The 21st century court system has seen a surge of internet-related cases as websites and social media platforms continue to connect more individuals around the globe. While only 5 percent of adults in the United States reported using social media in 2005, the number has now skyrocketed to more than 70 percent.1 Today, people use social media platforms like Facebook, YouTube, and Twitter to discuss social and political matters.2 Originally created as “social networks,” where individuals could stay in touch with friends and family, these platforms have rooted themselves into most aspects of day-to-day life.3 Although the common voice has been elevated, there is a growing concern that these platforms may be violating their users’ free speech rights while asserting their own status as private entities.4
October 14, 2022 Feature
Five Strikes, and You’re Out: Courts Find That Twitter Can Restrict More Than Just Your Character Count
By John C. Greiner and Michaela Taylor
The First Amendment and State Action
The First Amendment provides that “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.”5 While it is well settled that this provision restricts government action, the U.S. Supreme Court has extended this rule to address certain situations in which a private actor is treated as an agent of the state and therefore subject to constitutional claims.6 Non–state actors have been found to be state actors under two limited exceptions—the public function exception and the government entanglement exception.7
Under the public function exception, a private party may be subject to the First Amendment if it exercises “powers traditionally exclusively reserved to the State.”8 The seminal public function exception case is Marsh v. Alabama, where the Court held that the First Amendment applied to a company-owned town.9 The Marsh Court held that the town violated a Jehovah’s Witness’s First Amendment rights by convicting her of criminal trespass for distributing religious literature on the sidewalk near the post office.
Under the government entanglement exception, private parties may also qualify as state actors if they act as government agents or if other factors demonstrate a “nexus” between the government and the private party’s speech-restrictive action.10 For example, where a private entity provides an essential service traditionally and exclusively reserved to the state, the Supreme Court has found such a nexus.11
The Supreme Court recently discussed the state action doctrine as applied to the digital era in Manhattan Community Access Corp. v. Halleck.12 In this case, the Court analyzed a New York regulation that required cable operators of a certain size to provide a public access channel with content broadcast on a first-come, first-served basis.13 Manhattan Neighborhood Network (MNN), operated by Manhattan Community Access Corp., was assigned control of the public access channel by the Manhattan Borough president.14 The plaintiffs, Halleck and Melendez, attempted to utilize public access resources to broadcast a film.15 When they were denied access, they brought an action against New York City and MNN, alleging that MNN had violated their First Amendment rights.16 The district court dismissed the plaintiff’s First Amendment claim, and the Second Circuit reversed, finding in favor of MNN.17 The court’s ruling created a split between the Second Circuit and the D.C. Circuit’s previous decision in Community Media v. FCC, which held that public access channels did not qualify as state actors.18 Looking to resolve the split, the Supreme Court granted certiorari.19
Upon review, Justice Brett Kavanaugh, writing for the majority in a 5–4 decision, adopted a new test in which a court may find state action by a private actor in three situations.20 The first arises when a private party meets the “traditional, exclusive public function” test.21 The second arises “when the government compels [a] private entity to take a particular action.”22 The third arises when the “government acts jointly with the private entity.”23 Under this new test, the Court ultimately held that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.”24 Thus, MNN was not liable for any alleged First Amendment violation.25
While the Court narrowed this decision to public access channels,26 its reasoning has often been cited when discussing the First Amendment rights of social networking users.27
In her dissent, Justice Sonia Sotomayor framed the question as one in which an organization was appointed by the government to administer a constitutional public forum. In stepping into that role, the private entity acted as the state’s agent. This agency relationship qualified the private actor as a state actor under her analysis.28
Social Media Censorship Challenges in the Ninth Circuit
As noted in Halleck, one way to meet the state action requirement is to show that governmental pressure coerced the private entity to take the challenged action. The government may violate the First Amendment by encouraging a third party to limit speech in a way that “can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.”29 This issue of “jawboning” has been one of interest recently.30 Regulations enacted by the government that prompt a certain action can also create state action if a statute or regulation provides “clear indices of the Government’s encouragement, endorsement, and participation.”31 For example, where the Federal Railroad Administration authorizes, but does not mandate, railroads to administer breath and urine tests to employees who violate certain safety rules, there is sufficient government encouragement to implicate Fourth Amendment concerns.32
