Rogan O' Handley v. Shirley Weber ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGAN O’HANDLEY, No. 22-15071
Plaintiff-Appellant,
v. D.C. No. 3:21-cv-
07063-CRB
SHIRLEY WEBER; TWITTER INC.,
a Delaware corporation; NATIONAL
ASSOCIATION OF SECRETARIES
OPINION
OF STATE, a professional nonprofit
organization,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted December 7, 2022
San Francisco, California
Filed March 10, 2023
Before: Susan P. Graber, Evan J. Wallach, * and Paul J.
Watford, Circuit Judges.
Opinion by Judge Watford
*
The Honorable Evan J. Wallach, United States Circuit Judge for the
U.S. Court of Appeals for the Federal Circuit, sitting by designation.
2 O’HANDLEY V. WEBER
SUMMARY **
Civil Rights
The panel affirmed the district court’s order dismissing
plaintiff’s federal constitutional claims and declining to
exercise supplemental jurisdiction over a state law claim in
an action brought pursuant to 42 U.S.C. § 1983 alleging that
the social media company Twitter Inc., and California’s
Secretary of State, Shirley Weber, violated plaintiff’s
constitutional rights by acting in concert to censor his speech
on Twitter’s platform.
Plaintiff alleged 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. Plaintiff further alleged 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.
The panel agreed with the district court’s determination
that Twitter’s interactions with state officials did not
transform the company’s enforcement of its content-
moderation policy into state action. The panel held that
Twitter’s content-moderation decisions did not constitute
state action because (1) Twitter did not exercise a state-
conferred right or enforce a state-imposed rule under the first
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
O’HANDLEY V. WEBER 3
step of the two-step framework set forth in Lugar v.
Edmondson Oil Co., 457 U.S. 922 (1982); and (2) the
interactions between Twitter and the Secretary of State’s
Office of Elections Cybersecurity did not satisfy either the
nexus or the joint action tests under the second step. The
panel concluded that its resolution of this issue was
determinative with respect to plaintiff’s claims under § 1983
because each of those claims required proof of state
action. Plaintiff’s claim under 42 U.S.C. § 1985 also failed
because the test for proving a conspiracy between a private
party and the government to deprive an individual of
constitutional rights under § 1985 tracked the inquiry under
the conspiracy formulation of the joint action test.
The panel held that plaintiff had standing to seek
injunctive relief against Secretary Weber and that, even
though the Secretary was not responsible for Twitter’s
content-moderation decisions, state action existed insofar as
officials in her office flagged plaintiff’s November 12, 2020,
post. Limiting its review to those actions, the panel
nevertheless affirmed the district court’s dismissal of
plaintiff’s federal claims under Federal Rule of Civil
Procedure 12(b)(6) because the Secretary’s office did not
engage in any unconstitutional act.
Having properly dismissed plaintiff’s federal claims
with prejudice, the district court did not abuse its discretion
when it declined to exercise supplemental jurisdiction over
plaintiff’s remaining claim under the California
Constitution.
4 O’HANDLEY V. WEBER
COUNSEL
Karin M. Sweigart (argued) and Harmeet K. Dhillon,
Dhillon Law Group Inc., San Francisco, California; Ronald
D. Coleman, Dhillon Law Group Inc., Newark, New Jersey;
for Plaintiff-Appellant.
Ari Holtzblatt (argued), Patrick J. Carome, and Susan M.
Pelletier, Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C.; Emily Barnet and Rishita Apsani,
Wilmer Cutler Pickering Hale and Dorr LLP, New York,
New York; Felicia H. Ellsworth, Wilmer Cutler Pickering
Hale and Dorr LLP, Boston, Massachusetts; David C.
Marcus, Wilmer Cutler Pickering Hale and Dorr LLP, Los
Angeles, California; Thomas G. Sprankling, Wilmer Cutler
Pickering Hale and Dorr LLP, Palo Alto, California; for
Defendant-Appellee Twitter Inc.
Anna Ferrari (argued), Deputy Attorney General; Paul Stein,
Supervising Deputy Attorney General; Thomas S. Patterson,
Senior Assistant Attorney General; Rob Bonta, Attorney
General of California; Office of the California Attorney
General; San Francisco, California; Melissa Muller,
Certified Law Student, Yale Law School, New Haven,
Connecticut; Andrew Albright, Certified Law Student,
University of California Berkeley Law School, Berkeley,
California; for Defendant-Appellee California Secretary of
State Dr. Shirley N. Weber.
Christine M. Wheatley and Don Willenburg, Gordon Rees
Scully Mansukhani LLP, Oakland, California, for
Defendant-Appellee National Association of Secretaries of
State.
O’HANDLEY V. WEBER 5
David A. Greene and Mukund Rathi, Electronic Frontier
Foundation, San Francisco, California, for Amicus Curiae
Electronic Frontier Foundation.
