connor-Ratcliff,
41 F.4th 1158 (9th Cir. 2022) ........................................................................ 29
Garza v. Bandy,
293 F. App’x 565 (10th Cir. 2008) ................................................................ 29
Hammerhead Enters., Inc. v. Brezenoff,
707 F.2d 33 (2d Cir. 1983) ............................................................................ 36
Heineke v. Santa Clara University,
965 F.3d 1009 (9th Cir. 2020) ....................................................................... 54
In re Alphabet Securities Litig.,
1 F.4th 687 (9th Cir. 2021) ......................................................................20, 21
In re Century Aluminum Co. Sec. Litig.,
729 F.3d 1104 (9th Cir. 2013) ....................................................................... 21
In re Crystal Prop., Ltd.,
268 F.3d 743 (9th Cir. 2001) ......................................................................... 60
Iowa-Des Moines Nat’l Bank v. Bennett,
284 U.S. 239 (1931)....................................................................................... 40
Keates v. Koile,
883 F.3d 1228 (9th Cir. 2018) ....................................................................... 20
Kirtley v. Rainey,
326 F.3d 1088 (9th Cir. 2003) ....................................................................... 27
vi
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
vii
Rawson v. Recovery Innovations, Inc.,

975 F.3d 742 (9th Cir. 2020) ...................................................................22, 26
Reitman v. Mulkey,
387 U.S. 369 (1967).................................................................................33, 56
Renbarger v. Lockhart,
921 F.2d 1032 (10th Cir. 1990) ..................................................................... 29
Robinson v. Florida,
378 U.S. 153 (1964)....................................................................................... 54
Roque v. Jazz Casino Co. LLC,
388 F. App’x 402 (5th Cir. 2010) .................................................................. 29
Skinner v. Railway Labor Executives’ Ass’n,
489 U.S. 602 (1989)...........................................................................32, 33, 56
Sutton v. Providence St. Joseph Medical Center,
192 F.3d 826 (9th Cir. 1999) .......................................................23, 24, 26, 58
Terry v. Adams,
345 U.S. 461 (1953)....................................................................................... 34
Tsao v. Desert Palace, Inc.,
698 F.3d 1128 (9th Cir. 2012) ....................................................................... 57
United States v. Davis,
482 F.2d 893, 904 (9th Cir. 1973) ................................................................. 55
United States v. Ross,
32 F.3d 1411 (9th Cir. 1994) ......................................................................... 54
Villegas v. Gilroy Garlic Festival Ass’n,
541 F.3d 950 (9th Cir. 2008) ......................................................................... 26
West v. Atkins,
487 U.S. 42 (1988).............................................................................28, 30, 34
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
viii
42 U.S.C. § 1983 ...................................................................................................... 24

47 U.S.C. § 230 .................................................................................................passim
Cal. Bus. and Prof. Code § 17200......................................................................59, 60
Fla. Stat. § 501.201 .................................................................................................... 5
Fla. Stat. § 501.211 .................................................................................................. 59
Fla. Stat. § 501.2041 ......................................................................................5, 60, 61
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
ix
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
with by threatening, demanding, and colluding with social media platforms to
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
a laptop full of incriminating evidence at a repair shop in Delaware. Galileo spent
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
his remaining days under house arrest for spreading heretical ideas, and thousands
of dissidents today are arrested or killed by despotic governments eager to suppress
ideas they disapprove of. But this is not the American way. We believe the path to
truth is forged by exposing all ideas to opposition, debate, and discussion.
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.
E=mc2 revolutionized physics, not because it got thousands of likes on Facebook,
but because it survived withering criticism by proclaimed experts.2
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,
they are the subjects of bullying, threats, and thinly-veiled invitations to
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
“collaborate” by government actors who wield immense power to harm them if
they don’t toe the line.
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
on an immensely generous grant of legal protection: Section 230(c) of the
Communications Decency Act, 47 U.S.C. § 230(c) (“Section 230”). Congress
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
transmitting, receiving, or debating them.
This is not an arcane First Amendment issue; our democracy itself is at
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
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
suppression of ideas is unhealthy for a democracy and leads millions of Americans
to profoundly mistrust public institutions. And this mistrust is exacerbated by
recent efforts to establish a Ministry of Truth and control public discourse on social
media by battalions of government officials.
The Supreme Court has long been aware that government officials can use
their authority to encourage, cajole, co-opt, and intimidate private parties to do
their dirty work for them. In a line of cases dating back almost a century, the Court
has held that encouragement, collaboration, or coercion by government or its
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
alleged. The District Court’s contrary holding must be reversed.
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.”
4
JURISDICTIONAL STATEMENT
Subject matter jurisdiction lies pursuant to 28 U.S.C. §§ 1331, 1332(d),
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
Appeal. 3–ER–325–27. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
STATUTORY AUTHORITIES
Relevant legal authorities appear in the separately filed Addendum.
ISSUE(S) PRESENTED
Issues presented for review are: (1) whether Plaintiffs adequately alleged
state action by means of governmental compulsion of, encouragement of, and/or
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
Stop Social Media Censorship Act (“SSMCA”), Fla. Stat. § 501.2041.
STATEMENT OF THE CASE
The District Court record documents a litany of events where members of
Congress and the Executive Branch coerced Defendants to censor certain
categories speech on pain of catastrophic legal consequences. 3–ER–335–39. The
speech to be censored included content tweeted by President Trump and others

5
questioning the integrity of the 2020 presidential election or communicating
information about COVID-19 that departed from Democrats’ preferred narratives,
such as stating that the virus leaked from a Chinese laboratory or questioning the
efficacy and safety of COVID-19 vaccines (collectively, “disfavored content”).
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
they create a plausible inference of coercion, encouragement, and/or joint action.
I. Threats and Inducements by Congressional Democrats
Powerful Democratic legislators threatened to use their official authority to
impose Draconian legal consequences against Defendants and other social media
companies if they did not censor disfavored speakers and speech. 3–ER–335–37.
Democratic officials overtly threatened sanctions for Defendants’ non-compliance,
including repealing Defendants’ Section 230 immunity:
• 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.
• Senator Kamala Harris (D–CA), Sept. 30, 2019: “Look, let’s be

honest, Donald Trump’s Twitter account should be suspended.” 3–
ER–336.
6
• Senator Kamala Harris (D–CA), Oct. 2, 2019: “Hey @jack

[Defendant Dorsey]. Time to do something about this,” providing
picture of a tweet from President Trump. 3–ER–336; MJN–148.
• Rep. Cedric Richmond (D–LA) and Rep. Jerrold Nadler (D–

NY), April 2019: Warned social media platforms that they had
“better” restrict what they saw as harmful content, or else face
regulation. Rep. Richmond: “We’re going to make it swift, we’re
going to make it strong, and we’re going to hold them very
accountable.” Rep. Nadler: “Let’s see what happens by just
pressuring them.” MJN–175–76.
Democratic legislators convened formal hearings to which they summoned
Defendant Dorsey and other social media CEOs.4 3–ER–337. The coercive,
viewpoint discriminatory statements by legislators at these official proceedings
should shock the conscience of any American:
• Sen. Mark Warner (D–VA): “[T]he President himself …

continue[s] to exploit social media platforms to sow disinformation,
engage in targeted harassment, and suppress voter participation. We
can and should have a conversation about Section 230….” 3–ER–
336, 338; MJN–13 (emphasis added).
• Sen. Richard Blumenthal (D–CT): “Daily, the president shocks

our conscience and shakes the very foundations of our democracy
using a powerful megaphone, social media. The President has used
this microphone to spread vicious falsehoods and an apparent attempt
to overturn the will of voters…. Now, Mr. Zuckerberg and Mr.
Dorsey, you have built terrifying tools of persuasion and
manipulation … I have urged, in fact, a breakup of tech giants
because they’ve misused their bigness and power.… And indeed
Section 230 reform, meaningful reform, including even possible
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.
7
repeal in large part…. Change is going to come, no question.