Recently, individuals have sued social media platforms such as Facebook and Twitter, claiming that their actions were equivalent to state action.33 In March 2022, the U.S. District Court for the Northern District of California considered whether content moderation by Twitter equated to coerced state action.34 In February 2021, Colleen Huber, an anti-vaccine activist, tweeted a quote from an Israeli news article on her personal Twitter account.35 The tweet stated: “Infection disease team: [Pfizer’s experimental shot causes] ‘mortality hundreds of times greater in young people compared to mortality from coronavirus without the #vaccine, and dozens of times more in the elderly.’”36
Soon after, Twitter suspended Huber’s account, claiming that it violated its “Twitter COVID-19 Policy.”37 The Twitter COVID-19 Policy states that users “may not use Twitter’s services to share false or misleading information about COVID-19 which may lead to harm.”38 For example, “sharing content that may mislead people about the nature of the COVID-19 virus; the efficacy and or safety of preventative measures, treatments, or other precautions to mitigate or treat the disease . . . or the prevalence of the virus or risk of infection or death associated with COVID-19” violates the policy.39
Huber then filed suit against Twitter claiming that the platform conspired with the Biden administration to prevent negative content related to the COVID-19 vaccine.40 The court was unpersuaded and found that Huber failed to adequately allege that President Joe Biden and Twitter worked hand in hand to suspend her Twitter account or that Twitter would not have suspended her Twitter account absent an improper motive or conspiracy.41 With no evidence of conspiracy, the court held that Twitter was in fact a private actor and was not subject to the constraints of the First Amendment.42
A few months later, the same court addressed a similar scenario.43 In an attempt to limit the spread of disinformation during the pandemic, Twitter announced a five-strike policy in which staff review tweets for violation of Twitter’s rules and policies.44 The first strike does not result in any further action, while the second and third strikes result in a 12-hour account lock. The fourth strike results in a seven-day account lock, followed by permanent suspension after the fifth strike.45
Shortly after implementation of the policy, Alex Berenson, a journalist, contacted Twitter and noted his concern with what he considered censorship.46 A Twitter vice president assured Berenson that his name had “never come up in the discussions around these policies.”47 Not long after this conversation, Berenson found himself suspended from Twitter after receiving five strikes for his outspoken criticism of the response to the COVID-19 pandemic.48
Using an argument similar to Huber’s, Berenson alleged that cajoling from various federal officials about the need to address COVID misinformation transformed Twitter into a state actor and also argued that the suspension was a breach of contract.49 To begin its ruling, the court noted that section 230 of the Communications Decency Act alone barred Berenson’s claims that related to Twitter’s efforts to moderate and edit his content.50 Section 230 provides that the operator of an interactive computer service, such as Twitter, is immune from claims that seek to treat Twitter as a publisher of third-party content.51 Without this provision, internet platforms would likely face more legal liability for the content that they choose to moderate.
Although the court ruled that section 230 already barred the claim, it turned to the constitutional argument and found that Berenson’s allegations did not constitute a “plausible” First Amendment claim.52 The court held that Berenson had not alleged sufficient facts to find that the government coerced Twitter in a way that would lead it to conclude the site was participating in state action.53
But Berenson was not completely out of luck.54 The court allowed his claim for breach of contract to proceed, holding that because Twitter’s vice president made specific representations to Berenson, those representations could support a claim for breach of contract, which is not protected by section 230.55 While this claim has yet to be resolved, the court was clear that Twitter can only be held liable for the specific representations made to Berenson, not its entire moderating policy.56
The District Court for the Northern District of California took up the question once again in May 2022.57 After Facebook and Twitter removed a post by user Justin Hart, he sued both platforms, President Biden, and Surgeon General Vivek Murthy for violating his First Amendment right to free speech.58 The post at issue was critical of requiring children to wear masks to prevent the spread of COVID.59
As a part of his claim, Hart argued that restricting his post containing what the site classified as misinformation about COVID-19 amounted to joint government action.60 As evidence of this joint action, Hart’s counsel pointed to a press briefing where White House Press Secretary Jen Psaki stated that senior staff were “in regular touch” with Facebook, Twitter, and other social media sites about information regarding COVID-19 being shared on their platforms and that the Surgeon General’s office was “flagging problematic posts for Facebook that spread disinformation.”61 Hart’s counsel argued that this amounted to government coercion and entanglement.62
