• by Wendy Davis  @wendyndavis, April 19, 2024

A federal appellate court has sided with President Joe Biden and tech companies in a battle with face-mask critic Justin Hart, who claims his First Amendment rights were violated when he was suspended from social media platforms over posts relating to COVID-19. 

In an opinion issued Friday, a panel of the 9th Circuit Court of Appeals upheld a district court judge's dismissal of Hart's claim that the account suspensions amounted to unconstitutional censorship.

The appellate judges said Meta's Facebook and X (formerly Twitter) are private companies that aren't generally bound by the First Amendment's prohibition against suppressing speech. The judges added that while a private business can in “exceptional circumstances” be considered a state actor -- meaning equivalent to the government -- those circumstances weren't present in Hart's case.

“Hart has not plausibly alleged that Twitter and Facebook acted at the behest of the federal defendants -- as opposed to pursuant to their own policies,” the judges wrote.

The decision comes in a legal fight dating to September 2021, when Hart sued Meta, X (formerly Twitter), Biden, Surgeon General Vivek Murthy and other federal officials over a series of account suspensions.

One of the suspensions occurred in July 2021, soon after he tweeted: “So the CDC just reported that 70% of those who came down with #COVID19 symptoms had been wearing a mask. We know that masks don't protect you ... but at some point you have to wonder if they are part of the problem.”

Other account suspensions occurred in 2020, when Donald Trump was still president.

U.S. District Court Judge Charles Breyer in the Northern District of California dismissed Hart's complaint in 2022, ruling that his allegations, even if true, wouldn't prove that the tech companies were acting as agents of the government when they suspended him, or that the government coerced the platforms to suspend Hart.

Breyer noted in his decision that Facebook suspended Hart before Biden took office.

“Hart fails to explain how Facebook took joint action with governmental actors from the future,” Breyer wrote.

Hart then appealed to the 9th Circuit, which ruled against him on Friday.

The Supreme Court is currently considering a separate dispute over the federal government's ability to influence social media platforms to remove misinformation.

In that case, the 5th Circuit Court of Appeals issued an injunction that would have prohibited officials from the White House, Surgeon General's office, Federal Bureau of Investigation, Centers for Disease Control, and Cybersecurity and Infrastructure Security Agency from attempting to “coerce” or “significantly encourage” platforms to suppress speech.

The Supreme Court temporarily lifted that injunction last year, and is expected to issue a final decision by July.