Change is on the way and I intend to bring aggressive and
targeted reform to Section 230.” 3–ER–336–38; MJN–16–18
(emphasis added).
• 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).
• Rep. Mike Doyle (D–PA): “Your companies need to be held

accountable…. Ours is the committee of jurisdiction, and we will
legislate to stop this.” 2–ER–144; 3–ER–338 (emphasis added).
• Rep. Janice Schakowsky (D–IL): “What our witnesses need to

take away from this hearing is that self-regulation has come to the end
of its road, and that this democratically elected body is prepared to
move forward with legislation and regulation. Misinformation
regarding the election dropped by 73% across social media
platforms after Twitter permanently suspended Trump…. The
question is, what took so long?” 2–ER–146–47; 3–ER–338
(emphasis added).
• Democratic Committee Chairs: “This hearing will continue the

Committee’s work of holding online platforms accountable for the
growing rise of misinformation and disinformation…. Industry self-
regulation has failed. We must begin the work of changing
incentives driving social media companies to allow and even
promote misinformation and disinformation.” 3–ER–337–38;
MJN–40 (emphasis added).
• Rep. G.K. Butterfield (D–NC): “Congress will have to compel

you, compel you perhaps with penalties, to make meaningful
8
changes.” 3–ER–338; MJN–26 (addressing hiring practices;

emphasis added).
• Rep. Doris Matsui (D–CA): “[T]he companies before us today

[including Twitter] aren’t doing enough … I think Congress must
revisit Section 230.” 3–ER–338; MJN–27 (emphasis added).
• Rep. Darren Soto (D–FL): “[P]ursuant to 230, you all [YouTube,

Twitter, and Facebook] can’t be sued. You have immunity. But it
ain’t 1996 anymore, is it? Meanwhile, lies are spreading like wildfire
through platforms.… And the reason is your algorithms…. What
specific changes to Section 230 do you support to ensure more
accountability?” 3–ER–338; MJN–29–30 (emphasis added).
• Rep. Blunt Rochester (D–DE): “And while we are considering

Section 230, what is clear from this hearing is that we should all be
concerned by all of your abilities to adequately—and just as
importantly, rapidly—moderate content.” 3–ER–338; MJN–31
(emphasis added).
These threats were effective because they targeted the chink in social media
firms’ legal armor. 3–ER–335, 338-41, 362. According to an official
congressional source, “[t]hese platforms [Twitter, YouTube, and Facebook] often
ramp up their efforts against [disfavored] content in response to social and
political pressure.” 2–ER–117–18, 150 (emphasis added).
II. Executive Branch Actions to Censor Speech
Then-candidate and now-President Biden has led this charge on behalf of
the Executive Branch, clearly linking adverse government action to calls for more
aggressive censorship of disfavored speech by social media companies. On
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
should be revoked, immediately should be revoked, number one. For Zuckerberg
and other platforms.” He further said: “It should be revoked because it is not
merely an Internet company. It is propagating falsehoods they know to be
false….” 3–ER–336; MJN–151. Then-Senator Kamala Harris made similar
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
hold you accountable….” 3–ER–335; MJN–168.
On July 20, 2021, White House Communications Director Bedingfield
announced that President Biden was considering repealing Section 230’s liability
protections if social media companies did not increase censorship of disfavored
viewpoints:
“The White House is assessing whether social media platforms are

legally liable for misinformation spread on their platforms…. The
White House is examining how misinformation fits into the liability
protections granted by Section 230….
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
aggressively about this. He understands that this is an important piece of the
ecosystem.” Id.
10
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
categories of disfavored speech. On May 5, 2021, White House Press Secretary
Psaki gave a press conference at which she linked the threat of antitrust
enforcement to the demand for more aggressive censorship by social media
platforms, saying that President Biden “supports … a robust antitrust program,”
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.”
MJN–43. On July 15, 2021, Surgeon General Murthy released an advisory
regarding “health misinformation.” He called on social media companies to
“[r]edesign recommendation algorithms to avoid amplifying misinformation,”
to “build in ‘frictions’—such as suggestions and warnings—to reduce the sharing
of misinformation,” and to “make it easier for users to report misinformation.”
It further called on social media platforms to “[p]rioritize early detection of
misinformation ‘super-spreaders’ and repeat offenders. Impose clear
consequences for accounts that repeatedly violate platform policies.” MJN–62
(emphasis added). In a July 15, 2021 press briefing, the Surgeon General
explicitly said that the CDC wanted social media companies to “take action
against” those it considers to be spreading misinformation:
11
Modern technology companies have enabled misinformation to

poison our information environment with little accountability to
their users…. We’re asking them to monitor misinformation more
closely. We’re asking them to consistently take action against
misinformation super-spreaders on their platforms…. [T]hey have to
do more to reduce the misinformation that’s out there so that the true
voices of experts can shine through.
3–ER–348–49; MJN–46–47, 50 (emphasis added).
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
typically happen through members of our senior staff….” 3–ER–346–48. She
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
also demanded that social-media companies “create robust enforcement strategies,”
“tak[e] faster action against harmful posts,” and “promot[e] quality information
algorithms,” which is a euphemism for algorithms that suppress disfavored
messages. 3–ER–349–52.
12
III. Concerted Action by Defendants and Government Actors
Defendants have acted in concert with their government overseers to censor
speech that does not comply with Democratic officials’ preferences. Defendant
Dorsey admitted at congressional hearings that Defendants “partnered” with the
federal government to “share information” and “gather input” to “inform
[Twitter’s] policy and enforcement decisions,” and would continue working with
Congress to identify “additional steps [Twitter] can take” to address disfavored
information. 2–ER–122, 125–26, 130. The following exchange took place during
his appearance at the October 28, 2020 hearing:
Sen. Tammy Duckworth (D–IL): “So in closing, I would like each

witness to provide a personal commitment that your respective
companies will proactively counter domestic disinformation that
spreads the dangerous lies, such as masks don’t work…. Do I
have that commitment from each of you gentlemen?”
Defendant Dorsey: “We make that commitment.”
MJN–10–11 (emphases added); see also MJN–6–7. Similar exchanges occurred at
the Nov. 17, 2020 hearing:
Sen. Blumenthal: “[W]ill you commit to the same kind of robust

content modification playbook in this coming election, including
fact-checking, labeling, reducing the spread of misinformation, and
other steps, even for politicians in the runoff elections ahead?”
Defendant Dorsey: “Yes, we do.”
Sen. Corey Booker (D–NJ): “[S]pecifically the two gentlemen here,

their platforms, Twitter and Facebook…. I’d like to ask specifically,
have you taken any steps to modify your platforms’ algorithms to
ensure that blatantly false election disinformation posted by
13
election officials and specifically the most powerful person in the