The court did not agree and ultimately dismissed the First Amendment claim for lack of evidence of state action.63 In its opinion, the court noted that Hart’s account was flagged months before any statement that was offered as evidence was made. Even so, as the court went on to state, “[a] President’s one-time statement about an industry does not convert into state action all later decisions by actors in that industry that are vaguely in line with the President’s preferences.”64 In handing down another ruling in favor of Twitter, the court joined a number of other courts in this conclusion.65
The Future of Censorship
In all three cases discussed above, the district court held that social media platforms are not state actors. The U.S. Supreme Court, however, has recognized the impending importance of online speech. Twenty years after its decision in Reno v. ACLU, the Court revisited free speech on digital platforms in Packingham v. North Carolina.66 The Packingham Court struck down a North Carolina law that prohibited sex offenders from utilizing any “commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”67
After the lower courts found the law to be content neutral and therefore constitutional, the Supreme Court reversed, finding that although the law was content neutral, it was not narrowly tailored to serve the government’s interest in protecting children.68 In his opinion, Justice Anthony Kennedy stated that cyberspace is among the “most important places . . . for the exchange of views” and that First Amendment precedent had struck down similar broad restrictions on speech.69 He described cyberspace and “social media in particular” as the “‘vast democratic forums of the Internet.’”70
Justice Samuel Alito’s concurrence, however, tempered the majority opinion’s broad strokes. Joined by Chief Justice John Roberts and Justice Clarence Thomas, Alito criticized the majority for its “loose rhetoric.” Justice Alito noted that too readily analogizing “cyberspace” or “social media in particular” with public streets or parks could make it difficult to restrict sites frequented by sex offenders. He urged the Court to proceed cautiously with developing technology, as he did in his concurring opinion involving the sale of violent video games to minors.71
That said, at oral argument, Justice Elena Kagan turned to the increased political influence of speech online noting that “[t]the president now uses Twitter . . . everybody uses Twitter . . . [a]ll 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a . . . crucially important channel of political communication.”72
In line with Justice Kagan’s assessment, data have shown that government actors’ use of social media continues to increase, with 98 percent of U.S. senators posting through their official social media accounts on Twitter in 2020.73 In 2021, 477,586 posts were made on Twitter by members of the U.S. Congress, and almost 300,000 posts were made on Facebook.74
Government involvement in social media, however, has not ended with the mere use of these platforms. In 2012, Senator Joseph Lieberman (D-CT) led an effort to encourage Twitter to block pro-Taliban accounts from their site.75 In April 2018, President Donald Trump signed into law the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA), both of which added an exception to section 230 creating liability for online platforms that do not restrict content related to sex trafficking or to conduct that “promotes or facilitates prostitution.”76
In 2020, President Biden even went as far as proposing the revocation of section 230 altogether.77 This uptick in federal action against social media companies may signal a shift in regulations of these platforms. This shift may prompt more questions surrounding governmental involvement and lead courts to rethink the applicability of the state action doctrine to online sites. This is not the first time people have been rethinking the merits of the state action doctrine.78 Nor is it likely the last. In any case, social networking sites remain private actors for now, but as is common in this digital age, things may change at the speed of a click.
Endnotes
1. Summer Allen, Social Media’s Growing Impact on Our Lives, Am. Psych Assn. (Sept. 20, 2019), https://www.apa.org/members/content/social-media-research.
2. Maeve Duggan & Aaron Smith, The Political Environment on Social Media, Pew Rsch. Ctr.: Internet & Tech. (Oct. 25, 2016), http://www.pewinternet.org/2016/10/25/the-political-environment-on-socialmedia.
3. See, e.g., Allen, supra note 1.
4. See, e.g., Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (holding that a private cable company operating on public access channel was not a state actor).
5. U.S. Const. amend. I.
6. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001).
7. See id. at 295–96.
8. See Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974).
9. 326 U.S. 501 (1945).
10. See Brentwood Acad., 531 U.S. at 295 (“[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.’”).
11. See id. at 352.
12. 139 S. Ct. 1921, 1921 (2019).
13. Id.
14. Id. at 1926–28.
15. Id.
16. Id.
17. Id.
18. Cmty. Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995), aff’d in part, rev’d in part by Denver Area Educ. Telecomms. Consortium v. FCC, 518 U.S. 727 (1996) (where the Supreme Court decided the case on other grounds and did not disturb the appellate court’s finding of no state action).
