Case 3:21-cv-08378-JD Document 165 Filed 05/06/22 Page 1 of 17
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`DONALD J. TRUMP, et al.,
`
`Plaintiffs,
`
`v.
`
`TWITTER INC., et al.,
`
`Defendants.
`
`Case No. 21-cv-08378-JD
`
`
`ORDER RE MOTION TO DISMISS
`
`Re: Dkt. No. 138
`
`
`
`
`
`
`
`Former President Donald J. Trump, the American Conservative Union, and five
`
`individuals have sued Twitter, Inc., and Jack Dorsey (together, Twitter), on behalf of themselves
`
`and a putative class of Twitter users who have been “de-platformed” and “censored by
`
`Defendants.” Dkt. No. 21 (AC) ¶¶ 8, 18. Plaintiffs alleged claims under the First Amendment and
`
`Florida state consumer and “social media” statutes, and seek a declaration that Section 230 of the
`
`Communications Decency Act, which states that online service providers like Twitter cannot be
`
`held responsible for content posted by others, is unconstitutional. Id. ¶¶ 168-233. Twitter has
`
`moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 138. The amended
`
`complaint is dismissed.
`
`BACKGROUND
`
`As alleged in the amended complaint, which the Court accepts as true for Rule 12(b)(6)
`
`purposes, see In re Capacitors Antitrust Litigation, 106 F. Supp. 3d 1051, 1060 (N.D. Cal. 2015),
`
`Twitter is the well-known “social networking service that allows its Users to post and interact with
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-08378-JD Document 165 Filed 05/06/22 Page 2 of 17
`
`
`
`each other through short messages known as ‘tweets.’” AC ¶ 28. Dorsey co-founded Twitter in
`
`2006, and the company today hosts more than 500 million tweets posted daily by approximately
`
`340 million users worldwide. Id. ¶¶ 28-29, 36.
`
`Plaintiff Trump opened a Twitter account in May 2009 and was an active user until
`
`January 7, 2021. Id. ¶¶ 43-49, 113. On January 8, 2021, Twitter stated that it had “permanently
`
`suspended” the account “due to the risk of further incitement of violence.” Id. ¶ 114.
`
`The amended complaint alleges that the other named plaintiffs also had their Twitter
`
`accounts treated unfavorably. Linda Cuadros’s account was “permanently banned” in 2020 “due
`
`to a post about vaccines.” Id. ¶ 124. Rafael Barboza’s account was “indefinitely suspended” on
`
`January 8, 2021, “after retweeting President Trump and other conservatives on January 6, 2021.”
`
`Id. ¶ 137. Dominick Latella’s account “was permanently removed from the Defendants’ platform
`
`during the 2018 election cycle” after he “post[ed] positive messages about Republican candidates
`
`and President Trump,” although Latella has a “second account [which] is still active” albeit
`
`“shadow banned.” Id. ¶¶ 142-46. Wayne Allyn Root was “banned permanently by Twitter” after
`
`“multiple occasions where the Defendants censored his account for messages he posted related to
`
`COVID-19 and the 2020 election results.” Id. ¶¶ 152, 155. Dr. Naomi Wolf’s account was
`
`“suspended” for “vaccine misinformation.” Id. ¶¶ 159, 162. The American Conservative Union
`
`“started noticing a reduction in engagement in its content” in 2017, and alleges its “followers were
`
`purged,” dropping from 99,000 followers in June 2020 to 88,000 by January 19, 2021. Id. ¶¶ 128-
`
`29.
`
`In plaintiffs’ view, these account actions were the result of coercion by members of
`
`Congress affiliated with the Democratic Party. Id. ¶¶ 51-64. Plaintiffs quote Senator Mark
`
`Warner (D-VA) as saying on October 28, 2020, that “[w]e can and should have a conversation
`
`about Section 230 -- and the ways in which it has enabled platforms to turn a blind eye as their
`
`platforms are used to . . . enable domestic terrorist groups to organize violence in plain sight.” Id.