OPINION
WATFORD, Circuit Judge:
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.
The district court determined that Twitter’s interactions
with state officials did not transform the company’s
enforcement of its content-moderation policy into state
action. We agree with that conclusion and, accordingly,
affirm the dismissal of O’Handley’s federal claims against
Twitter, as each of those claims requires proof either that
Twitter was a state actor or that it conspired with state actors
to deprive O’Handley of his constitutional rights. We also
affirm the dismissal of O’Handley’s claims against Secretary
of State Weber because her office did not violate federal law
6 O’HANDLEY V. WEBER
when it notified Twitter of tweets containing false or
misleading information that potentially violated the
company’s content-moderation policy.
I
At the time of the events giving rise to this lawsuit,
Twitter was a social media company with more than 300
million active users. The company had adopted and was
enforcing a set of policies, called the Twitter Rules,
governing what its users could post on the platform. These
rules were publicly available on the company’s website, and
all Twitter users had to agree to comply with them as a
condition of using the service.
The portion of the Twitter Rules relevant to this appeal—
known as the Civic Integrity Policy—informed users that
they “may not use Twitter’s services for the purpose of
manipulating or interfering in elections or other civic
processes.” This prohibition covered statements that “could
undermine faith in the process itself, such as unverified
information about election rigging, ballot tampering, vote
tallying, or certification of election results.” The Civic
Integrity Policy warned users that Twitter would remove
posts that violated the policy’s terms and that the company
would suspend repeat violators.
Given the large volume of posts on its platform, Twitter
was unable to review every tweet for compliance with its
Civic Integrity Policy. Recognizing this reality, Twitter
created several channels that enabled outside actors to assist
in enforcement of the policy by reporting suspected
violations. For example, ordinary Twitter users could report
violations on the platform by clicking on the “Report Tweet”
icon and selecting the option “[i]t’s misleading about a
political election or other civic event.” A limited number of
O’HANDLEY V. WEBER 7
government agencies and civil society groups also had
access to an expedited review process through what Twitter
called its Partner Support Portal. After an approved partner
flagged a tweet through the Portal, Twitter’s content
moderators reviewed the post and decided whether remedial
action was warranted. Twitter granted Portal access to
election officials in at least 38 States, including California’s
Secretary of State.
In 2018, California formed the Office of Elections
Cybersecurity (OEC) within the Secretary of State’s office
“[t]o monitor and counteract false or misleading information
regarding the electoral process that is published online or on
other platforms and that may suppress voter participation or
cause confusion and disruption of the orderly and secure
administration of elections.” Cal. Elec. Code § 10.5(b)(2).
The OEC has stated that, to fulfill its mission, it prioritizes
“working closely with social media companies to be
proactive so when there’s a source of misinformation, we
can contain it.”
In the aftermath of the 2020 election, the OEC touted that
it had flagged for Facebook and Twitter nearly “300
erroneous or misleading social media posts” and that “98
percent of those posts were promptly removed for violating
the respective social media compan[ies’] community
standards.” Former Secretary of State Alex Padilla similarly
noted that the OEC “worked in partnership with social media
platforms to develop more efficient reporting procedures for
potential misinformation” and that the content the OEC
reported “was promptly reviewed and, in most cases,
removed by the social media platforms.”
O’Handley is one of the Twitter users whose posts the
OEC flagged. As alleged in his complaint, O’Handley is a
8 O’HANDLEY V. WEBER
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/12370
73866578096129 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)
O’HANDLEY V. WEBER 9
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. O’Handley asserts that this
was Twitter’s first disciplinary action against him and that
the company heavily scrutinized his activity on the platform
thereafter.
The increased scrutiny that O’Handley allegedly faced
aligned with a broader change in Twitter’s policy around that
time. In the aftermath of the January 6, 2021, attack on the
U.S. Capitol, the company revamped its Civic Integrity
Policy to “aggressively increase . . . enforcement action”
against “misleading and false information surrounding the
2020 US presidential election.” As part of this reform,
Twitter instituted a five-strike protocol under which it would
impose progressively harsher sanctions with each
subsequent violation of the policy. If a user received a fifth
strike, Twitter would permanently suspend that user’s
account.
Under the terms of this new protocol, Twitter allegedly
issued four additional strikes against O’Handley in early
2021 in response to his repeated posts insinuating that the
2020 presidential election had been rigged. Upon issuing a
fifth strike against O’Handley in late February 2021, Twitter
informed him that his account had been permanently
suspended for “violating the Twitter Rules . . . about
election integrity.”
Four months after his suspension, O’Handley filed this
action against Twitter, Secretary of State Weber in her
official capacity, and several other defendants. Asserting
claims under 42 U.S.C. § 1983, O’Handley alleged that the
defendants violated the First Amendment, as well as the
10 O’HANDLEY V. WEBER
Equal Protection and Due Process Clauses of the Fourteenth
Amendment, by censoring his political speech based on its
content and viewpoint and by removing him from Twitter’s
platform. In addition, he alleged that the defendants
conspired to interfere with the exercise of his First and
Fourteenth Amendment rights in violation of 42 U.S.C.