United States, Donald Trump, isn’t amplified? … Mr. Dorsey …
[d]o you have specific measures that you’re taking to prevent your
algorithms from boosting false content?”
Defendant Dorsey: “Yes, so many of the labels did change how

the algorithms amplify content.”
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?”
Defendant Dorsey: “Yes. We remove everything against our

policy.”
MJN–23 (emphases added).
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
dismissed is beyond what Plaintiffs could ever have imagined.
Documents obtained in discovery by the Missouri and Louisiana Attorneys
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.
14
Federal officials are deeply embedded in a joint enterprise with social media
companies, including Defendants, to procure censorship of speech. Administration
officials meet regularly with senior executives at Twitter and other platforms to
discuss “what the White House expects from us on misinformation.” MJN–80–83,
129–34, 136–142. Officials coordinate censorship efforts with social media
companies to “drive behavior” by holding weekly “Be On The Lookout” meetings
to flag disfavored content, sending lists of disfavored posts to be censored,
consulting with the social media platforms about censoring specific speech, and
exchanging detailed reports with social media companies about so-called
“misinformation.” MJN–84–88, 91, 94–127. “I’m looking forward to setting up
regular chats,” says one such message from Twitter to the CDC. “[M]y team has
asked for examples of problematic content so we can examine trends. All
examples of misinformation are helpful, but in particular, if you have any
examples of fraud … that would be very helpful.” MJN–80 (emphasis added).
“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
of our Rules.” MJN–80. In an email titled “Twitter VaccineMisinfo Briefing,”
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
changes, what interventions are currently being implemented in addition to
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
flagging misinformation—a “Partner Support Portal”—which allows federal
officials to submit expedited requests to censor content. MJN–92–93.
And there is more. Documents provided by a whistleblower to members of
Congress reveal that the Department of Homeland Security has been designated as
the central clearinghouse for the Administration’s responses to whatever it happens
to decide is “disinformation.” MJN–70–74. The documents describe a meeting
between the Undersecretary of Homeland Security and Twitter executives to
“operationalize” DHS’s relationship with Twitter to implement the
Administration’s goals. MJN–72. “By sharing information,” the DHS documents
state, the agency “can empower [Twitter and other social media] partners to …
enable[] them to remove content at their discretion.” MJN–72. Senators Grassley
and Hawley have asserted that these documents indicate that DHS is “seeking an
active role in coordinating … censorship … by enlisting the help of social media
companies…,” and have demanded further information from DHS Secretary
Mayorkas. MJN–73.
And yet more. As has also recently become public, shortly before the 2020
election Facebook—acting at the behest of the FBI—suppressed an explosive New
16
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
now-President Biden, thus interfering with the election. MJN–64–68. As noted
above, this government-coerced censorship may well have changed the election
results. MJN–164–166.
IV. Procedural Background
Plaintiffs initiated this case in the Southern District of Florida on July 7,
2021 on behalf of a putative class and filed their First Amended Complaint
(“FAC”) on July 27, 2021. 3–ER–325–81; 3–ER–397. Plaintiff Trump filed a
motion for preliminary injunction on October 1, 2021. 3–ER–400–01. The case
was transferred to the Court below on October 26, 2021 and assigned to The Hon.
James Donato. 3–ER–404–05.
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
dismissing the FAC in its entirety. 1–ER–4–20. Judgment in Defendants’ favor
was entered on June 7, 2022. 1–ER–2.
17
SUMMARY OF ARGUMENT
As a direct result of these governmental pressures and solicitations,
Defendants censored then-President Trump’s Twitter account multiple times
before and after the 2020 election and permanently suspended it on January 7,
2021.5 3–ER–353–55. Defendants also censored speech by the other named
Plaintiffs expressing views contrary to the government’s preferred positions.
Defendants’ overtly partisan censorship resulted in the prior restraint of millions of
Americans’ freedom to participate in public discourse, contrary to First
Amendment principles deeply rooted in American history and law. 3–ER–319–21.
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
pummeled by Democratic legislators into agreeing to join Democrats’ “censorship
enterprise.” Senior members of the Executive Branch, from President Biden on
down, announced criteria for what they viewed as “disinformation” and enlisted—
by means of thinly veiled threats and inducements—Defendants’ and other social
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
surfaced since the case was dismissed reveals the most serious, coordinated, and
large-scale violation of First Amendment Free Speech rights by the federal
government in our nation’s history.
Plaintiffs have alleged in detail that the federal government’s entanglement
with Defendants’ “content moderation” program (a euphemism worthy of Orwell)
is state action, subjecting Defendants’ censorship to First Amendment constraints.
State action exists by virtue of (1) government coercion, including directing
Defendants and other social media platforms to target users posting disfavored
content; (2) substantial encouragement of Defendants’ censorship by official
exhortations coupled with threatened withdrawal of Section 230 immunity; and
(3) joint action between Defendants and the government to suppress disfavored
speech. Plaintiffs also alleged that Defendants’ censorship violates provisions
of FDUPTA and the SSMCA.
Had Plaintiffs’ case been allowed to proceed to discovery, additional
damning evidence similar to the recent revelations summarized above doubtless
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
19
disregarding the standards governing Fed. R. Civ. Proc. 12(b)(6) dismissals;
misapplying or failing to consider the precedents applicable to Plaintiffs’ First
Amendment and state law claims; failing to credit Plaintiffs’ allegations or flatly
misreading the FAC; and making factual determinations contradicting Plaintiffs’
showing. Each of these is a sufficient ground for reversal.
ARGUMENT
I. The District Court Erroneously Concluded That Plaintiffs Had Not

Plausibly Alleged Facts Giving Rise to State Action.
A. Legal Standards
1. Standards Governing a Rule 12(b)(6) Motion
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,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
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
proof without tightly compartmentalizing the various factual components….”
Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699 (1962)
(emphasis added). A claim may not be dismissed if a plaintiff’s allegations,
20
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).
2. Standards Governing a State Action Determination
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
encouragement, either over or covert,’ or (3) when a private actor operates as a
‘willful participant in joint activity’” with the government. Brentwood Acad. v.
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
recognition of state responsibility under the Equal Protection Clause is an
‘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
nonobvious involvement of the State in private conduct be attributed its true
significance.” Burton, 365 U.S. at 722.
Where seemingly threatening governmental statements are ambiguous, a
court is required on a Rule 12(b)(6) motion to draw a reasonable inference of
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
governmental statements as “exceeding mere criticism” and conveying a threat to
22
impose “government power” or “adverse regulatory actions.” American Family
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
behaving as a state actor pursuant to a ‘governmental policy’ when it closed
their accounts?” 1–ER–7–8 (citing Sutton) (emphasis added); see also 1–ER–8
(District Court rejected multiple specific threats by government officials as source
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).
However, as we explain below, the Supreme Court in Brentwood announced
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
23
Supreme Court in Brentwood or under the modified Lugar rule (assuming it is still
good law).
1. The District Court Erred by Failing to Assess Plaintiffs’

Showing Under Brentwood.
In Sutton, this Court discussed the test for determining whether a defendant
is subject to suit under 42 U.S.C. § 1983—to wit, whether a defendant is acting
“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
be a [governmental] actor.” Id. (citation omitted; brackets in original). Sutton
based the “governmental policy” requirement on Lugar but failed to quote Lugar
correctly, substituting the “policy” language for Lugar’s considerably broader
“rule of conduct” articulation. See Lugar, 457 U.S. at 937 (deprivation “must be
caused by … a rule of conduct imposed by the [government]”).
Nearly twenty years after Lugar and two years after Sutton, the Supreme
Court announced a new multi-factor analysis for determining whether a private
party can be found to be a state actor:
[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
“significant encouragement, either overt or covert,” or [3] when a

private actor operates as a “willful participant in joint activity
with the State or its agents.”
Brentwood, 531 U.S. at 295–96 (citations omitted; bracketed material added)
(emphasis added). Brentwood made no mention of Lugar’s “rule of conduct”
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
was a state actor:
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.’”
25
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
to establish state action:
Previously, we expressed uncertainty as to whether satisfaction of

a single test could be sufficient to establish that a private entity was
a State actor. However, in Brentwood, the Court determined that the
nominally private entity whose conduct was challenged was a State
actor solely on the basis that the entity was entwined with the
State. The Court held that satisfaction of this single test was
sufficient, so long as no countervailing factor existed. See
Brentwood, 531 U.S. at 304 (“When … the relevant facts show
pervasive entwinement …, the implication of state action is not
affected by pointing out that the facts might not loom large under
a different test.”).
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
coercion, or governmental nexus tests; no mention of Lugar’s “rule of conduct”
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
of state law; Lugar not even cited).
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
considering whether Plaintiffs have alleged state action under Brentwood.
2. The District Court Also Failed to Apply Lugar Correctly.
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
Court’s subsequent narrowed application of Lugar.
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
exercise of some right or privilege created by the State or by a rule of conduct
imposed by the state or by a person for whom the State is responsible.” 457 U.S.
27
at 937. The Supreme Court since has abridged this part of the Lugar test, as
follows:
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 responsible,” and “the party charged
with the deprivation must be a person who may fairly be said to be a
state actor.”
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
the deprivation is caused either by “the exercise of some right or privilege” or by
“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
circumstances, a “person for whom the State is responsible.”8 Numerous post-
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
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
responsible….”) (emphasis added).9
This reading of Lugar finds indirect but strong support in this Court’s recent
opinion in Garnier v. O’Connor-Ratcliff, 41 F.4th 1158 (9th Cir. 2022). Two
members of a school board of trustees blocked plaintiffs’ access to the trustees’
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
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
clause is an independent predicate for state action.
The District Court erred in failing to acknowledge, let alone apply, the
revised Lugar/West standard and relying instead on the “governmental policy” test
as a basis for dismissing Plaintiffs’ First Amendment claim.
3. The District Court Erroneously Held That Defendants Must