19. See Halleck, 139 S. Ct. at 1927.
20. Id. at 1928.
21. Id.
22. Id.
23. Id.
24. Id. at 1930.
25. Id.
26. See, e.g., id. at 1934 (majority opinion) (“the point here should not be read too broadly”).
27. E.g., Sydney Shufelt, On Halleck and Why Twitter Is Not a Public Forum, Am. U. Bus. L. Rev. Buzz Blog (Feb. 2019), https://aublr.org/2019/02/on-halleck-and-why-twitter-is-not-a-public-forum/; Graham L. Fisher, Lights, Camera, State Action: Manhattan Community Access Corp. v. Halleck, 2020 Cardozo L. Rev. De Novo 165, 192 (2020); Berin Szóka & Corbin Barthold, Justice Thomas’s Misguided Concurrence on Platform Regulation, Lawfare (Apr. 14, 2021), https://www.lawfareblog.com/justice-thomass-misguided-concurrence-platform-regulation.
28. Halleck, 139 S. Ct. at 1934 (Sotomayor, J., dissenting).
29. Hammerhead Enters. Inc. v. Brezenoff, 707 F.2d 33, 39 (2d Cir. 1983).
30. See, e.g., Genevieve Lakier, Informal Government Coercion and the Problem of “Jawboning,” Lawfare (July 26, 2021), https://www.lawfareblog.com/informal-government-coercion-and-problem-jawboning.
31. Skinner v. Ry. Lab. Execs.’ Ass’n, 489 U.S. 602, 616 (1989).
32. Id. at 633.
33. Huber v. Biden, No. 21-CV-06580-EMC, 2022 WL 827248 (N.D. Cal. Mar. 18, 2022).
34. Id.
35. Id.
36. Id. at 2.
37. Id.
38. Id.
39. Id.
40. Id.
41. Id. at 6–13.
42. Id.
43. Berenson v. Twitter, Inc., No. C 21-09818 WHA, 2022 WL 1289049 (N.D. Cal. Apr. 29, 2022).
44. Id.
45. COVID-19 Misleading Information Policy, Twitter Inc., https://help.twitter.com/en/rules-and-policies/medical-misinformation-policy (last visited July 8, 2022).
46. Berenson, 2022 WL 1289049.
47. Id.
48. Id.
49. Id. at 2.
50. Id.
51. 47 U.S.C. § 230.
52. Berenson, 2022 WL 1289049, at 3.
53. Id. at 4–5.
54. See id.
55. Id.; see, also, Barnes v. Yahoo!, 570 F.3d 1096 (9th Cir. 2009) (section 230 does not provide immunity against a promissory estoppel claim based on an employee’s promise to remove content).
56. See id.
57. Hart v. Facebook Inc., et al., No. 22-cv-00737-CRB, 2022 WL 1427507 (N.D. Cal. May 5, 2022).
58. Id.
59. Id.
60. Id.
61. Id.
62. Id.
63. Id.
64. Id.
65. See, e.g., Eric Goldman, Yet Another Court Says Facebook Isn’t a State Actor—Brock v. Zuckerberg, Tech. & Mktg. Law Blog (June 28, 2021), https://blog.ericgoldman.org/archives/2021/06/yet-another-court-says-facebook-isnt-a-state-actor-brock-v-zuckerberg.htm.
66. 137 S. Ct. 1730 (2017), Reno v. ACLU, 21 U.S. 844 (1997).
67. Packingham, 137 S. Ct. at 1734.
68. Id.
69. Id. at 1735.
70. Id. (quoting Reno, 521 U.S. 844).
71. Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 806 (Alito, J., concurring) (“In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution.”).
72. Transcript of Oral Argument, Packingham v. North Carolina (15-1194), retrieved at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-1194_0861.pdf.
73. S. Dixon, Social Media and Politics in the United States—Statistics & Facts, Statista (June 21, 2022), https://www.statista.com/topics/3723/social-media-and-politics-in-the-united-states.
74. Id.
75. Ben Farmer, Congress Calls on Twitter to Block Taliban, The Telegraph (Dec. 25, 2011), https://www.telegraph.co.uk/technology/twitter/8972884/Congress-calls-on-Twitter-to-block-Taliban.html.
76. 18 U.S.C. § 2421A (2020).
77. Makena Kelly, Joe Biden Wants to Revoke Section 230, The Verge (Jan. 17, 2020), https://www.theverge.com/2020/1/17/21070403/joe-biden-president-election-section-230-communications-decency-act-revoke.
78. See, e.g., Erwin Chemerinsky, Rethinking State Action, 80 N.W. L. Rev. 503 (1985).