`
`¶ 55. Section 230 of the Communications Decency Act is said to have “significantly encouraged
`
`defendants’ censorship of the plaintiff and the putative class members,” id. ¶¶ 65-77, and the
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-08378-JD Document 165 Filed 05/06/22 Page 3 of 17
`
`
`
`amended complaint alleges that defendants “willful[ly] participat[ed] in joint activity with federal
`
`actors to censor plaintiff and the putative class members.” Id. ¶¶ 78-112.
`
`Plaintiffs allege: (1) a violation of the First Amendment to the United States Constitution;
`
`(2) that Section 230 of the Communications Decency Act is unconstitutional; (3) deceptive and
`
`misleading practices in violation of the Florida Deceptive and Unfair Trade Practices Act
`
`(FDUTPA), Florida Statutes § 501.201 et seq.; and (4) a violation of the Stop Social Media
`
`Censorship Act (SSMCA), Florida Statutes § 501.2041. Id. ¶¶ 168-233. In the prayer for relief,
`
`plaintiffs seek, among other things, compensatory and punitive damages, and injunctive and
`
`declaratory relief, including an order for Twitter to “immediately reinstate the Twitter accounts of”
`
`plaintiffs. Id. at 56.
`
`This case was originally filed by plaintiffs in the United States District Court for the
`
`Southern District of Florida, Dkt. No. 1, and transferred to this District on Twitter’s motion, which
`
`was made on the basis of a forum selection clause in Twitter’s Terms of Service. Dkt. No. 87.
`
`The amended complaint, Dkt. No. 21, is the operative complaint. Defendants ask to dismiss all
`
`four of the claims in the AC for failure to plausibly state a claim. Dkt. No. 138.
`
`I.
`
`TWITTER AND THE FIRST AMENDMENT
`
`DISCUSSION
`
`Plaintiffs’ main claim is that defendants have “censor[ed]” plaintiffs’ Twitter accounts in
`
`violation of their right to free speech under the First Amendment to the United States Constitution.
`
`AC ¶¶ 168-87. Plaintiffs are not starting from a position of strength. Twitter is a private
`
`company, and “the First Amendment applies only to governmental abridgements of speech, and
`
`not to alleged abridgements by private companies.” Williby v. Zuckerberg, No. 3:18-cv-06295-JD,
`
`Dkt. No. 19 at 1 (N.D. Cal. June 18, 2019), appeal dismissed as frivolous, No. 19-16306, 2019
`
`WL 11662186 (9th Cir. Nov. 25, 2019); see also Manhattan Cmty. Access Corp. v. Halleck, 139
`
`S. Ct. 1921, 1928 (2019) (“the Free Speech Clause prohibits only governmental abridgement of
`
`speech. The Free Speech Clause does not prohibit private abridgment of speech.”) (emphases in
`
`original).
`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-08378-JD Document 165 Filed 05/06/22 Page 4 of 17
`
`
`
`Plaintiffs’ only hope of stating a First Amendment claim is to plausibly allege that Twitter
`
`was in effect operating as the government under the “state-action doctrine.” This doctrine
`
`provides that, in some situations, “governmental authority may dominate an activity to such an
`
`extent that its participants must be deemed to act with the authority of the government and, as a
`
`result, be subject to constitutional constraints.” Edmonson v. Leesville Concrete Co., 500 U.S.
`
`614, 620 (1991); see also Manhattan Cmty. Access, 139 S. Ct. at 1928. This is not an easy claim
`
`to make, for good reasons. Private entities are presumed to act as such, and maintaining the line
`
`“between the private sphere and the public sphere, with all its attendant constitutional
`
`obligations,” is a matter of great importance, as “[o]ne great object of the Constitution is to permit
`
`citizens to structure their private relations as they choose subject only to the constraints of
`
`statutory or decisional law.” Edmonson, 500 U.S. at 619. “As a matter of substantive
`
`constitutional law the state-action requirement reflects judicial recognition of the fact that ‘most
`
`rights secured by the Constitution are protected only against infringement by governments.’”
`
`Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936 (1982) (citation omitted). “Careful
`
`adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the
`
`reach of federal law and federal judicial power.” Id.