Have Been Motivated by Governmental Coercion.
The District Court further erroneously concluded that Plaintiffs’ claim
failed because Defendants censored Plaintiffs’ accounts “in response to factors
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.
Even if unresolved, this factual question is immaterial.”) (emphasis added). “The
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
F.3d 229, 233 (7th Cir. 2015) (state action exists even where threatened party
denies it perceived or was moved by government threat).
In addition, the reasons given for Defendants’ censorship of Plaintiffs’
accounts (as described in the Dismissal Order) map exactly onto the categories of
disfavored speech specified in the FAC: tweets by President Trump or by others
questioning the integrity of the 2020 presidential election or disseminating what
the government deemed COVID-19 “disinformation.” Compare 3–ER–338, 340
with 1–ER–9 (Plaintiff Trump’s account closed; other Plaintiffs’ accounts censored
due to “posts about vaccines,” “vaccine misinformation,” “retweeting President
Trump,” “positive messages about Republican candidates and President Trump,”
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.
C. In Any Event, Plaintiffs Have Met the Lugar Test, However

Construed.
1. “Exercise of a Right or Privilege”
By conferring Section 230 immunity on Defendants, the state has granted
them a “right or privilege”—the right to censor protected speech risk-free, which
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
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
federal government enacted regulations immunizing the employers from liability
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
We are unwilling to conclude … that breath and urine tests required

by private railroads in reliance on Subpart D will not implicate the
Fourth Amendment…. The fact that the Government has not
compelled a private party to perform a search does not, by itself,
establish that the search is a private one.
Id. at 614–15 (emphasis added). The regulation infused private employer’s
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.
In Reitman v. Mulkey, 387 U.S. 369 (1967), California voters passed an
amendment to the California Constitution precluding the state from enacting laws
forbidding racial discrimination in private housing. The amendment left private
actors free to discriminate without fear of legal consequences. Id. at 381.
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
to encourage the discrimination. But, by making private discriminatory practices
immune from the legislative process, the amendment impermissibly granted
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
2. “Rule of Conduct”
Even were we to assume that Lugar’s “rule of conduct” remains a relevant
standard after West and Brentwood, Plaintiffs have met it. Deprivation of a right
pursuant to a governmental “rule of conduct” does not require that Defendants’
actions have been mandated by a law or governmental regulation. Rather, the
threshold requirement is that the “impetus for the forbidden discrimination”
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
the modest degree of state involvement required:
This phrase [state action] gives rise to a false direction in that it

implies some impressive machinery or deliberative conduct normally
associated with what orators call a sovereign state. The vital
requirement is State responsibility—that somewhere, somehow, to
some extent, there be an infusion of conduct by officials,
panoplied with State power, into any scheme [to deny protected
rights].
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
Plaintiffs have alleged such a “rule of conduct” imposed by government
officials. Leading Democratic members of Congress and the Biden administration
specifically pressured Defendants to censor speech by President Trump,
questioning the integrity of the 2020 presidential election, and communicating
information about COVID-19 that departed from Democrats’ preferred narratives.
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
government agencies to Defendants. See 14–16, supra.
D. The District Court Erroneously Concluded That the Extensive

Record of Government Threats Did Not Amount to Coercion.
1. Plaintiffs Have Pleaded Ample Facts Showing Coercion.
Government officials are free to express their views as to matters of public
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
intimidation—the first permitted by the First Amendment, the latter forbidden by
it,” Backpage.com, 807 F.3d at 230—is crossed when there is an “actual or
threatened imposition of government power or sanction.” American Family, 277
F.3d at 1125 (emphasis added). The threat need not be “explicit” or “specific.”
35
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
“can reasonably be interpreted as intimating that some form of … adverse
regulatory action will follow failure to accede to the officials’ request.”
Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33, 39 (2d Cir. 1983), quoted
approvingly in American Family, 277 F.3d at 1125.
The factual support for Plaintiffs’ claims is laid out in the 56-page FAC
augmented by some 30 pages of judicially noticeable materials admitted in
connection with Plaintiffs’ opposition to the motion to dismiss. Further relevant
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
Defendants cooperated in censoring disfavored content. This was no mere puffery;
these officials—members of powerful committees, the Speaker of the House, the
Vice-President, and the President himself—had it well within their power to carry
out their threats.
The coercive effects of the government officials’ statements on Defendants
must be assessed in the context of Defendants’ enormously valuable Section 230
36
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
their role in contemporary American society has been explosive.11
Twitter’s more than $44 billion dollars in market value is directly
attributable to this immunity. 2–ER–61, 157; MJN–185-90. Twitter hosts an
immense volume of third-party content; it would be faced with economic ruin if it
could be held liable for publishing defamatory content contained within these
tweets. The risk is sufficiently material to disclose in Twitter’s SEC filings:
[T]here are various Executive and Congressional efforts to restrict the

scope of the protections from legal liability for content moderation
decisions and third-party content … under Section 230 … and our
current protections from liability for content moderation decisions and
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
third-party content posted on our platform in the United States could

decrease or change, potentially resulting in increased liability … and
higher litigation costs.” 3–ER–199, 201.
Defendant Dorsey admitted the critical importance of Section 230 in sworn
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
immunity was squarely in congressional Democrats’ sights when they issued
subpoenas and compelled Defendant Dorsey to appear and testify. Attendance at
these hearings was no mere inconvenience for a CEO responsible for running a
publicly traded multi-billion-dollar company. Indeed, Twitter’s stock price
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
17, 2020 hearing. MJN–178.
Members of the congressional committees that convened these hearings
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
Rep. Butterfield: “Congress will have to compel you, compel you

perhaps with penalties, to make meaningful changes.” MJN–26
(emphasis added).
Senator Blumenthal: “Daily, the president shocks our conscience and

shakes the very foundations of our democracy using a powerful
megaphone, social media…. Mr. Dorsey … I have urged … Section
230 reform, meaningful reform, including even possible repeal in
large part….” MJN–16–17 (emphasis added).
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).
Rep. Doyle: Your companies need to be held accountable … Ours is

the committee of jurisdiction, and we will legislate to stop this. 2-
ER–144.
Rep. Matsui: “[T]he companies before us today [including Twitter]

