Petitions of the week

Once-suspended Twitter user argues California violated his First Amendment rights

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Last week the federal government encouraged the justices to review a pair of petitions involving two nearly identical laws in Florida and Texas that seek to regulate how large social media platforms can block, remove, or demonetize user content. Lawmakers in both states passed the bills to address what they perceive as censorship of conservative viewpoints; the platforms countered that the laws violate their own First Amendment rights. This week, we highlight cert petitions that ask the court to consider, among other things, a First Amendment challenge against efforts by another populous state, California, to regulate online content.

In 2018, California established an Office of Election Cybersecurity to combat misinformation posted online about voting and the electoral process. Overseen by California’s secretary of state, the office works closely with social media companies to identify posts about elections that might violate the platforms’ own guidelines on misinformation.

Although the ultimate decision about whether to remove content rests with the platforms, the state’s designation has overwhelmingly proven decisive. During the 2020 election cycle, for example, 98% of the nearly 300 posts that the Office of Election Cybersecurity had flagged as potential misinformation for Facebook and Twitter were removed.

Rogan O’Handley is an attorney and active political commentator on Twitter under the handle @DC_Draino. A week after the 2020 election, he posted a tweet calling for ballots in California to be audited. “Election fraud is rampant nationwide,” he wrote, “and we all know California is one of the culprits[.] Do it to protect the integrity of that state’s elections[.]” The Office of Election Cybersecurity flagged the message for Twitter, which added a warning to the tweet that O’Handley’s claim was disputed and issued a “strike” against his account.

In February 2021, Twitter suspended O’Handley’s account after issuing four additional strikes against him under more stringent content-moderation policies instituted following the Jan. 6, 2021, attack on the U.S Capitol. (O’Handley’s account was reactivated this year.)

Four months after his account was suspended, O’Handley filed a lawsuit against Twitter and California Secretary of State Shirley Weber. O’Handley argued that Twitter and California had acted in tandem to restrict his First Amendment rights.

A federal district court in California dismissed the claims, and the U.S. Court of Appeals for the 9th Circuit upheld that decision. The court of appeals ruled that although “it is possible to draw a causal line from the OEC’s flagging of the November 12th post to O’Handley’s suspension,” there was no “state action” for O’Handley to challenge under the First Amendment. California certainly exercised governmental authority when it flagged O’Handley’s tweet, the 9th Circuit reasoned, but it took no explicit action restricting his speech. And although Twitter did limit O’Handley’s speech, the court explained, it was following its own rules, rather than acting on the state’s behalf.

In O’Handley v. Weber, O’Handley asks the justices to grant review and reverse the 9th Circuit’s decision. O’Handley argues that the distinction between California’s flagging of his tweet and Twitter’s disciplinary response is illusory: Twitter had never monitored his content before it was flagged by the Office of Election Cybersecurity, he contends, and it would not have subjected him to greater scrutiny had the state not brought attention to his account. He urges the court to reinstate his lawsuit so he can introduce further evidence that California exercises coercive authority over online content.

A list of this week’s featured petitions is below:

O’Handley v. Weber
22-1199
Issues: (1) Whether the complaint plausibly alleged that state officials acted under color of state law in violation of the First Amendment when a state agency, which exists to police online speech, singled out petitioner’s disfavored political speech for Twitter to punish and Twitter complied; and (2) whether the government speech doctrine empowers state officials to tell Twitter to remove political speech that the state deems false or misleading.

Argent Trust Company v. Harrison
23-30
Issue: Whether a participant in a plan governed by the Employee Retirement Income Security Act who asserts statutory claims under that statute can be compelled, pursuant to a binding arbitration provision, to submit his claims to individual arbitration.

Pye v. Emmons
23-31
Issues: (1) Whether the U.S. Court of Appeals for the 11th Circuit’s novel construction of 28 U.S.C. § 2254(d)— under which a state prisoner is ineligible for federal habeas relief even when the state court has “unreasonabl[y]” rejected his claim so long as the federal court can provide some reasonable “justification” for the state court’s “reason” for denying relief — is inconsistent with the statutory text and in direct conflict with this court’s decision in Wilson v. Sellers; and (2) whether 28 U.S.C. § 2254(e)(1) applies when a state prisoner seeks federal habeas relief solely on the state-court evidentiary record.