A federal appeals panel has ruled Twitter and the state of California did not illegally collude to kick user off Twitter for demanding investigations into the results of the 2020 elections, but rather ruled the social media company's interest in fighting alleged election misinformation "aligns" with that of the state.
The March 10 decision was authored by Circuit Judge Paul Watford, with concurrence from circuit judges Susan Graber and Evan Wallach, of the U.S. Court of Appeals for the Ninth Circuit. The decision went against Rogan O'Handley in his dispute with Twitter and California Secretary of State Shirley Weber.
O'Handley is a lawyer in St. Petersburg, Florida, who is licensed to practice in California. He also described himself as a civil rights activist, commentator, journalist and social media influencer with more than three million followers, according to his suit.
Several days after the November 2020 elections, O'Handley posted on Twitter, "Audit every California ballot," "Election fraud is rampant nationwide and we all know California is one of the culprits" and "Do it to protect the integrity of that state’s elections."
Less than one week later, the California Secretary of State's Office of Elections Cybersecurity (OEC) allegedly told Twitter that O'Handley's post was wrong, because votes are audited.
"This is a blatant disregard to how our voting process works and creates disinformation and distrust among the general public," the OEC said to Twitter.
Twitter lodged a "strike" against O'Handley's Twitter account, with Twitter having a five-strikes-and-your-out rule. The company also limited access to O'Handley's posts by Twitter users. By February 2021, O'Handley reached five strikes and was banned, according to court papers.
O'Handley sued in California federal district court, claiming Twitter and Secretary of State Weber trampled his constitutional rights.
District Judge Charles Breyer threw out the suit, determining Twitter did not act on behalf of the state and the company did not conspire with state officials.
On appeal, Circuit Judge Watford found Twitter took action on its own, not at the behest of the state, even though California state officials first brought the matter to Twitter's attention.
"Twitter acted in accordance with its own content-moderation policy when it limited other users’ access to O’Handley’s posts and ultimately suspended his account," Watford said.
As far as the state's role, Watford noted Twitter's actions stemmed from its user agreement with O'Handley.
"The company acted under the terms of its own rules, not under any provision of California law. Twitter was free to agree with the OEC’s suggestions — or not," Watford said, adding, "OEC's mandate gives it no enforcement power over Twitter."
According to court documents, Twitter removed 98 percent of posts flagged by the OEC. Watford did not see this as evidence Twitter was a private enforcer for the government, but rather Twitter and the state were "generally aligned in their missions to limit the spread of misleading election information."
In addition, "OEC offered Twitter no incentive for taking down the post that it flagged" and "OEC did nothing more than make a request with no strings attached," Watford noted.
Watford said Twitter is within its rights to uphold the integrity of discourse on its platform and there is "nothing illicit in seeking support from outside actors, including government officials, to achieve this goal."
Notwithstanding this outside support, Watford said there was a "meeting of the minds [with the OEC] to promptly address election misinformation, not a meeting of the minds to violate constitutional rights."
O'Handley's ultimate suspension came after four more strikes, which had nothing to do with the OEC, were assessed against him, Watford said.
O'Handley has been represented by Karin M. Sweigart, Harmeet K. Dhillon and Ronald D. Coleman, of San Francisco-based Dhillon Law Group.
Twitter has been defended by Ari Holtzblatt, Patrick J. Carome, Susan M. Pelletier, Emily Barnet, Rishita Apsani, Felicia H. Ellsworth, David C. Marcus and Thomas G. Sprankling, of Wilmer, Cutler, Pickering, Hale & Dorr, which is based in Washington, D.C.
Weber has been defended by California Attorney General Rob Bonta and Anna Ferrari, Paul Stein and Thomas S. Patterson, of Bonta's office. Melissa Muller, a student at Yale Law School and Andrew Albright, a student at the University of California Berkeley Law School, also helped defend Weber.