From Alliance of L.A. County Parents v. County of L.A. Dep't of Public Health, decided last week by Judge William Fahey (L.A. Superior Court):
[Plaintiff] alleges [that] … DPH caused the suspension of Alliance's Twitter account. A bench trial has been set for October 16, 2023….
[D]efendants argue that their actions in reporting the Alliance Twitter account ("Alt Account") were only to identify a "potential impersonation account"' and were not coercive or threatening…. Alliance … argues that defendants improperly coerced Twitter to permanently suspend the Alt Account….
Alliance has … shown that there is a material issue of fact as to whether DPM [likely meaning DPH -EV] improperly used its political connections to coerce Twitter to suspend Alliance's Alt Account…. [T]he parties generally agree that the law is unsettled as to the issue of when a private entity such as "X" becomes a state actor for First Amendment purposes. At the hearing, the parties argued the import of the recent decision of State of Missouri v. Biden.
In the Biden case, the Fifth Circuit Court of Appeals dealt with the issue of government actors who were alleged to have coerced social media platforms to take adverse actions against parties who expressed disfavored viewpoints. The opinion noted that there is a difference on the one hand between "persuasion" by a government actor and, on the other hand, "coercion and significant encouragement." Where that line is drawn depends on the facts of the case.
The Fifth Circuit endorsed the "four factor test" previously relied upon by the Second and Ninth Circuit Courts of Appeal. The factors are: (1) the speaker's word choice; (2) whether the speech was perceived as a threat; (3) the existence of regulatory authority and (4) whether the speech refers to or intimates adverse consequences. In applying those factors to the evidence in Biden, the Fifth Circuit concluded that the FBI and the CDC had coerced and/or significantly encouraged social media platforms to take adverse actions against the plaintiffs in that case. Because the "deprivation of First Amendment rights, even for a short period is sufficient to establish irreparable injury," the Fifth Circuit approved a preliminary injunction as to the FBI, the CDC and a number of named federal officials….
This Court concludes that the Biden case is well reasoned, highly persuasive and should be applied here. In doing so, it cannot be concluded as a matter of law that defendants' actions did not amount to coercion of and/or significant encouragement to X to suspend Alliance's Alt Account. Such a determinaion can only be made following a trial based on the evidence and the reasonable inferences to be drawn therefrom.
Here are the allegations related to the closing of the account (paragraphs 11 to 14 are agreed to by the parties, but the others are just the Alliance's claims):
