O’Handley v. Weber & Twitter

In the past, governments that wanted to suppress ideas censored particular individuals. But modern algorithms have reversed the process: they allow governments to directly censor ideas and thereby silence individuals indirectly. By blacklisting certain words, phrases, or hashtags, governments and social media companies can censor disfavored viewpoints en masse—without ever appearing to target any specific individuals or accounts.

Despite these twenty-first century realities, the Ninth Circuit Court of Appeals is operating under a set of outdated assumptions—and failing to protect First Amendment rights as a result. When someone sues to challenge social-media censorship at the government’s direction, the Ninth Circuit has insisted on evidence that the individual was singled out. That eliminates any possibility of holding state actors accountable for modern censorship—and it means that people who are silenced via algorithm have no right to freedom of speech online.

Petitioner Rogan O’Handley is suing Twitter, arguing that the platform violated his First Amendment rights by suspending his account after a state official flagged one of his posts as “false or misleading.” O’Handley’s story is similar to that of LJC client Justin Hart, whose own Facebook and Twitter posts were censored in response to pressure by the Biden Administration. Today, the Liberty Justice Center filed an amicus brief urging the Court to accept the petitioner’s case and arguing that Twitter’s actions qualify as state-sponsored censorship.

Rather than expecting digital-age petitioners, caught in the wide net cast by an algorithm, to produce proof that they were uniquely targeted and directly silenced as they might have been in days past, the Court should recognize algorithm-based censorship for the threat that it is and defend the First Amendment’s guarantee to free speech.