`
`Plaintiffs say that the question of whether they have a First Amendment claim on the basis
`
`of the state action doctrine is a factual matter “ill-suited to a Rule 12(b)(6) motion.” Dkt. No. 145
`
`at 7. Not so. It is certainly true that the ultimate determination of state action is a “necessarily
`
`fact-bound inquiry,” Lugar, 457 U.S. at 939, but that does not relieve plaintiffs of their obligation
`
`under Rule 8 and Rule 12(b)(6) to provide in the complaint enough facts to plausibly allege a
`
`claim against Twitter on the basis of state action. See, e.g., Heineke v. Santa Clara Univ., 965
`
`F.3d 1009, 1015 n.5 (9th Cir. 2020) (“Heineke’s contention that it is inappropriate to dismiss his
`
`§ 1983 constitutional claims at the motion to dismiss stage, is unpersuasive. We have accepted his
`
`allegations as true. Because he has failed to plead any allegations sufficient to support his
`
`argument that SCU acted under color of state law, however, his § 1983 claims must fail as a
`
`matter of law.”). To conclude otherwise, as plaintiffs urge, would fly in the face of the pleading
`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-08378-JD Document 165 Filed 05/06/22 Page 5 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`requirements squarely stated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
`
`v. Iqbal, 556 U.S. 662 (2009).1
`
`The salient question under the state action doctrine is whether “the conduct allegedly
`
`causing the deprivation of a federal right” is “fairly attributable to the State.” Id. at 937; see also
`
`Belgau v. Inslee, 975 F.4th 940, 946 (9th Cir. 2020) (“The state action inquiry boils down to this:
`
`is the challenged conduct that caused the alleged constitutional deprivation ‘fairly attributable’ to
`
`the state?”). The answer is determined by a “two-part approach,” which requires that “the
`
`deprivation must be caused by the exercise of some right or privilege created by the State or by a
`
`rule of conduct imposed by the state or by a person for whom the State is responsible”; and that
`
`“the party charged with the deprivation must be a person who may fairly be said to be a state
`
`actor.” Lugar, 457 U.S. at 937; see also Sutton v. Providence St. Joseph Medical Center, 192 F.3d
`
`826, 835 (9th Cir. 1999). These factors “are not the same,” and they “diverge when the
`
`constitutional claim is directed . . . against a private party.” Lugar, 457 U.S. at 937.
`
`As the parties noted, different formulations of the factors appear in the case law. See, e.g.,
`
`Manhattan Cmty. Access, 139 S. Ct. at 1928; Lugar, 457 U.S. at 939; Dkt. No. 145 at 7-21; Dkt.
`
`No. 147 at 1-6. But “[w]hether these different tests are actually different in operation or simply
`
`different ways of characterizing the necessarily fact-bound inquiry,” Lugar, 457 U.S. at 939, is a
`
`question that the Court need not resolve for present purposes. That is because there is “no specific
`
`formula for defining state action.” Sutton, 192 F.3d at 836 (quotations and citation omitted).
`
`What matters is whether plaintiffs have plausibly alleged facts to “show that there is a sufficiently
`
`close nexus between the State and the challenged action of” the private defendants, such that “the
`
`action of the latter may be fairly treated as that of the State itself.” Id. (quotations and citations
`
`omitted). The specific question the Court must answer here is: have plaintiffs plausibly alleged
`
`
`1 Plaintiffs make the odd assertion that these pleading standards apply only in antitrust conspiracy
`actions. Dkt. No. 145 at 6 n.7. Twombly and Iqbal expressed no such limitation, and their
`standards have been applied to a myriad of Rule 12(b)(6) motions in non-antitrust actions in every
`federal district and circuit court. A scant minute of online research makes this abundantly clear.
`See, e.g., Mendoza v. Amalgamated Transit Union Int’l, 30 F.4th 879, 886 n.1 (9th Cir. 2022)
`(labor and employment case); Hoffman v. Preston, 26 F.4th 1059, 1063 (9th Cir. 2022) (Bivens
`claims).
`
`5
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-08378-JD Document 165 Filed 05/06/22 Page 6 of 17
`
`
`
`that Twitter was behaving as a state actor pursuant to “a governmental policy” when it closed their
`
`accounts? Id. at 835.
`
`This inquiry “must be determined based on the circumstances of each case,” id. at 836, and
`
`the facts alleged in the amended complaint are not nearly enough for plaintiffs to proceed on a
`
`state action theory. To start, the amended complaint does not plausibly show that plaintiffs’
`
`ostensible First Amendment injury was caused by “a rule of conduct imposed by the government.”