aren’t doing enough … I think Congress must revisit Section 230.”
As noted above, a similar barrage of threats emanated from President Biden,
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–
336. Then-Senator Harris called specifically for Defendants to ban President
Trump from the Twitter platform. 3–ER–336. The White House called on
Defendants to create a “robust enforcement strategy” to ban disfavored views,
exhorted social media companies to “ensure uniformity” in banning disfavored
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
dangerous to public health that we and many other Americans are seeing….”
3–ER–346–51. The Surgeon General unabashedly touted the government’s anti-
free speech position: “We’re asking [social media companies] to monitor
misinformation more closely. We’re asking them to consistently take action
against misinformation … on their platforms.” 3–ER–348–49.
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
not the case—e.g., the tweets by then-Senator Kamala Harris, 3–ER–336—what
Plaintiffs have alleged is enough to constitute coercion. Informal or even illegal
conduct by state actors can give rise to state action. See, e.g., Lombard (informal
press conference statements by public officials). If even the misuse or unlawful
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
a congressional hearing is sufficient.
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
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
threatening on their face. And reading coercion into statements demanding
censorship of so-called “misinformation,” as code for disfavored content, coupled
with pointed reminders that Defendants’ Section 230 immunity is on the chopping
block, is plausible, especially at the pleadings stage.13
Respected objective observers did in fact interpret these statements as
attempts to pressure social media platforms into serving as the Democratic
establishment’s proxies to censor disfavored speech. One such observer is David
Sacks, a Silicon Valley pioneer, a co-founder of PayPal, and an early investor in
AirBnB, Facebook, Reddit, SpaceX, Uber, and Twitter. He has navigated several
companies from start-up phases to billion-dollar valuations. Mr. Sacks described
the market’s perception of the governmental actions aimed at social media
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
[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.”
Section 230 provides the fulcrum for such threats—something that would
have been inconceivable with traditional news media. Can one imagine President
Nixon coercing the press to stop reporting on Watergate? Or President Harding on
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.
A plausible inference indisputably can be drawn on the basis of this record
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
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
newsletter and refused to publish content provided by the plaintiff, a local
businessman. Plaintiff sued, alleging that the municipal officials’ letter had
resulted in violation of his First Amendment rights. On summary judgment the
district court dismissed the complaint, finding that the letter was not a veiled threat
of reprisal because the officials had no authority to impose sanctions on the
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
for sex-related advertising on website; held, card companies were subject to
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
down anti-homosexuality billboard viewed as “offensive” and “intolerant”;
43
complaint alleging First Amendment violation dismissed for failure to state a
claim; reversed on appeal because letter could be interpreted as carrying implicit
threat of government retaliation if company failed to accede to requests that signs
be removed).
2. The District Court Erred in Holding That This Extensive

Record Did Not Meet the Threshold for Pleading Coercion.
(a) The District Court Failed to Properly Credit

Plaintiffs’ Allegations.
The District Court gave the back of the hand to Plaintiffs’ factual showing,
devoting a scant two paragraphs to discussing the 86 pages of allegations and
evidence of coercion. 1–ER–9–10. Rather than crediting Plaintiffs’ showing, as it
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
officials’ threats regarding repeal of Section 230. Instead of accepting Plaintiffs’
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–
ER–335–41, 362), the Court mischaracterized the explicit threats to repeal
Defendants’ Section 230 immunity as merely “general statements about section
230” and as expressing “general concerns and criticisms.” 1–ER–11.

44
The Court’s characterizations nowhere appear in the FAC; they cannot be
read as anything other than reframing Plaintiffs’ allegations in a weaker light.
Further in this same vein, the Court said, “plaintiffs offer only ambiguous and
open-ended statements to the effect that ‘we may legislate’ something
unfavorable to Twitter or the social media sector.” 1–ER–14 (emphasis added).
Plaintiffs never characterized the official statements as “threats to legislate
something unfavorable,” nor were the statements made in Congress and the White
House “general” or “ambiguous.” The threats were specific, targeted, and directly
linked to whether Defendants would censor disfavored speech as the officials
preferred. 3–ER–335–38. To characterize the threats as merely involving
“something unfavorable,” as the Court did, again grossly recasts Plaintiff’s
allegations. Repealing Defendants’ Section 230 immunity would have been not
merely “unfavorable” but catastrophic. In sum, the District Court’s minimization
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
whether these statements, taken together, reasonably could be viewed as coercive,
such ambiguity must be resolved in Plaintiffs’ favor. Okwedy, 333 F.3d at 344.
By failing to credit Plaintiffs’ showing, the Court invaded the province of
the trier of fact and committed reversible error. Iqbal, 556 U.S. at 662 (plaintiff
45
only needs to allege “sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”).
(b) The District Court Concluded, Erroneously, That

Legislative Threats to Repeal Section 230 Could Not
Constitute Coercion.
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
context alleged because passage of legislation generally is difficult: “There is no
way to allege with any degree of plausibility when, if ever, the comments voiced
by a handful of members of Congress might become a law, or what changes such a
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
legislative threats plaintiffs speak of.”14 1–ER–15.
The Court also sought justification in the fact that the threats were made
during congressional hearings, which the Court implies—without saying
outright—diminishes the threats’ coercive force. “Much of what plaintiffs
challenge fits within the normal boundaries of a congressional investigation, as
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
opposed to threats of punitive state action.” 1–ER–15. Here again the Court
mischaracterized Plaintiffs’ allegations to the point of rendering them
unrecognizable: “[T]he House Committee was making inquiries and surveying
possible problems ‘for the purpose of enabling the Congress to remedy them.’”
1–ER–15. The Court’s characterization is not even plausible; it is highly doubtful
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
Congressman threatened to “compel you, compel you perhaps with penalties, to
make meaningful changes.” 3–ER–338; MJN–26. More importantly, Plaintiffs
have alleged that the hearings were coercive. The District Court simply refused to
believe the allegations.
Defendant Twitter itself has admitted in judicial proceedings that merely
being subject to a government investigation is coercive. Twitter has sued Texas
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
initiating an investigation into Twitter’s content moderation policies. MJN–145.
“Faced with the force of such an investigation,” Twitter’s complaint alleges, “‘a
person of ordinary firmness’ would feel constrained from future exercises of []
protected activity.” Although Twitter, with billions of dollars of resources and a
phalanx of lawyers, is hardly an “ordinary person,” this nascent investigation has
47
“chill[ed] Twitter’s speech.” MJN–146. If Twitter admits to being so intimidated
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
multiple times and showered with threats before a national audience.
The sheer number of threats coming from some of the most powerful
officials in the federal government dramatically amplified their coercive impact.
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
send the same message—censor disfavored content or face devastating
consequences—the severity of the threats and their intimidating effect cannot
plausibly be gainsaid.
The District Court’s analysis also is untenable at a more general level.
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
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
law in support of that conclusion, and none exists.
3. The District Court Wrongly Concluded That the Plaintiffs’

Allegations Were Insufficient Compared to the Facts of
Bantam Books, Lombard, Carlin, and Mathis.
In attempting to distinguish the record here from cases on which Plaintiffs
relied—Bantam Books, Lombard, Carlin, and Mathis—the District Court made
factual determinations about the coercive effect of the government actions in those
cases compared to those alleged here. This was error.
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
“objectionable” books could bring legal repercussions. The commission’s stated
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
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
compelled by subpoena to appear at nationally streamed hearings and undergo
repeated and prolonged badgering by powerful congresspeople would require
judicial angels to dance on the head of a pin. Certainly, there is nothing so
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
Court relied—that the letters were “reasonably understood to be coercive”—was a
clearly improper consideration on a motion to dismiss. The appeal in Bantam
Books followed the trial court’s entry of a preliminary injunction accompanied by
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
decided by the District Court.
50
In Lombard, Black patrons were denied service at an all-White restaurant.
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
said at press conferences that “sit-in” demonstrations would not be tolerated in
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.
According to the District Court, the purportedly distinguishing feature between
Lombard and this case is that, in the former, the city officials “threaten[ed] law
enforcement action to crack down on sit-in demonstrations.” 1–ER–14. But those
threats were aimed at the demonstrators, not at the restaurant owners who are in
the analogous position to Defendants here. Coercion of the restaurant owners
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
compared to the blunt language employed by congressional leaders here.
Moreover, the coercive impact of the Lombard officials’ statements was
determined after trial. The District Court wrongly engaged in a factual
determination that should have been outside the scope of the motion to dismiss.
In Carlin, a county attorney had “advised” a telephone company to
disconnect an “adult entertainment” customer’s service and threatened prosecution
51
under the state’s obscenity laws if it did not comply. The District Court made the
same error as it had in analyzing Bantam Books and Lombard, pointing to
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
with prosecution under a specific law. 1–ER–13. Again, there is no difference.
Government officials in this case threatened to penalize Defendants by repealing a
specific law, Section 230. Obviously, a threat of prosecution is sufficient to
establish coercion, but Carlin nowhere said it is necessary.
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
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
agree with the conclusion that Mathis’ allegations of governmental coercion or
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
standard of conduct the NRC desired was “backed up by threats of enforcement or
of formal rulemaking,” 1–ER–13, an observation that only underscores how
similar the cases are. There is no meaningful distinction between threats to initiate
a regulatory enforcement proceeding or rulemaking and congressional threats to
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
than the latter.
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
ambiguous and open-ended statements.” 1–ER–14. That is simply untrue.
Plaintiffs have alleged specific and targeted threats; the District Court refused to
credit their allegations. See supra at 44–46.
53
4. Plaintiffs Do Not Rely on Compliance with Generally