§ 1985 and that their conduct violated the California
Constitution’s Liberty of Speech Clause. Finally, he
asserted a claim under 42 U.S.C. § 1983 alleging that
California Elections Code § 10.5—the provision defining
the OEC’s mission—is unconstitutionally vague.
The defendants moved to dismiss O’Handley’s action
under Federal Rule of Civil Procedure 12(b)(1) and (b)(6).
The district court granted the motions. With respect to the
claims against Twitter, the court held that the federal
constitutional claims failed as a matter of law because
Twitter is not a state actor and that its interactions with the
OEC did not transform it into a state actor. It also held that
O’Handley had not plausibly alleged that Twitter conspired
with California officials to violate his constitutional rights.
As to Secretary of State Weber, the court concluded that
O’Handley’s federal claims failed for three reasons: (1) he
lacked standing to sue because his injuries were not fairly
traceable to the Secretary’s actions; (2) he failed to plausibly
allege state action; and (3) he failed to allege facts plausibly
stating claims upon which relief could be granted. The
district court dismissed the federal claims against the other
defendants and then declined to exercise supplemental
jurisdiction over the remaining state law claim. Following
entry of final judgment, O’Handley appealed.
On appeal, O’Handley challenges only the dismissal of
his claims against Twitter and Secretary of State Weber. We
O’HANDLEY V. WEBER 11
address the claims against those two defendants in turn,
beginning with Twitter.
II
As a private company, Twitter is not ordinarily subject
to the Constitution’s constraints. See Prager University v.
Google LLC, 951 F.3d 991, 995–99 (9th Cir. 2020).
Determining whether this is one of the exceptional cases in
which a private entity will be treated as a state actor for
constitutional purposes requires us to grapple with the state
action doctrine. This area of the law is far from a “model of
consistency,” Lebron v. National Railroad Passenger Corp.,
513 U.S. 374, 378 (1995) (citation omitted), due in no small
measure to the fact that “[w]hat is fairly attributable [to the
State] is a matter of normative judgment, and the criteria lack
rigid simplicity,” Brentwood Academy v. Tennessee
Secondary School Athletic Association, 531 U.S. 288, 295
(2001). Despite the doctrine’s complexity, this case turns on
the simple fact that 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. Because of that central fact, we hold that Twitter
did not operate as a state actor and therefore did not violate
the Constitution.
We analyze state action under the two-step framework
developed in Lugar v. Edmondson Oil Co., 457 U.S. 922(1982). Under this framework, we first ask whether the
alleged constitutional violation was 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.” Id. at 937. If the answer is yes, we
then ask whether “the party charged with the deprivation [is]
a person who may fairly be said to be a state actor.” Id.12 O’HANDLEY V. WEBER
A
O’Handley’s claims falter at the first step. Twitter did
not exercise a state-created right when it limited access to
O’Handley’s posts or suspended his account. Twitter’s right
to take those actions when enforcing its content-moderation
policy was derived from its user agreement with O’Handley,
not from any right conferred by the State. For that reason,
O’Handley’s attempt to analogize the authority conferred by
California Elections Code § 10.5 to the “procedural scheme”
in Lugar is wholly unpersuasive. Id. at 941. Lugar involved
a prejudgment attachment system, created by state law, that
authorized private parties to sequester disputed property. Id.
Section 10.5, by contrast, does not vest Twitter with any
power and, under the terms of the user agreement to which
O’Handley assented, no conferral of power by the State was
necessary for Twitter to take the actions challenged here. 1
Nor did Twitter enforce a state-imposed rule when it
limited access to O’Handley’s posts and suspended his
account for “violating the Twitter Rules . . . about election
integrity.” As the quoted message that Twitter sent to
O’Handley makes clear, the company acted under the terms
of its own rules, not under any provision of California law.
That Twitter and Facebook allegedly removed 98 percent of
1
The district court determined that Twitter has not only the power to
control the content posted on its platform but also a First Amendment
right to do so. Whether social media companies’ content-moderation
decisions are constitutionally protected exercises of editorial judgment
has divided our sister circuits recently. See NetChoice, LLC v. Attorney
General of Florida, 34 F.4th 1196 (11th Cir. 2022), petition for cert.
docketed, No. 22-277 (U.S. Sept. 23, 2022); NetChoice, LLC v. Paxton,
49 F.4th 439 (5th Cir. 2022), petition for cert. docketed, No. 22-555
(U.S. Dec. 19, 2022). We need not reach that constitutional issue to
resolve this case.
