• by Wendy Davis  @wendyndavis, July 26, 2022

Twitter is urging a federal appellate court to refuse to revive a lawsuit by prominent conservative Rogan O'Handley, who alleged the company violated the First Amendment by banning him due to tweets regarding the 2020 presidential election.

“O’Handley attempts to transform the Constitution’s shield against government overreach into a sword to override those private rights, targeting defendant Twitter’s First-Amendment-protected editorial decisions to restrict or remove misleading and false election information from the Twitter platform,” the company argues in papers filed this week with the 9th Circuit Court of Appeals.

The company's papers come in a battle dating to last year, when O'Handley, who goes by the name “dc_draino” on social media, claimed Twitter violated his free speech rights by permanently suspending his account.

O'Handley alleged that he was banned in February of 2021, after repeated tweets about the presidential election.

One of the tweets, posted on November 12, 2020, included the claim “election fraud is rampant nationwide and we all know California is one of the culprits.”

Twitter allegedly added a disclaimer to that tweet after a California state official flagged it as a potential violation of Twitter's content policies.

O'Handley's subsequent tweets referred to the country being “stolen,” and to being “captives under a government we didn't elect.”

He claimed in a January 2021 lawsuit that Twitter conspired with California state officials to suspend his account, based on the allegation that Twitter didn't add a disclaimer to the November 12 tweet until after receiving a complaint by a California official.

U.S. District Court Judge Charles Breyer in the Northern District of California dismissed O'Handley's lawsuit earlier this year, on the grounds that the First Amendment only prohibits censorship by the government, not private companies such as Twitter.

Breyer specifically rejected O'Handley's argument that Twitter should be considered a “state actor” -- meaning equivalent to the government. The judge said in his ruling that the allegations regarding the November 12 tweet, even if proven true, wouldn't show that Twitter and the government were working together.

“One party supplying information to another party does not amount to joint action,” Breyer wrote.

In May, O'Handley appealed to the 9th Circuit, arguing that the allegations in his complaint, if proven true, could have supported his claim that “the state exercised sufficient power over Twitter to infer the presence of state action.”

Twitter this week asked the appellate judges to reject O'Handley's argument.

“A private company is not transformed into a state actor, and thus constitutionally compelled to disseminate third-party speech that it considers harmful, merely because a government official suggests to that company that someone is potentially violating the company’s own, independently formulated rules,” the tech company argues. “Were that the law, huge swaths of private activity would be rendered unconstitutional simply because a private actor receives information from a government official and then acts, in part, based on that information.”

O'Handley is expected to respond to Twitter's argument next month.

O'Handley isn't the only one seeking to sue Twitter over an account ban. Others, including former President Donald Trump, have also sued the tech company over its content decisions.

U.S. District Judge James Donato in the Northern District of California dismissed Trump's claims in May, ruling that only the government is bound by the First Amendment's prohibition on censorship.

Trump has filed the paperwork to appeal Donato's ruling to the 9th Circuit, but hasn't yet made substantive arguments to that court.