Applicable Laws.
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
Heineke, Plaintiffs do not rely on Defendants’ compliance with a generally
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
group of citizens who expressed identified disfavored views. That framework
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
individually; the Commission didn’t even know he existed.16
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)
54
E. Plaintiffs Also Adequately Alleged State Action by

Encouragement and Joint Action.
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
State action exists when the government provides significant
encouragement, overt or covert, to the private party’s conduct. Blum, 457 U.S.
at 1004. The above-described official statements, coupled with Defendants’
governmentally conferred Section 230 immunity provided “significant
encouragement” to Defendants’ censorship.
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
(footnote continued from previous page)

did not target any individual passenger); United States v. Davis, 482 F.2d 893, 904
(9th Cir. 1973) (passenger search by private airline was state action due to FAA’s
incipient efforts to create anti-hijacking program, although no federal regulation
existed at the time; no claim that FAA specifically directed the particular search).
55
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
State in private [viewpoint based] discrimination.” Reitman, 387 U.S. at 376.
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
constitutional amendment making private discriminatory practices immune from
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
grant of immunity impermissibly encourages Defendants to block disfavored
speech. And in Skinner the regulations immunizing employers from liability for
performing voluntary drug testing “removed all legal barriers” to such testing and
thus were “clear indices of the Government’s encouragement, endorsement, and
participation” in the practice. 489 U.S. at 615–16. Section 230(c) similarly is one
of several “indices of the Government’s encouragement” of such censorship.
2. Joint Action
The joint action test asks “whether state officials and private parties have
acted in concert in effecting a particular deprivation of constitutional rights.”
56
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012). The test is
satisfied by an “understanding” between the private party and government officials
to accomplish a common objective. See, e.g., Adickes, 398 U.S. at 158–59 (tacit
“understanding” enough to create state action). “Such an agreement need not be
overt, and may be inferred on the basis of circumstantial evidence….” Mendocino
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
[defendants and officials] … reached an understanding” to achieve [unlawful]
objectives.’” Id. at 1301–02.
The record is replete with facts from which a jury could infer a common
understanding between the government and Defendants to censor President Trump
and those who published disfavored views. Defendant Dorsey admitted that
Defendants “partnered” with the federal government to “share information” and
“gather input” to “inform [Twitter’s] policy and enforcement decisions” 2–ER–
122, 125–26. He explicitly committed to implementing Democratic legislators’
censorship program:
Sen. Tammy Duckworth: “So in closing, I would like each witness

to provide a personal commitment that your respective companies
will aggressively identify[] and remov[e] disinformation…. Do I
have that commitment from each of you gentlemen?”
Defendant Dorsey: “We make that commitment.”

57
MJN–10–11 (emphases added).
Sen. Blumenthal: My question to you is will you commit to the

same kind of robust content modification playbook in this coming
election, including fact-checking, labeling, reducing the spread of
misinformation, and other steps, even for politicians in the runoff
elections ahead?
Defendant Dorsey: Yes, we do.
MJN–19 (emphases added). Congressional Democrats admitted that their
campaign worked: “These platforms [Twitter, YouTube, and Facebook] often
ramp up their efforts against [conservative] content in response to social and
political pressure.” 2–ER–152 (emphasis added). Executive Branch officials
publicly stated that they are “regularly in touch with social media platforms to
censor speech that the government regards as undesirable. 3–ER–341–42, 346–48.
These allegations are enough to raise a triable issue regarding Defendants’ “willful
participation” in the joint censorship campaign. Sutton, 192 F.3d at 843.
Moreover, the recent astonishing revelations of the Biden administration’s
close entanglement with social media censorship, see supra at 14–17,
unquestionably disclose joint action. Had Plaintiffs’ claim been allowed to
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
most superficial analysis was error.
58
II. The District Court Erred in Applying California Law.
The District Court dismissed Plaintiffs’ claim under FDUPTA, Florida’s
consumer protection law, on choice of law grounds. 1–ER–17–20. FDUPTA
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
contrast, as a result of a 2004 referendum, standing under California’s Business
and Professions Code Section 17200 (“Section 17200”) is limited to those who
“have lost money or property as a result of such unfair competition.” Californians
for Disability Rights v. Mervyn’s LLC, 39 Cal. 4th 223, 227 (2006). As Florida’s
liberal standing requirements allow FDUTPA actions from plaintiffs otherwise
foreclosed by Section 17200’s economic injury requirement, this fundamental
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
“fundamentally at odds” based on its misreading of Clayworth v. Pfizer, Inc., 49
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
59
injunctive relief even if no restitutionary recovery is available. Id. The Court
apparently overlooked the immediately preceding portion of Clayworth, Section III
A (entitled “Standing”), which clearly restricts Section 17200 standing to parties
who “have ‘lost money or property.’” Clayworth, 49 Cal. 4th at 789. The District
Court’s analysis is inapplicable to the question of standing, and therefore to the
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
District Court’s dismissal of Plaintiffs’ FDUPTA claim on choice of law grounds
was error.17
III. Plaintiffs Have Standing Under the SSMCA.
The District Court made two errors in concluding that Plaintiffs lacked
standing under the SSMCA. 1–ER–19–20.
The SSMCA applies to any user who “resides or is domiciled in [Florida]
and . . . has an account on a social media platform.” Fla. Stat. § 501.2041(1)(h)
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).
60
(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
been suspended, not closed. 3–ER–356–59, 361. Nothing in the SSMCA
forecloses standing to a user with a suspended account. The SSMCA only requires
that a user, “resides or is domiciled in [Florida] and . . . has an account on a social
media platform.” Fla. Stat. § 501.2041(1)(h).18
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,
which itself is wrongful. Moreover, as a private attorney general statute, the
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
inconsistent treatment. Fla. Stat. § 501.2041(6). Accordingly, all Florida Plaintiffs
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.
61
inconsistent application of Twitter’s standards as detailed in the FAC.19 3–ER–
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.
Date: November 14, 2022 Law Office of Andrei D. Popovici, P.C.

s/ Marie L. Fiala
Marie L. Fiala
Attorneys for Appellants
Donald J. Trump, American Conservative
Union, Rafael Barbosa, Linda Cuadros,
Dominick Latella, and Wayne Allyn Root
JOHN P. COALE ALEX KOZINSKI
2901 Fessenden Street NW 719 Yarmouth Road Suite 101
Washington, DC 20008 Palos Verdes Estates, CA 90274
Telephone: (202) 255-2096 Telephone: (310) 541-5885
Email: [email protected] Email: [email protected]
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.
62
RICHARD POLK LAWSON FRANK C. DUDENHEFER , JR.