O’HANDLEY V. WEBER 13
the posts flagged by the OEC does not suggest that the
companies ceded control over their content-moderation
decisions to the State and thereby became the government’s
private enforcers. It merely shows that these private and
state actors were generally aligned in their missions to limit
the spread of misleading election information. Such
alignment does not transform private conduct into state
action.
B
Under the original formulation of the Lugar framework,
O’Handley’s failure to satisfy the first step would have been
fatal to his attempt to establish state action. More recent
cases, however, have not been entirely consistent on this
point. We have refused to apply the two-step framework
rigidly, and we have suggested that the first step may be
unnecessary in certain contexts. See Mathis v. Pacific Gas
& Electric Co., 75 F.3d 498, 503 n.3 (9th Cir. 1996)
(evaluating only the second step of the Lugar framework to
determine whether a private party operated as a state actor).
Given this lack of clarity, we address the framework’s
second step for the sake of completeness. Nevertheless, our
analysis of the first step makes it much less likely that
O’Handley can satisfy the second because the two steps are
united in a common inquiry into “whether the defendant has
exercised power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the
authority of state law.” Pasadena Republican Club v.
Western Justice Center, 985 F.3d 1161, 1167 (9th Cir. 2021)
(citation omitted).
The second step of the Lugar framework asks whether
“the party charged with the deprivation [is] a person who
may fairly be said to be a state actor.” Lugar, 457 U.S. at14 O’HANDLEY V. WEBER
937. The Court in Lugar outlined four tests to determine the
answer to that question: (1) the public function test, (2) the
state compulsion test, (3) the nexus test, and (4) the joint
action test. Id. at 939. O’Handley relies only on the nexus
and joint action tests. We conclude that neither is satisfied
here.
Nexus Test. There are two different versions of the nexus
test. The first (and less common) formulation asks whether
there is “pervasive entwinement of public institutions and
public officials in [the private actor’s] composition and
workings.” Brentwood Academy, 531 U.S. at 298. In
applying this version of the test, we look to factors such as
whether the private organization relies on public funding,
whether it is composed mainly of public officials, and
whether those public officials “dominate decision making of
the organization.” Villegas v. Gilroy Garlic Festival
Association, 541 F.3d 950, 955 (9th Cir. 2008) (en banc).
Twitter lacks all of those attributes, so O’Handley cannot
show that Twitter is a state actor under this first version of
the nexus test.
The second version asks whether government officials
have “exercised coercive power or [have] provided such
significant encouragement, either overt or covert, that the
choice must in law be deemed to be that of the State.” Blum
v. Yaretsky, 457 U.S. 991, 1004 (1982). One circumstance
in which this version of the test will be satisfied is when
government officials threaten adverse action to coerce a
private party into performing a particular act. For example,
we had no trouble finding the nexus test satisfied when a
deputy county attorney threatened to prosecute a regional
telephone company if it continued to carry a third party’s
dial-a-message service. See Carlin Communications, Inc. v.
Mountain States Telephone & Telegraph Co., 827 F.2d
O’HANDLEY V. WEBER 15
1291, 1295 (9th Cir. 1987). No equivalent threat by any
government official is present in this case. O’Handley has
alleged that an OEC official flagged one of his tweets and,
at most, requested that Twitter remove the post. This
request, which Twitter was free to ignore, is far from the type
of coercion at issue in Carlin.
This second version of the nexus test can also be satisfied
when certain forms of government encouragement are
present. The critical question becomes whether the
government’s encouragement is so significant that we
should attribute the private party’s choice to the State, out of
recognition that there are instances in which the State’s use
of positive incentives can overwhelm the private party and
essentially compel the party to act in a certain way.
However, nothing of the sort is present here. The OEC
offered Twitter no incentive for taking down the post that it
flagged. Even construing the facts alleged in the light most
favorable to O’Handley, the OEC did nothing more than
make a request with no strings attached. Twitter complied
with the request under the terms of its own content-
moderation policy and using its own independent judgment.2
A similar logic exists in our First Amendment cases. In
deciding whether the government may urge a private party
2
When articulating this version of the nexus test in Blum, 457 U.S. at
1008, the Supreme Court first suggested that government encouragement
will be insufficient for state action purposes if the private party later
makes the challenged decision based on its own independent judgment.
Although we have since clarified that a single act of independent
judgment does not fully insulate a private party from constitutional
liability when the party is otherwise deeply intertwined with the
government, see Rawson v. Recovery Innovations, Inc., 975 F.3d 742,
748–55 (9th Cir. 2020), for reasons described below we also do not see
the high degree of entwinement needed for state action in this case.
16 O’HANDLEY V. WEBER
to remove (or refrain from engaging in) protected speech, we
have drawn a sharp distinction between attempts to convince
and attempts to coerce. Particularly relevant here, we have
held that government officials do not violate the First
Amendment when they request that a private intermediary
not carry a third party’s speech so long as the officials do not
threaten adverse consequences if the intermediary refuses to
comply. See American Family Association v. City & County
of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002);
accord Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir.
