[Note: this post does NOT cover the Fifth Circuit’s ruling in Missouri v. Biden, which also addressed government jawboning regarding COVID misinformation. Missouri v. Biden, 2023 WL 5821788 (5th Cir. Sept. 8, 2023). The Fifth Circuit ruled that some government agencies unconstitutionally coerced or encouraged social media services to remove constitutionally protected speech, and it enjoined those agencies from ongoing censorship. The opinion was a major and potentially troubling development in Internet Law, so I planned to blog it. (It’s 74 action-packed pages, which slowed me down because opinions like that take me several hours to blog). While the ruling was pending on my blogging queue, the Supreme Court quickly put the Fifth Circuit ruling on temporary hold via its shadow docket. As a result, I am further delaying my blogging the Fifth Circuit opinion given the increased likelihood of imminent changes to that ruling. Meanwhile, yesterday the Sixth Circuit issued a more typical jawboning opinion, potentially further highlighting how the Fifth Circuit’s outcomes are an outlier. Clearly, this topic is rapidly evolving, and it will almost certainly end up on the Supreme Court’s main docket (not just the shadow docket) soon.]
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Twitter suspended users or deboosted their tweets based on its COVID misinformation policy. The Twitter users sued the Department of Health and Human Services, claiming that the agency’s public and private anti-COVID-misinformation jawboning caused Twitter to take these actions. My prior blog post on the district court ruling.
The court sidesteps the complaint’s merits, resolving the case on standing grounds (lack of traceability).
Specifically, the court says: “Plaintiffs fail to adduce facts demonstrating that the decisions Twitter made when it enforced its own COVID-19 policy did not result from its ‘broad and legitimate discretion’ as an independent company.” In support of this conclusion, the court observes that Twitter adopted, and began enforcing, its COVID misinformation policy before the Biden administration took over. “Thus, many of Twitter’s changes to its own COVID-19 policy and enforcement policy preceded the government actions that purportedly coerced Twitter to censor Plaintiffs.”
The court goes out of its way to signal that the case turned on the weakness of the plaintiffs’ allegations, not its substantive merit. The court says the results may have been different if “additional facts were alleged in the complaint that would allow a conclusion that, under the totality of the circumstances, Twitter’s actions were compelled or coerced by the federal government.” Then, the court adds this lengthy footnote:
This opinion should be understood as dealing only with the particular case before us. The general concerns raised by the appellants here are not phantasmagorical, and on a different set of allegations might survive at the motion-to-dismiss stage. It may be difficult to draw a line between government actions where allegations might survive dismissal under the standard of actions that would “coerce or compel private actors” and those that are simply the policy or political statements of an administration. In some circumstances that question might require determination by a finder of fact.
On the other hand, we should be mindful that throughout history, in the course of ordinary political discourse, our government has made quite clear its displeasure with actions taken by private parties, whether President Kennedy’s pointing out government actions against steel executives because of their economic decisions, or President George Bush’s press secretary telling reporters in the wake of 9/11 that “all Americans … need to watch what they say.” And, of course, the larger and more powerful government becomes, with the ability to affect more and more aspects of private life, the more porous the boundary between government speech and coercion might become.
In Missouri v. Biden, 2023 WL 5821788 (5th Cir. Sept. 8, 2023), these issues were addressed on a more comprehensive scale, not based on actions with respect to discrete individual plaintiffs, as in the case we have before us. We express no opinion as to how these principles that we have laid out in this opinion would apply to different factual allegations.
The plaintiffs can take some comfort knowing that the court didn’t find their concerns “phantasmagorical.” [Jargon note: I found 35 instances of the phrase “phantasmagorical” in Westlaw’s court opinion database.] However, the court didn’t take judicial notice of the Fifth Circuit’s recitation of facts in the Missouri v. Biden case, so that ruling hasn’t yet benefited other plaintiffs with similar situations.
The court opinion glosses over a critical question: exactly what Constitutionally protected rights does Twitter have in this equation? Though Twitter isn’t a litigant in this case, the lawsuit is not simply a battle between government agencies trying to protect public health and COVID misinformation purveyors caught in a web of alleged censorship. Twitter has its own independent editorial discretion that the Constitution also protects. To the extent that the government “coerces” Twitter to change its editorial policy (something that virtually all government actors are keenly interested in, regardless of partisan affiliation), then the government has subverted Twitter’s constitutionally protected rights in addition to any users whose content is affected. But to the extent that the government helps Twitter voluntarily iterate its editorial policies, then the constitution also protects Twitter’s voluntary choices–something that this opinion treats as invisible. In other words, if Twitter voluntarily adopts the policies that the government would seek to compel, the plaintiffs are still SOL. The “traceability” factor implicitly acknowledges Twitter’s independent editorial judgment, but the court’s ruminating footnote suggests that the court isn’t necessarily defending it either.
This opinion is hardly the last word on online jawboning. We may get more insights imminently from the Missouri v. Biden shadow docket resolution.
(Also, the court doesn’t address the editorial changes made by Twitter post-Musk, which has substantial implications for all relevant players).
Case Citation: Changizi v. Department of Health and Human Services, 2023 WL 5965931 (6th Cir. Sept. 14, 2023).
Selected Jawboning Posts
“Twitter Files” Don’t Help Revive Jawboning Case–Hart v. Facebook
Another Jawboning Case Fails in the Ninth Circuit–Kennedy v. Warren
Government Submissions to a Trusted Flagger Program Aren’t Unconstitutional Jawboning–O’Handley v. Weber
Ninth Circuit Easily Rejects Another Jawboning Case–Huber v. Biden
Ninth Circuit Easily Rejects Jawboning Claims Against YouTube–Doe v. Google
Facebook Defeats Jawboning Lawsuit Over COVID Misinformation Removal–Rogalinski v. Meta
COVID Skeptics’ Anti-Jawboning Lawsuit Fails–Changizi v. Department of HHS
Facebook & Twitter Defeat Lawsuit Over Account Terminations of COVID/Mask Skeptic–Hart v. Facebook
Twitter Defeats Trump’s Deplatforming Lawsuit–Trump v. Twitter
Section 230 Survives Yet Another Constitutional Challenge–Huber v. Biden
Another Anti-Vaxxer Jawboning Lawsuit Fails–ICAN v. YouTube
The First Amendment Protects Twitter’s Fact-Checking and Account Suspension Decisions–O’Handley v. Padilla
One More Time: Facebook Isn’t a State Actor–Atkinson v. Facebook
Government Jawboning Doesn’t Turn Internet Services into State Actors–Doe v. Google
Facebook Defeats Lawsuit By Publishers of Vaccine (Mis?)information–Children’s Health Defense v. Facebook
Another Must-Carry Lawsuit Against YouTube Fails–Daniels v Alphabet
Congressional Jawboning of Internet Services Isn’t Actionable–AAPS v. Schiff
Facebook Isn’t a Constructive Public Trust–Cameron Atkinson v. Facebook
Section 230 Ends Demonetized YouTuber’s Lawsuit–Lewis v. Google
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