`
`id. at 835 (cleaned up); see also Mathis v. Pacific Gas and Elec. Co., 891 F.2d 1429, 1432 (9th
`
`Cir. 1989) (“no state, or federal, action unless” a private entity’s decision is “made on the basis of
`
`some rule of decision for which the State is responsible.”) (quotations and citation omitted). The
`
`amended complaint merely offers a grab-bag of allegations to the effect that some Democratic
`
`members of Congress wanted Mr. Trump, and “the views he espoused,” to be banned from Twitter
`
`because such “content and views” were “contrary to those legislators’ preferred points of view.”
`
`See, e.g., AC ¶¶ 53, 55, 60, 61. But the comments of a handful of elected officials are a far cry
`
`from a “rule of decision for which the State is responsible.” Legislators are perfectly free to
`
`express opinions without being deemed the official voice of “the State.” Government in our
`
`republic of elected representatives would be impossible otherwise. It is also not plausible to
`
`conclude that Twitter or any other listener could discern a clear state rule in such remarks, or even
`
`determine what a legislator’s “preferred views” might be.
`
`The weakness of the state action theory in the amended complaint is further demonstrated
`
`by plaintiffs’ own explanation of why their accounts were closed. Twitter is said to have closed
`
`Mr. Trump’s account because of “the risk of further incitement of violence” and “threats to
`
`physical safety.” Id. ¶¶ 114-15. Twitter closed plaintiff Cuadros’s account “due to a post about
`
`vaccines,” id. ¶ 124, and Dr. Wolf’s account for “vaccine misinformation,” id. ¶ 162. Plaintiff
`
`Barboza’s account was closed “after retweeting President Trump and other conservatives on
`
`January 6, 2021,” id. ¶ 137; plaintiff Latella after he “post[ed] positive messages about Republican
`
`candidates and President Trump,” id. ¶ 142; and plaintiff Root for “messages he posted related to
`
`COVID-19 and the 2020 election results,” id. ¶ 152.
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-08378-JD Document 165 Filed 05/06/22 Page 7 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`If anything, these explanations indicate that Twitter acted in response to factors specific to
`
`each account, and not pursuant to a state rule of decision. These circumstances are not at all
`
`comparable to those in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), as plaintiffs urge. In
`
`that case, which is discussed infra in more detail, a state commission was empowered to compel a
`
`private book distributor from selling or supplying certain books. The amended complaint does not
`
`allege anything like this type of state dictate to Twitter.
`
`The amended complaint also does not plausibly allege that Twitter could fairly be deemed
`
`to be a state actor. Plaintiffs say they have done so by cataloguing “coercive statements” in
`
`paragraph 55 of the amended complaint, and statements made during a March 22, 2021, House
`
`Committee on Energy and Commerce hearing on the topic of “Disinformation Nation: Social
`
`Media’s Role in Promoting Extremism and Misinformation.” See Dkt. No. 145 at 3-4 (quoting
`
`from AC ¶ 55, and Dkt. No. 145-1 (RJN) ¶¶ 2-4).2 These statements are said to have compelled
`
`Twitter to act as a government entity.
`
`They are again not enough for pleading purposes. Paragraph 55 is said to offer “examples
`
`of Democrat legislators threatening new regulations, antitrust breakup, and removal of Section 230
`
`immunity for Defendants and other social media platforms if Twitter did not censor views and
`
`content with which these Members of Congress disagreed.” AC ¶ 55. The actual quotes do not
`
`live up to that billing. The statements attributed to “Bruce Reed, Biden’s Top Tech Advisor,” and
`
`Michelle Obama are of no moment because Reed and Obama were not legislators. Id. at 5th and
`
`12th bullet points. Other statements in Paragraph 55 pertain only to Facebook, and not Twitter.