2003). This distinction tracks core First Amendment
principles. A private party can find the government’s stated
reasons for making a request persuasive, just as it can be
moved by any other speaker’s message. The First
Amendment does not interfere with this communication so
long as the intermediary is free to disagree with the
government and to make its own independent judgment
about whether to comply with the government’s request.
Like the Tenth Circuit, we see no reason to draw the state
action line in a different place. See VDARE Foundation v.
City of Colorado Springs, 11 F.4th 1151, 1160–68 (10th Cir.
2021) (applying the First Amendment’s dichotomy between
coercion and persuasion to determine that the plaintiff had
not alleged a sufficient nexus for state action).
In this case, O’Handley has not satisfied the nexus test
because he has not alleged facts plausibly suggesting that the
OEC pressured Twitter into taking any action against him.
Even if we accept O’Handley’s allegation that the OEC’s
message was a specific request that Twitter remove his
November 12th post, Twitter’s compliance with that request
was purely optional. With no intimation that Twitter would
suffer adverse consequences if it refused the request (or
receive benefits if it complied), any decision that Twitter
O’HANDLEY V. WEBER 17
took in response was the result of its own independent
judgment in enforcing its Civic Integrity Policy. As was true
under the first step of the Lugar framework, the fact that
Twitter complied with the vast majority of the OEC’s
removal requests is immaterial. Twitter was free to agree
with the OEC’s suggestions—or not. And just as Twitter
could pay greater attention to what a trusted civil society
group had to say, it was equally free to prioritize
communications from state officials in its review process
without being transformed into a state actor.
Joint Action Test. A plaintiff can show joint action either
“by proving the existence of a conspiracy or by showing that
the private party was a willful participant in joint action with
the State or its agents.” Tsao v. Desert Palace, Inc., 698 F.3d
1128, 1140 (9th Cir. 2012) (citation and internal quotation
marks omitted). O’Handley has not alleged facts satisfying
the joint action test under either approach. 3
The conspiracy approach to joint action requires the
plaintiff to show a “meeting of the minds” between the
government and the private party to “violate constitutional
rights.” Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983).
O’Handley’s allegations establish, at most, a meeting of the
minds to promptly address election misinformation, not a
3
We have held that joint action also “exists where the government
affirms, authorizes, encourages, or facilitates unconstitutional conduct
through its involvement with a private party.” Ohno v. Yasuma, 723 F.3d
984, 996 (9th Cir. 2013). This approach to joint action subsumes the
nexus test under its banner. Id. at 995 n.13. Although combining the
two tests makes some sense given that they often bleed together, see
Lugar, 457 U.S. at 937, we analyze them separately here. But to the
extent Ohno provides an alternative path to establishing joint action, our
nexus test analysis applies with equal force.
18 O’HANDLEY V. WEBER
meeting of the minds to violate constitutional rights. There
is nothing wrongful about Twitter’s desire to uphold the
integrity of civic discourse on its platform. Nor is there
anything illicit in seeking support from outside actors,
including government officials, to achieve this goal. A
constitutional problem would arise if Twitter had agreed to
serve as an arm of the government, thereby fulfilling the
State’s censorship goals. As explained above, however,
O’Handley has not plausibly alleged that Twitter removed
his posts to advance the OEC’s purported censorship goals
as opposed to Twitter’s own mission of not allowing users
to leverage its platform to mislead voters.
As to the “willful participant” approach, O’Handley
contends that Twitter willfully participated in the OEC’s
efforts to censor political speech online. He points to former
Secretary of State Padilla’s description of the OEC’s
“partnership with social media platforms” and to Twitter’s
creation of the Partner Support Portal to facilitate input from
“select government and civil society partners.” O’Handley
argues that those allegations of a partnership are sufficient to
survive a motion to dismiss. We disagree.
For purposes of the state action doctrine, “joint action
exists when the state has so far insinuated itself into a
position of interdependence with [the private party] that it
must be recognized as a joint participant in the challenged
activity.” Tsao, 698 F.3d at 1140 (citation and internal
quotation marks omitted). In other words, joint action is
present when the State “significantly involves itself in the
private parties’ actions and decisionmaking” in a “complex
and deeply intertwined process.” Rawson, 975 F.3d at 753.
This test is intentionally demanding and requires a high
degree of cooperation between private parties and state
O’HANDLEY V. WEBER 19
officials to rise to the level of state action. See Franklin v.
Fox, 312 F.3d 423, 445 (9th Cir. 2002).
As the Supreme Court has noted, “examples may be the
best teachers” of what is necessary to meet this demanding
standard given the variety of relevant facts that may lead to
an attribution of state action. Brentwood Academy, 531 U.S.
at 296. In Tsao, there was sufficient joint action when the
Las Vegas police trained private casino security guards and
authorized them to issue citations with the force of law. 698
F.3d at 1140. In Rawson, we held that joint action was
shown when medical professionals who leased property
connected to the State’s psychiatric hospital involuntarily
confined the plaintiff after his arrest, in part based on the
prosecutor’s “heav[y] involve[ment] in the decisionmaking
process.” 975 F.3d at 754.
