From O'Handley v. Weber, decided Friday in an opinion by Ninth Circuit Judge Paul Watford, joined by Judge Susan Graber and Federal Circuit Judge Evan Wallach:
Rogan O'Handley contends that the social media company Twitter Inc. and California's Secretary of State, Shirley Weber, violated his constitutional rights by acting in concert to censor his speech on Twitter's platform. He alleges that the Secretary of State's office entered into a collaborative relationship with Twitter in which state officials regularly flagged tweets with false or misleading information for Twitter's review and that Twitter responded by almost invariably removing the posts in question. O'Handley further alleges that, after a state official flagged one of his tweets as false or misleading, Twitter limited other users' ability to access his tweets and then suspended his account, ostensibly for violating the company's content-moderation policy….
[We conclude] that Twitter's interactions with state officials did not transform the company's enforcement of its content-moderation policy into state action….
As alleged in his complaint, O'Handley is a licensed attorney who makes his living as a political commentator, including on social media where he operates under the handle "@DC_Draino." On November 12, 2020, just over a week after the presidential election, he posted the following tweet on his Twitter account:
Audit every California ballot
Election fraud is rampant nationwide and we all know California is one of the culprits
Do it to protect the integrity of that state's elections
Five days later, an unidentified member of the OEC allegedly sent the following message to Twitter through the Partner Support Portal:
Hi, We wanted to flag this Twitter post: https://twitter.com/DC_Draino/status/1237073866578096129 From user @DC_Draino. In this post user claims California of being a culprit of voter fraud, and ignores the fact that we do audit votes. This is a blatant disregard to how our voting process works and creates disinformation and distrust among the general public.
O'Handley does not allege that the OEC communicated with Twitter about him on any other occasion. But based on past communications between the OEC and Twitter regarding other users, he alleges that the message constituted a request that Twitter "take down" his post from its platform. O'Handley further alleges that, on or about the same day that Twitter received the OEC's message, the company (1) appended a warning label to his tweet stating that the tweet's election fraud claim was "disputed," (2) limited other users' ability to access and interact with his tweet, and (3) assessed a "strike" against his account….