GARDNER BREWER HUDSON THE DUDENHEFER LAW FIRM
400 North Ashley Drive L.L.C.
Suite 1100 2721 Saint Charles Avenue, Suite 2A
Tampa, FL 33602 New Orleans, LA 70130
Telephone: (813) 221-9600 Telephone: (504) 616-5226
Facsimile: (813) 221-9611 Email: [email protected]
Email: [email protected]
JOHN Q. KELLY
MICHAEL J. JONES
RYAN TOUGIAS
IVEY, BARNUM & O’MARA, LLC
170 Mason Street
Greenwich, CT 06830
Telephone: (203) 661-6000
63
UNITED STATES COURT OF APPEALS

CERTIFICATE OF COMPLIANCE
9th Cir. Case Number: No. 22–15961
I am the attorney or self-represented party.
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.
32(a)(5) and (6).
I certify that this brief (select only one):
[ ] complies with the word limit of Cir. R. 32-1.
[ ] 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 _____________.
[X] is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).
Signature: s/ Marie L. Fiala Date: November 14, 2022

Marie L. Fiala
64
UNITED STATES COURT OF APPEALS

Statement of Related Cases Pursuant to Circuit Rule 28-2.6
9th Cir. Case Number: No. 22–15961
The undersigned attorney or self-represented party states the following:
[ ] I am unaware of any related cases currently pending in this court.
[ ] 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:
Children’s Health Defense v. Facebook, Inc., et al., No. 21–16210
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.
Signature: s/ Marie L. Fiala Date: November 14, 2022

Marie L. Fiala
65
ADDENDUM
TABLE OF CONTENTS
Page
U.S. Const. amend. I ..........................................................................................Add.1
47 U.S. Code § 230 ............................................................................................Add.2
Calif. Bus. & Prof. Code § 17200 ......................................................................Add.7
Fla. Stat. § 501.211(1)........................................................................................Add.9
Fla. Stat. § 501.2041 ........................................................................................Add.10

U.S. Const. amend. I
Congress shall make no law respecting an establishment of religion, or prohibiting
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
47 U.S. Code § 230
(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
(4) to remove disincentives for the development and utilization of blocking

and filtering technologies that empower parents to restrict their children’s
access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and
punish trafficking in obscenity, stalking, and harassment by means of
computer.
(c) Protection for “Good Samaritan” blocking and screening of offensive
material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information
content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on
account of—
(A) any action voluntarily taken in good faith to restrict access to or
availability of material that the provider or user considers to be
obscene, lewd, lascivious, filthy, excessively violent, harassing, or
otherwise objectionable, whether or not such material is
constitutionally protected; or
(B) any action taken to enable or make available to information
content providers or others the technical means to restrict access to
material described in paragraph (1).
(d) Obligations of interactive computer service
A provider of interactive computer service shall, at the time of entering an
agreement with a customer for the provision of interactive computer service and in
a manner deemed appropriate by the provider, notify such customer that parental
Add.3
control protections (such as computer hardware, software, or filtering services) are

commercially available that may assist the customer in limiting access to material
that is harmful to minors. Such notice shall identify, or provide the customer with
access to information identifying, current providers of such protections.
(e) Effect on other laws
(1) No effect on criminal law
Nothing in this section shall be construed to impair the enforcement of
section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110
(relating to sexual exploitation of children) of title 18, or any other Federal
criminal statute.
(2) No effect on intellectual property law
Nothing in this section shall be construed to limit or expand any law
pertaining to intellectual property.
(3) State law
Nothing in this section shall be construed to prevent any State from
enforcing any State law that is consistent with this section. No cause of
action may be brought and no liability may be imposed under any State or
local law that is inconsistent with this section.
(4) No effect on communications privacy law
Nothing in this section shall be construed to limit the application of the
Electronic Communications Privacy Act of 1986 or any of the amendments
made by such Act, or any similar State law.
(5) No effect on sex trafficking law
Nothing in this section (other than subsection (c)(2)(A)) shall be construed
to impair or limit—
Add.4
(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
The term “access software provider” means a provider of software (including

