The Daily Caller

Censorship Case Involving State Collusion With Social Media Companies Could Be Heard By The Supreme Court

July 22, 2023

(The Daily Caller)—The Supreme Court could hear a case questioning a California agency’s coordination with Twitter to censor election-related “misinformation.”

O’Handley v. Weber, which concerns the California Secretary of State’s Office of Election Cybersecurity’s work with Twitter to monitor “false or misleading” election information, was appealed to the Supreme Court on June 8. The case raises questions similar to those posed in the free speech lawsuit Missouri v. Biden, now being appealed in the Fifth Circuit: Can the government lawfully induce private actors to censor protected speech?

The plaintiff, former entertainment lawyer and current conservative political commentator Rogan O’Handley, was allegedly censored and later suspended by Twitter after California’s Office of Election Cybersecurity, created in 2018 to “monitor and counteract false or misleading information regarding the electoral process” online, flagged his account over a post calling for an audit of California ballots due to “rampant” 2020 election fraud, according to court documents. The Ninth Circuit sided with California in March, finding the state “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 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,” the Ninth Circuit found.

Center for American Liberty Associate Litigation Counsel Eric Sell, one of O’Handley’s lawyers, told the Daily Caller News Foundation they “disagree with both the factual characterization that the Ninth Circuit adopted of what actually is happening here and the court’s legal analysis.”

“State officials crossed constitutional lines here, discriminating on the basis of viewpoint and then claiming their own speech warranted more protection than that of private citizens,” they wrote in their petition to the Supreme Court. “But the courts below gave the State a free pass.”

O’Handley’s petition asks the Court to consider two key questions, whether a state can “establish an agency whose purpose it is to single out speech it disfavors for private companies to censor” and whether it can “then evade First Amendment scrutiny by proclaiming it was merely engaging in its own government speech.”

While O’Handley v. Weber involves claims against a state government, not the federal government as in Missouri v. Biden, these issues at hand are “very much related,” Sell said.

“If the Supreme Court were to take up O’Handley, it would potentially serve as guidepost for the lower court’s decision, or it could [become] precedent that the Court would consider if it decided to take up Missouri v. Biden down the road,” Sell told the DCNF.

Documents obtained through the Missouri v. Biden lawsuit revealed that a number of federal agencies had communicated with social media companies to induce them to censor certain viewpoints. Western District of Louisiana Judge Terry A. Doughty wrote that the evidence produced “depicts an almost dystopian scenario” showing the government assumed “a role similar to an Orwellian ‘Ministry of Truth’” during COVID-19.

Doughty issued an injunction on July 4 barring federal officials from communicating with social media platforms for the purposes of censoring protected speech, which was temporarily blocked through an administrative stay by the Fifth Circuit last week.

Sell told the DCNF they are waiting to hear if the Supreme Court will order California and Twitter to respond to their petition, which may not happen until after the Court’s summer recess. Amicus briefs were filed in support of O’Handley earlier this week by the Liberty Justice Center and The Buckeye Institute.

The Supreme Court has already agreed to take two other cases relating to the First Amendment and social media, Garnier v. O’Connor-Ratcliff and Lindke v. Freed, which both consider whether a public official can block constituents on social media.

“We think the court is very interested in these questions,” Sell said. “The First Amendment and social media [are] very important. It’s something that affects most people’s lives on a regular basis.”