• by Wendy Davis  @wendyndavis, March 13, 2023

Siding with Twitter, a federal appeals court refused to revive prominent conservative Rogan O'Handley's claims that his First Amendment rights were violated when his account was banned due to tweets regarding the 2020 presidential election.

In a ruling issued late last week, a panel of the 9th Circuit Court of Appeals rejected O'Handley's contention that Twitter was engaged in state action -- meaning acting as an arm of the government -- when it banned O'Handley's account.

“This case turns on the simple fact that Twitter acted in accordance with its own content-moderation policy when it limited other users’ access to O’Handley’s posts and ultimately suspended his account,” Circuit Judge Paul Watford wrote in an opinion joined by judges Susan Graber and Evan Wallach. “Because of that central fact, we hold that Twitter did not operate as a state actor and therefore did not violate the Constitution.”

The decision comes in a lawsuit dating to 2021, when O'Handley, who goes by “dc_draino” on social media, claimed Twitter violated his free speech rights by permanently suspending his account.

(His account, like that of some other prominent conservatives, was restored late last year at the direction of current CEO Elon Musk.)

O'Handley alleged in his lawsuit that Twitter suspended him after repeated tweets about the 2020 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 someone with California's Office of Elections Cybersecurity flagged the post as a potential violation of the company'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 the complaint 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 feedback from a California official.

U.S. District Court Judge Charles Breyer in the Northern District of California dismissed O'Handley's lawsuit last 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 was acting as an arm of the government, writing that Twitter only added a disclaimer to the November 12 tweet after hearing from a government official -- saying that move 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.

O'Handley then appealed to the 9th Circuit, which upheld Breyer's ruling.

The appellate judges said O'Handley's allegations didn't suggest that government officials pressured Twitter into suspending his account.

California's Office of Elections Cybersecurity “reported to Twitter that it believed certain posts spread election misinformation, and Twitter then decided whether to take disciplinary action under the terms of its Civic Integrity Policy,” Watford wrote.

“O’Handley alleges no facts plausibly suggesting either that the [Office of Elections Cybersecurity] interjected itself into the company’s internal decisions to limit access to his tweets and suspend his account or that the state played any role in drafting Twitter’s Civic Integrity Policy.”