client or server software), or enabling tools that do any one or more of the
following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize,
reorganize, or translate content.
Add.6
Calif. Bus. & Prof. Code § 17200
As used in this chapter, unfair competition shall mean and include any unlawful,
unfair or fraudulent business act or practice and unfair, deceptive, untrue or
misleading advertising and any act prohibited by Chapter 1 (commencing with
Section 17500) of Part 3 of Division 7 of the Business and Professions Code.
* * *
Any person who engages, has engaged, or proposes to engage in unfair
competition may be enjoined in any court of competent jurisdiction. The court
may make such orders or judgments, including the appointment of a receiver, as
may be necessary to prevent the use or employment by any person of any practice
which constitutes unfair competition, as defined in this chapter, or as may be
necessary to restore to any person in interest any money or property, real or
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
attorney, county counsel, city attorney, or city prosecutor in this state.
* * *
Add.7
Actions for relief pursuant to this chapter shall be prosecuted exclusively in a court
of competent jurisdiction by the Attorney General or E district attorney or
by E county counsel authorized by agreement with the district attorney in actions
involving violation of a county ordinance, or F]E city attorney of a city having a
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
complaint or upon the complaint of E board, officer, person, corporation, or
association, or by E person who has suffered injury in fact and has lost money or
property as a result of the unfair competition.
Add.8
Fla. Stat. § 501.211(1)
Other individual remedies.—
(1) Without regard to any other remedy or relief to which a person is
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,
engaged in the dissemination of claims of a manufacturer or wholesaler without
actual knowledge that it violated this part.
(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
Fla. Stat. § 501.2041
Unlawful acts and practices by social media platforms.—
(1) As used in this section, the term:
(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
that is used in sorting or ranking content or material based on relevancy or other
factors instead of using published time or chronological order of such content 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
right to post, remove, or post an addendum to any content or material posted by a
user. The term also includes actions to inhibit the ability of a user to be viewable
by or to interact with another user of the social media platform.
(c) “Deplatform” means the action or practice by a social media platform to
permanently delete or ban a user or to temporarily delete or ban a user from the
social media platform for more than 14 days.
(d) “Journalistic enterprise” means an entity doing business in Florida that:
1. Publishes in excess of 100,000 words available online with at least 50,000 paid
subscribers or 100,000 monthly active users;
Add.10
2. Publishes 100 hours of audio or video available online with at least 100
million viewers annually;
3. Operates a cable channel that provides more than 40 hours of content per week
to more than 100,000 cable television subscribers; or
4. Operates under a broadcast license issued by the Federal Communications
Commission.
(e) “Post-prioritization” means action by a social media platform to place,
feature, or prioritize certain content or material ahead of, below, or in a more or
less prominent position than others in a newsfeed, a feed, a view, or in search
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
social media platform.
(f) “Shadow ban” means action by a social media platform, through any means,
whether the action is determined by a natural person or an algorithm, to limit or
eliminate the exposure of a user or content or material posted by a user to other
users of the social media platform. This term includes acts of shadow banning by a
social media platform which are not readily apparent to a user.
(g) “Social media platform” means any information service, system, Internet
search engine, or access software provider that:
Add.11
1. Provides or enables computer access by multiple users to a computer server,
including an Internet platform or a social media site;
2. Operates as a sole proprietorship, partnership, limited liability company,
corporation, association, or other legal entity;
3. Does business in the state; and
4. Satisfies at least one of the following thresholds:
a. Has annual gross revenues in excess of $100 million, as adjusted in January of
each odd-numbered year to reflect any increase in the Consumer Price Index.
b. Has at least 100 million monthly individual platform participants globally.
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
park or entertainment complex as defined in s. 509.013.
(h) “User” means a person who resides or is domiciled in this state and who has
an account on a social media platform, regardless of whether the person posts or
has posted content or material to the social media platform.
(2) A social media platform that fails to comply with any of the provisions of this
subsection commits an unfair or deceptive act or practice as specified in s.
501.204.
Add.12
(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
banning standards in a consistent manner among its users on the platform.
(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
changes more than once every 30 days.
(d) A social media platform may not censor or shadow ban a user’s content or
material or deplatform a user from the social media platform:
1. Without notifying the user who posted or attempted to post the content or
material; or
2. In a way that violates this part.
(e) A social media platform must:
1. Provide a mechanism that allows a user to request the number of other
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
participants who were provided or shown content or posts.
(f) A social media platform must:
Add.13
1. Categorize algorithms used for post-prioritization and shadow banning.
2. Allow a user to opt out of post-prioritization and shadow banning algorithm
categories to allow sequential or chronological posts and content.
(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
opt-out opportunity in subparagraph (f)2.
(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
known by the social media platform to be a candidate as defined in s.
106.011(3)(e), beginning on the date of qualification and ending on the date of the
election or the date the candidate ceases to be a candidate. Post-prioritization of
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
user’s qualification by reviewing the website of the Division of Elections or the
website of the local supervisor of elections.
Add.14
(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
shadow ban a journalistic enterprise based on the content of its publication or
broadcast. Post-prioritization of certain journalistic enterprise content based on
payments to the social media platform by such journalistic enterprise is not a
violation of this paragraph. This paragraph does not apply if the content or material
is obscene as defined in s. 847.001.
(3) For purposes of subparagraph (2)(d)1., a notification must:
(a) Be in writing.
(b) Be delivered via electronic mail or direct electronic notification to the user
within 7 days after the censoring action.
(c) Include a thorough rationale explaining the reason that the social media
platform censored the user.
(d) Include a precise and thorough explanation of how the social media platform
became aware of the censored content or material, including a thorough
explanation of the algorithms used, if any, to identify or flag the user’s content or
material as objectionable.
Add.15
(4) Notwithstanding any other provisions of this section, a social media platform
is not required to notify a user if the censored content or material is obscene as
defined in s. 847.001.
(5) If the department, by its own inquiry or as a result of a complaint, suspects
that a violation of this section is imminent, occurring, or has occurred, the
department may investigate the suspected violation in accordance with this part.
Based on its investigation, the department may bring a civil or administrative
action under this part. For the purpose of bringing an action pursuant to this
section, ss. 501.211 and 501.212 do not apply.
(6) A user may only bring a private cause of action for violations of paragraph
(2)(b) or subparagraph (2)(d)1. In a private cause of action brought under
paragraph (2)(b) or subparagraph (2)(d)1., the court may award the following
remedies to the user:
(a) Up to $100,000 in statutory damages per proven claim.
(b) Actual damages.
(c) If aggravating factors are present, punitive damages.
(d) Other forms of equitable relief, including injunctive relief.
(e) If the user was deplatformed in violation of paragraph (2)(b), costs and
reasonable attorney fees.
Add.16
(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
treated as a separate violation, act, or practice. For purposes of bringing an action
in accordance with subsections (5) and (6), a social media platform that censors,
shadow bans, deplatforms, or applies post-prioritization algorithms to candidates
and users in the state is conclusively presumed to be both engaged in substantial
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
to the jurisdiction of the courts of the state.
(8) In an investigation by the department into alleged violations of this section,
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.
(10)(a) All information received by the department pursuant to an investigation
by the department or a law enforcement agency of a violation of this section is
confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State
Add.17
Constitution until such time as the investigation is completed or ceases to be
active. This exemption shall be construed in conformity with s. 119.071(2)(c).
(b) During an active investigation, information made confidential and exempt
pursuant to paragraph (a) may be disclosed by the department:
1. In the performance of its official duties and responsibilities; or
2. To another governmental entity in performance of its official duties and
responsibilities.
(c) Once an investigation is completed or ceases to be active, the following
information received by the department shall remain confidential and exempt from
s. 119.07(1) and s. 24(a), Art. I of the State Constitution:
1. All information to which another public records exemption applies.
2. Personal identifying information.
3. A computer forensic report.
4. Information that would otherwise reveal weaknesses in a business’s data
security.
5. Proprietary business information.
(d) For purposes of this subsection, the term “proprietary business information”
means information that:
1. Is owned or controlled by the business;
Add.18
2. Is intended to be private and is treated by the business as private because
disclosure would harm the business or its business operations;
3. Has not been disclosed except as required by law or a private agreement that
provides that the information will not be released to the public;
4. Is not publicly available or otherwise readily ascertainable through proper
means from another source in the same configuration as received by the
department; and
5. Includes:
a. Trade secrets as defined in s. 688.002.
b. Competitive interests, the disclosure of which would impair the competitive
advantage of the business that is the subject of the information.
(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
reviewed and saved from repeal through reenactment by the Legislature.
Add.19

Trump v. Twitter (Kozinski)

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Case: 22-15961, 11/14/2022, ID: 12585950, DktEntry: 31, Page 1 of 96

Case No. 22-15961

IN THE UNITED STATES COURT OF APPEALS

DONALD J. TRUMP, the Forty-Fifth President of the United States;

APPELLANTS DONALD J. TRUMP, AMERICAN CONSERVATIVE UNION,

JOHN P. COALE ANDREI POPOVICI

COUNSEL PRESS ∙ (213) 680-2300 PRINTED ON RECYCLED PAPER

publicly held corporation owns 10% or more of its stock.

Date: November 14, 2022

Law Office of Andrei D. Popovici, P.C.

Attorneys for Appellants

DISCLOSURE STATEMENT .................................................................................. i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES .....................................................................................v

JURISDICTIONAL STATEMENT ..........................................................................5

STATUTORY AUTHORITIES ................................................................................5

ISSUE(S) PRESENTED ............................................................................................5

STATEMENT OF THE CASE ..................................................................................5

I. Threats and Inducements by Congressional Democrats .......................6

II. Executive Branch Actions to Censor Speech ........................................9

III. Concerted Action by Defendants and Government Actors .................13

IV. Procedural Background .......................................................................17

SUMMARY OF ARGUMENT ...............................................................................18

A. Legal Standards .........................................................................20

1. Standards Governing a Rule 12(b)(6) Motion ................20

2. Standards Governing a State Action Determination ......21

1. The District Court Erred by Failing to Assess Plaintiffs’

2. The District Court Also Failed to Apply Lugar

3. The District Court Erroneously Held That Defendants

C. In Any Event, Plaintiffs Have Met the Lugar Test,

1. Exercise of a Right or Privilege......................................31

2. Rule of Conduct ..............................................................34

D. The District Court Erroneously Concluded That the

1. Plaintiffs Have Pleaded Ample Facts Showing

2. The District Court Erred in Holding That This

(a) The District Court Failed to Properly Credit

(b) The District Court Concluded, Erroneously, That

3. The District Court Wrongly Concluded That the

4. Plaintiffs Do Not Rely on Compliance with Generally

E. Plaintiffs Also Adequately Alleged State Action by

1. Encouragement ...............................................................55

2. Joint Action .....................................................................56

II. The District Court Erred in Applying California Law. .......................59

III. Plaintiffs Have Standing Under the SSMCA ......................................60

CERTIFICATE OF COMPLIANCE .......................................................................64

STATEMENT OF RELATED CASES ...................................................................65

Carlin Commc’ns, Inc. v. Mountain States Tel. & Tel. Co.,

Rawson v. Recovery Innovations, Inc.,

42 U.S.C. § 1983 ...................................................................................................... 24

with by threatening, demanding, and colluding with social media platforms to

a laptop full of incriminating evidence at a repair shop in Delaware. Galileo spent

of dissidents today are arrested or killed by despotic governments eager to suppress

truth is forged by exposing all ideas to opposition, debate, and discussion.

E=mc2 revolutionized physics, not because it got thousands of likes on Facebook,

but because it survived withering criticism by proclaimed experts.2

they are the subjects of bullying, threats, and thinly-veiled invitations to

“collaborate” by government actors who wield immense power to harm them if

they don’t toe the line.

on an immensely generous grant of legal protection: Section 230(c) of the

Communications Decency Act, 47 U.S.C. § 230(c) (“Section 230”). Congress

transmitting, receiving, or debating them.

This is not an arcane First Amendment issue; our democracy itself is at

suppression of ideas is unhealthy for a democracy and leads millions of Americans