The allegations in O’Handley’s complaint do not give
rise to a plausible inference of a similar degree of
entwinement between Twitter’s actions and those of state
officials. The only alleged interactions are communications
between the OEC and Twitter in which the OEC flagged for
Twitter’s review posts that potentially violated the
company’s content-moderation policy. The fact that the
OEC engaged in these communications on a repeated basis
through the Partner Support Portal does not alter the
equation, especially because O’Handley alleges only one
such communication regarding him. The Portal offered a
priority pathway for the OEC to supply Twitter with
information, but in every case the company’s employees
decided how to utilize this information based on their own
reading of the flagged posts and their own understanding of
the Twitter Rules.
20 O’HANDLEY V. WEBER
The relationship between Twitter and the OEC more
closely resembles the “consultation and information
sharing” that we held did not rise to the level of joint action
in Mathis, 75 F.3d at 504. In that case, PG&E decided to
exclude one of its employees from its plant after conducting
an undercover investigation in collaboration with a
government narcotics task force. Id. at 501. The suspended
employee then sued PG&E for violating his constitutional
rights under a joint action theory. Id. We rejected his claim
because, even though the task force engaged in consultation
and information sharing during the investigation, the task
force “wasn’t involved in the decision to exclude Mathis
from the plant,” and the plaintiff “brought no evidence
PG&E relied on direct or indirect support of state officials in
making and carrying out its decision to exclude him.” Id. at
504.
The same is true here. The OEC reported to Twitter that
it believed certain posts spread election misinformation, and
Twitter then decided whether to take disciplinary action
under the terms of its Civic Integrity Policy. O’Handley
alleges no facts plausibly suggesting either that the OEC
interjected itself into the company’s internal decisions to
limit access to his tweets and suspend his account or that the
State played any role in drafting Twitter’s Civic Integrity
Policy. As in Mathis, this was an arm’s-length relationship,
and Twitter never took its hands off the wheel.
In sum, we conclude that Twitter’s content-moderation
decisions did not constitute state action because (1) Twitter
did not exercise a state-conferred right or enforce a state-
imposed rule under the first step of the Lugar framework,
and (2) the interactions between Twitter and the OEC do not
satisfy either the nexus or the joint action tests under the
second step. Our resolution of this issue is determinative
O’HANDLEY V. WEBER 21
with respect to O’Handley’s claims under 42 U.S.C. § 1983because each of those claims requires proof of state action.
See Lugar, 457 U.S. at 928. His claim under 42 U.S.C.
§ 1985 also fails because the test for proving a conspiracy
between a private party and the government to deprive an
individual of constitutional rights under § 1985 tracks the
inquiry under the conspiracy formulation of the joint action
test. See Caldeira v. County of Kauai, 866 F.2d 1175, 1181
(9th Cir. 1989). 4
III
The district court dismissed the federal claims against
Secretary of State Weber based on a lack of Article III
standing, the absence of state action, and the failure to state
a viable claim for relief. We conclude that O’Handley has
standing to seek injunctive relief against Secretary Weber
and that, even though the Secretary was not responsible for
Twitter’s content-moderation decisions, state action exists
insofar as officials in her office flagged O’Handley’s
November 12, 2020, post. Limiting our review to those
actions, we nevertheless affirm the district court’s dismissal
of O’Handley’s federal claims under Federal Rule of Civil
Procedure 12(b)(6).
A
To establish Article III standing to sue, a plaintiff must
demonstrate that he “(1) suffered an injury in fact, (2) that is
4
Because we hold that O’Handley did not plausibly allege a meeting of
the minds to violate any constitutional right, we need not decide whether
§ 1985 applies in this context. See Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263, 267–68 (1993) (noting that § 1985 claims must
involve “some racial, or perhaps otherwise class-based, invidiously
discriminatory animus” (citation omitted)).
22 O’HANDLEY V. WEBER
fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
It is clear that O’Handley suffered a concrete injury when
Twitter limited other users’ ability to access his posts and
then later suspended his account. It is less obvious whether
those injuries are traceable to the Secretary of State’s
conduct and whether a court can provide effective injunctive
relief.
As to traceability, the injuries that O’Handley alleges in
his complaint—his inability to communicate with his
followers and pursue his chosen profession as a social media
influencer—resulted from Twitter’s decision to suspend his
account in February 2021. That decision is several steps
removed from the OEC’s flagging of his November 12th
post three months earlier. In the interim, Twitter had
increased its enforcement efforts, implemented a new five-
strike protocol, and assessed four additional strikes against
O’Handley’s account based on other posts that O’Handley
does not allege the OEC had any role in flagging.