`
`Id. at 8th, 9th, and 15th bullet points (Senator Markey’s question and Mark Zuckerberg’s answer
`
`regarding Facebook’s algorithms and policies; Rep. Adam Schiff’s Tweet that “Facebook must
`
`ban” Trump). Then-Senator Kamala Harris is quoted three times for calling for “Trump’s Twitter
`
`account [to be] suspended” and calling on Dorsey to “do something about this Tweet” from
`
`Trump, but conspicuously missing is any threatening remark directed to Twitter. Id. at 1st, 6th,
`
`
`2 The proffered statements appear in part only in a request for judicial notice, Dkt. No. 145-1, and
`not in the amended complaint. Twitter did not object to the judicial notice request, and the Court
`has taken those materials into account.
`
`7
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-08378-JD Document 165 Filed 05/06/22 Page 8 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`and 7th bullet points. Five statements are nothing more than general comments about Section 230
`
`(e.g., “We can and should have a conversation about Section 230”) untethered to any substance
`
`that might have conveyed any threat or punishment tied to any specific action by Twitter. Id. at
`
`2nd, 3rd, 4th, 11th, and 13th bullet points. The remaining two statements, at the 10th and 14th
`
`bullet points, express general concerns and criticisms that Twitter has become a “terrifying tool[]
`
`of persuasion and manipulation,” and that “[i]ndustry self-regulation has failed.”
`
`The statements attributed to the “Disinformation Nation” congressional hearing may have
`
`been more heated, but they are still not enough to satisfy plaintiffs’ pleading obligation.
`
`Committee Chairman Frank Pallone, Jr., is quoted as saying, “it is time for Congress and this
`
`Committee to legislate and realign these companies’ incentives to effectively deal with
`
`disinformation and extremism. . . . The time for self-regulation is over. It is time we legislate to
`
`hold you accountable.” Dkt. No. 145 at 4. Representative Mike Doyle said, “Your companies
`
`need to be held accountable . . . and we will legislate to stop this.” Id. Representative Janice D.
`
`Schakowsky said, “What our witnesses need to take away from this hearing is that self-regulation
`
`has come to the end of its road, and that this democratically elected body is prepared to move
`
`forward with legislation and regulation. Misinformation regarding the election dropped by 73%
`
`across social media platforms after Twitter permanently suspended Trump . . . . The question is,
`
`what took so long?” Id.
`
`Even giving plaintiffs every benefit of the doubt, these comments fall short of the mark.
`
`Plaintiffs’ own case citations show why. See Dkt. No. 145 at 7-17. Strictly speaking, not all of
`
`plaintiffs’ cases involve the state action doctrine, as the ensuing discussion makes clear.
`
`Nevertheless, plaintiffs argued the cases to that end, and the Court will take those arguments on
`
`their own terms.
`
`In one of plaintiffs’ main citations, Bantam Books, 372 U.S. 58, the Rhode Island
`
`Legislature established a “Rhode Island Commission to Encourage Morality in Youth” that was
`
`composed of members appointed by the state Governor. Id. at 59-60 & n.1. The Commission was
`
`empowered “to educate the public concerning any book . . . manifestly tending to the corruption of
`
`the youth,” and “to investigate and recommend the prosecution” of all violations of the relevant
`
`8
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-08378-JD Document 165 Filed 05/06/22 Page 9 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`laws. Id. at 59-60. Put more simply, it was tasked with formulating and enforcing a blacklist of
`
`proscribed books. Id. at 68. The Commission sent letters “on official Commission stationery” to a
`
`book distributor listing “certain designated books or magazines distributed by him” that had been
`
`declared by the Commission as “objectionable for sale, distribution or display” to minors. Id. at
`
`61. The notice thanked the distributor in advance “for his ‘cooperation’ with the Commission,
`
`usually reminding [him] of the Commission’s duty to recommend to the Attorney General
`
`prosecution of purveyors of obscenity.” Id. at 62. “Copies of the lists of ‘objectionable’
`
`publications were circulated to the local police departments, and [the distributor] was so informed
`
`in the notices.” Id. at 62-63. “A local police officer usually visited [the distributor] shortly after
`
`[his] receipt of a notice to learn what action he had taken.” Id. at 63.