Despite the distance between Secretary Weber’s actions
and O’Handley’s alleged injuries, two overriding factors
weigh in favor of concluding that his injuries are fairly
traceable to the Secretary’s actions. First, the traceability
requirement is less demanding than proximate causation, and
thus the “causation chain does not fail solely because there
are several links” or because a single third party’s actions
intervened. Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th
Cir. 2011) (citation and internal quotation marks omitted);
see also Lexmark International, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 134 n.6 (2014). It is
possible to draw a causal line from the OEC’s flagging of the
November 12th post to O’Handley’s suspension from the
O’HANDLEY V. WEBER 23
platform, even if it is one with several twists and turns.
Drawing that line is even easier when we credit, as we must,
O’Handley’s allegation that Twitter had never imposed any
disciplinary action against him until the OEC placed his
account on the company’s radar. Second, O’Handley now
seeks to broaden the conception of his injuries to include the
limitations that Twitter placed on other users’ ability to
access his November 12th post. Those limitations also
represent a concrete injury fairly traceable to the OEC’s
actions.
As to redressability, O’Handley sued Secretary Weber in
her official capacity seeking a permanent injunction stating
that “the Secretary of State and the OEC may not censor
speech.” Until recently, it was doubtful whether this relief
would remedy O’Handley’s alleged injuries because Twitter
had permanently suspended his account, and the requested
injunction would not change that fact. Those doubts
disappeared in December 2022 when Twitter restored his
account. See @DC_Draino, Twitter (Dec. 16, 2022, 10:35
AM),
https://twitter.com/DC_Draino/status/16038210147308011
61?cxt=HHwWkoCwpeWt9cEsAAAA. With the
redressability issue now resolved in O’Handley’s favor, we
conclude that he has standing to seek injunctive relief against
Secretary Weber.
B
We turn next to the state action issue. In accord with our
analysis above, we agree with the district court that Secretary
Weber is not responsible for any of Twitter’s content-
moderation decisions with respect to O’Handley. This fact
precludes O’Handley from bringing his claim against
Secretary Weber under the Due Process Clause for the
24 O’HANDLEY V. WEBER
deprivation of his property or liberty interests as a social
media influencer because that grievance arises solely out of
Twitter’s decisions to limit access to his posts and to suspend
his account. 5 By contrast, our state action analysis does not
preclude O’Handley from challenging the Secretary’s own
conduct in directing the OEC because those acts are, by
definition, acts of the State. Thus, the state action
requirement does not bar O’Handley from proceeding
against the Secretary on his remaining four federal claims:
the conspiracy claim under 42 U.S.C. § 1985, the First
Amendment claim, the Equal Protection Clause claim, and
his void-for-vagueness challenge to California Elections
Code § 10.5. 6
C
Turning to the merits, we affirm the district court’s
dismissal of O’Handley’s claims against Secretary Weber
under Rule 12(b)(6) because he has failed to state a claim on
which relief can be granted.
Conspiracy. The conspiracy claim against Secretary
Weber under 42 U.S.C. § 1985 has the same fatal flaw as the
analogous claim against Twitter. As explained above,
O’Handley has not alleged that Twitter and Secretary Weber
shared a goal of violating his or anyone else’s constitutional
5
To the extent O’Handley claims that Secretary Weber interfered with
his liberty interest in free speech, that claim overlaps entirely with his
First Amendment challenge and fails for the reasons stated below.
6
Although the complaint also alleges that Secretary Weber violated the
California Constitution’s Liberty of Speech Clause, O’Handley now
concedes that he cannot sue the Secretary in her official capacity in
federal court for violating state law. See Pennhurst State School &
Hospital v. Halderman, 465 U.S. 89, 106 (1984).
O’HANDLEY V. WEBER 25
rights. There is no unconstitutional conspiracy without this
shared specific intent. See Caldeira, 866 F.2d at 1181.
First Amendment. O’Handley asserts two theories
supporting his First Amendment claim against Secretary
Weber, one alleging that the OEC abridged his freedom of
speech when the agency pressured Twitter to remove
disfavored content, and the other alleging that the OEC
engaged in impermissible retaliation against his protected
political expression. O’Handley’s allegations fail to state a
viable First Amendment claim under either theory.
The first theory rests on Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963), which held that a State may not compel
an intermediary to censor disfavored speech. Id. at 68–72.
Bantam Books and its progeny draw a line between coercion
and persuasion: The former is unconstitutional intimidation
while the latter is permissible government speech. See
American Family Association, 277 F.3d at 1125. This line
holds even when government officials ask an intermediary
not to carry content they find disagreeable. See id. Here, as
discussed above, the complaint’s allegations do not
plausibly support an inference that the OEC coerced Twitter
into taking action against O’Handley. The OEC
communicated with Twitter through the Partner Support
Portal, which Twitter voluntarily created because it valued
outside actors’ input. Twitter then decided how to respond
to those actors’ recommendations independently, in
conformity with the terms of its own content-moderation
policy.
O’Handley argues that intimidation is implicit when an
agency with regulatory authority requests that a private party
take a particular action. This argument is flawed because the
OEC’s mandate gives it no enforcement power over Twitter.
26 O’HANDLEY V. WEBER
See Cal. Elec. Code § 10.5. Regardless, the existence or
absence of direct regulatory authority is “not necessarily
dispositive.” Okwedy, 333 F.3d at 344. Agencies are
permitted to communicate in a non-threatening manner with
the entities they oversee without creating a constitutional
violation. See, e.g., National Rifle Association of America v.
Vullo, 49 F.4th 700, 714–19 (2d Cir. 2022).
The retaliation-based theory of liability fails as well. To
state a retaliation claim, a plaintiff must show that: “(1) he
engaged in constitutionally protected activity; (2) as a result,
he was subjected to adverse action by the defendant that
would chill a person of ordinary firmness from continuing to
engage in the protected activity; and (3) there was a
substantial causal relationship between the constitutionally
protected activity and the adverse action.” Blair v. Bethel
School District, 608 F.3d 540, 543 (9th Cir. 2010) (footnote
omitted).
O’Handley’s claim falters on the second prong because
he has not alleged that the OEC took any adverse action
against him. “The most familiar adverse actions are
exercise[s] of governmental power that are regulatory,
proscriptive, or compulsory in nature and have the effect of
punishing someone for his or her speech.” Id. at 544(citation and internal quotation marks omitted). Flagging a
post that potentially violates a private company’s content-
moderation policy does not fit this mold. Rather, it is a form
of government speech that we have refused to construe as
“adverse action” because doing so would prevent
government officials from exercising their own First
Amendment rights. See Mulligan v. Nichols, 835 F.3d 983,
988–89 (9th Cir. 2016). California has a strong interest in
expressing its views on the integrity of its electoral process.
The fact that the State chose to counteract what it saw as
O’HANDLEY V. WEBER 27
misinformation about the 2020 election by sharing its views
directly with Twitter rather than by speaking out in public
does not dilute its speech rights or transform permissible
government speech into problematic adverse action. See
Hammerhead Enterprises, Inc. v. Brezenoff, 707 F.2d 33, 39
(2d Cir. 1983).
Equal Protection. O’Handley alleges that Secretary
Weber violated the Fourteenth Amendment’s Equal
Protection Clause because the OEC targeted conservative
commentators for special treatment and did not equally
scrutinize liberal critics of the electoral process. Uneven
enforcement can pose an equal protection issue, see United
States v. Lopez-Flores, 63 F.3d 1468, 1472 (9th Cir. 1995),
but O’Handley has not alleged facts plausibly supporting his
speculation of political bias. He does not name any other
conservative commentators whose speech the OEC
allegedly targeted or identify any “self-identified political
liberals” whose false or misleading tweets the OEC allegedly
declined to flag. A cursory assertion of differential treatment
unsupported by factual allegations is insufficient to state a
claim for relief. See Lindsay v. Bowen, 750 F.3d 1061,
1064–65 (9th Cir. 2014).
Vagueness. Finally, O’Handley alleges that California
Elections Code § 10.5 is void for vagueness because the
statute requires the OEC to “monitor and counteract false or
misleading information regarding the electoral process”
without providing a sufficiently concrete definition of what
the phrase “false or misleading information” means in this
context. Cal. Elec. Code § 10.5(b)(2). A statute is facially
vague when it “fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously
28 O’HANDLEY V. WEBER
discriminatory enforcement.” United States v. Williams, 553
U.S. 285, 304 (2008).
Section 10.5 does not attempt to prohibit anything (and
hence raises no fair notice concerns), and it vests no
government official with enforcement authority that could
be discriminatorily applied. It is merely a statement of the
OEC’s general mission. Similar to many unenforceable
government pronouncements, it is “not amenable to a
vagueness challenge.” Beckles v. United States, 580 U.S.
256, 265 (2017). O’Handley’s as-applied challenge also
fails because Elections Code § 10.5 was never applied
against him. Twitter instead enforced its own Civic Integrity
Policy, as it made clear in all of its communications with
O’Handley.
* * *
We affirm the district court’s dismissal of all federal
claims against Twitter because the company was neither a
state actor nor a co-conspirator with state officials acting
with the shared goal of violating constitutional rights. We
affirm the dismissal of all federal claims against Secretary of
State Weber because her office did not engage in any
unconstitutional acts. Having properly dismissed
O’Handley’s federal claims with prejudice, the district court
did not abuse its discretion when it declined to exercise
supplemental jurisdiction over his remaining claim under the
California Constitution. See Lima v. United States
Department of Education, 947 F.3d 1122, 1128 (9th Cir.
2020).
AFFIRMED.