`
`In a lawsuit brought by the publishers of books supplied to the distributor, the Supreme
`
`Court had no trouble concluding that the acts of the Commission “were performed under color of
`
`state law,” and that the distributor’s “compliance with the Commission’s directives was not
`
`voluntary.” Id. at 68. As the Court stated, “[p]eople do not lightly disregard public officers’
`
`thinly veiled threats to institute criminal proceedings against them if they do not come around, and
`
`[the distributor’s] reaction . . . was no exception to this general rule.” Id. “The Commission’s
`
`notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably
`
`followed up by police visitations, in fact stopped the circulation of the listed publications ex
`
`proprio vigore.” Id. The Court held that the “procedures of the Commission” were
`
`constitutionally deficient, and that “the system of informal censorship disclosed by this record
`
`violates the Fourteenth Amendment.” Id. at 71.
`
`In Lombard v. State of Louisiana, 373 U.S. 267 (1963), the Supreme Court reversed the
`
`state criminal mischief convictions of three black and one white college students who had
`
`participated in a “sit-in demonstration” at a restaurant in New Orleans to promote racial
`
`desegregation. Although it was a private restaurant that had refused service and called the police,
`
`the Court held that “these convictions, commanded as they were by the voice of the State directing
`
`segregated service at the restaurant, cannot stand.” Id. at 274. Prior to the demonstration, the
`
`Superintendent of Police had stated that “such actions are not in the community interest,” and “we
`
`9
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-08378-JD Document 165 Filed 05/06/22 Page 10 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`want everyone to fully understand that the police department and its personnel is ready and able to
`
`enforce the laws of the city of New Orleans and the state of Louisiana.” Id. at 270. In addition,
`
`“four days before petitioners’ arrest, the Mayor of New Orleans issued an unequivocal statement
`
`condemning such conduct and demanding its cessation.” Id. at 271. The Mayor said that “I have
`
`today directed the superintendent of police that no additional sit-in demonstrations will be
`
`permitted regardless of the avowed purpose or intent of the participants,” and “[i]t is my
`
`determination that the community interest, the public safety, and the economic welfare of this city
`
`require that such demonstrations cease and that henceforth they be prohibited by the police
`
`department.” Id. Both statements were well publicized, and there was evidence in the case “to
`
`indicate that the restaurant manager asked petitioners to leave in obedience to the directive of the
`
`city officials.” Id. at 272.
`
`In Carlin Communications, Inc. v. The Mountain States Telephone and Telegraph
`
`Company, 827 F.2d 1291 (9th Cir. 1987), the defendant, a private regional telephone company,
`
`“refuse[d] to carry smut on its dial-a-message network.” Id. at 1292. This happened after a
`
`“deputy attorney of Maricopa County, Arizona, wrote to Mountain Bell threatening to prosecute if
`
`the company continued to provide [dial-a-message network service] to Carlin. The letter stated
`
`that Carlin’s 976 service violated an Arizona statute prohibiting the distribution of sexually
`
`explicit material to minors.” Id. at 1293. “Mountain Bell immediately sent Carlin a notice that its
`
`service would be terminated in five days.” Id. The Ninth Circuit concluded that the termination
`
`decision amounted to state action because the “county attorney’s threat of prosecution provided
`
`the requisite ‘nexus’ between the state and the challenged action.” Id. at 1295. In effect, “Arizona
`
`‘exercised coercive power’ over Mountain Bell and thereby converted its otherwise private
`
`conduct into state action.” Id.
`
`In Mathis v. Pacific Gas and Electric Company, 891 F.2d 1429 (9th Cir. 1989), defendant
`
`PG&E had barred plaintiff Mathis from entering the Diablo Canyon Nuclear Power Plant for work
`
`because “he was suspected of illegal drug use or sales.” Id. at 1430. Mathis argued that this was
`
`state action because “his denial of access by PG&E was directed or encouraged by the [Nuclear
`
`Regulatory Commission (NRC)] pursuant to its Fitness for Duty program.” Id. at 1433. At the
`
`10
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-08378-JD Document 165 Filed 05/06/22 Page 11 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`time, the Fitness for Duty program was only a proposed rule, and the NRC eventually withdrew it
`
`“to encourage the initiatives concerning fitness for duty being taken by the nuclear power
`
`industry,” so long as “the industry programs produce the desired results.” Id. at 1433. The NRC
`
`added that “[i]t is Commission policy that the sale, use, or possession of alcoholic beverages or
`
`illegal drugs within protected areas at nuclear plant sites is unacceptable,” and that the “decision to
`
`use discretion in enforcement to recognize industry initiatives in no way changes the NRC’s
`
`ability to issue orders, call enforcement meetings, or suspend licenses should a significant safety
`
`problem be found.” Id. The NRC also stated that “[a]n acceptable fitness for duty program should
`
`at a minimum include the following essential elements: (1) A provision that the sale, use, or
`
`possession of illegal drugs within the protected area will result in immediate revocation of access
`
`to vital areas and discharge from nuclear power plant activities . . . ; [and] (2) A provision that any
`
`other sale, possession, or use of illegal drugs will result in immediate revocation of access to vital
`
`areas, mandatory rehabilitation prior to reinstatement of access, and possible discharge from
`
`nuclear power plant activities.” Id. In these circumstances, the circuit court concluded that Mathis
`
`had plausibly made out a state action claim because “[t]he minimum standard [wa]s stated by the
`
`NRC, as a minimum acceptable industry plan, backed up by threats of enforcement or of formal
`
`rulemaking.” Id. at 1434.
`
`These cases, which are the centerpieces of plaintiffs’ state action argument, are strikingly
`
`different from the allegations in the amended complaint. In each of the cases, a concrete and
`
`specific government action, or threatened action, was identified. Here, plaintiffs offer only
`
`ambiguous and open-ended statements to the effect that “we may legislate” something unfavorable
`
`to Twitter or the social media sector. This is a world away from: (1) a state commission sending
`
`local police officers for drop-in visits and threatening prosecution by the state attorney general
`
`(Bantam Books); (2) a city mayor and police superintendent threatening law enforcement action to
`
`crack down on sit-in demonstrations (Lombard); (3) a deputy county attorney threatening
`
`prosecution against a private company under a specific law (Carlin); and (4) a federal
`
`administrative commission threatening the suspension of licenses or formal rulemaking if its
`
`specified elements for an anti-drug program were not followed voluntarily (Mathis).
`
`11
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-08378-JD Document 165 Filed 05/06/22 Page 12 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`The fact that enacting a bill is rarely fast or easy further attenuates the plausibility of the
`
`legislative threat plaintiffs speak of. As the process was described in another context,
`
`“[d]issatisfaction . . . is often the cost of legislative compromise. And negotiations surrounding
`
`enactment of this bill tell a typical story of legislative battle among interest groups, Congress, and
`
`the President. Indeed, this legislation failed to ease tensions among many of the interested parties.
`
`Its delicate crafting reflected a compromise amidst highly interested parties attempting to pull the
`
`provisions in different directions. . . . The deals brokered during a Committee markup, on the floor
`
`of the two Houses, during a joint House and Senate Conference, or in negotiations with the
`
`President are not for us to judge or second-guess.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S.
`
`438, 461 (2002) (internal citations omitted). There is no way to allege with any degree of
`
`plausibility when, if ever, the comments voiced by a handful of members of Congress might
`
`become a law, or what changes such a law might impose on social media companies like Twitter.
`
`Plaintiffs also overlook Congress’s role as an investigatory body, and the fact that “each
`
`House has power ‘to secure needed information’ in order to legislate.” Trump v. Mazars USA,
`
`LLP, 140 S. Ct. 2019, 2031 (2020) (citation omitted). This power “encompasses inquiries into the
`
`administration of existing laws, studies of proposed laws, and ‘surveys of defects in our social,
`
`economic or political system for the purpose of enabling the Congress to remedy them.’” Id.
`
`(quotations and citation omitted).
`
`Much of what plaintiffs challenge fits within the normal boundaries of a congressional
`
`investigation, as opposed to threats of punitive state action. Plaintiffs’ own submissions indicate
`
`that the House Committee was making inquiries and surveying possible problems “for the purpose
`
`of enabling the Congress to remedy them.” In this respect, the allegations in the amended
`
`complaint are much more comparable to the cases plaintiffs cited in which no state action was
`
`found. See Hammerhead Enterprises, Inc. v. Brezenoff, 707 F.2d 33 (2d Cir. 1983) (no state
`
`action where Administrator of the Human Resources Administration of New York City wrote
`
`letters “urg[ing]” depart