O'Handley v. Padilla

• Citation: 579 F.Supp.3d 1163
• Decision Date: 10 January 2022
• Docket Number: Case No. 21-cv-07063-CRB
• Parties: Rogan O'HANDLEY, Plaintiff, v. Alex PADILLA, et al., Defendants.
• Court: U.S. District Court — Northern District of California

579 F.Supp.3d 1163

Rogan O'HANDLEY, Plaintiff,

v.Alex PADILLA, et al., Defendants.

Case No. 21-cv-07063-CRB

United States District Court, N.D. California.

Signed January 10, 2022

Harmeet Dhillon, Karin Moore Sweigart, Dhillon Law Group Inc., San Francisco, CA, Gregory Richard Michael, Michael Yamamoto LLP, Berkeley, CA, Joshua Wallace Dixon, Pro Hac Vice, Mark Trammell, Pro Hac Vice, Center for American Liberty, Frederick, MD, Ronald D. Coleman, Pro Hac Vice, Dhillon Law Group Inc., Newark, NJ, for Plaintiff.

Anna Theresa Ferrari, California Department of Justice, San Francisco, CA, for Defendants Alex Padilla, Paula Valle Castaon, Jenna Dresner, Sam Mahood, Akilah Jones, Shirley N. Weber.

Bruce V. Spiva, Brian G. Svoboda, Pro Hac Vice, Bruce Van Spiva, Stephanie Irene Command, Pro Hac Vice, Perkins Coie LLP, Lalitha D. Madduri, Elias Law Group, Washington, DC, Danielle Serbin, Perkins Coie, Losa Angeles, CA, Torryn Marie Taylor, Perkins Coie LLP, San Francsico, CA, for Defendant SKDKnickerbocker, LLC.

Ari Holtzblatt, Patrick J. Carome, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, David C. Marcus, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, CA, Felicia Ellsworth, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, Maurice Werter Trevor, Cooley LLP, San Francisco, CA, Thomas G. Sprankling, Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, CA, for Defendant Twitter Inc.

Christine Marie Wheatley, Don Willenburg, Gordon Rees Scully Mansukhani, Oakland, CA, for Defendant National Association of Secretaries of State.

ORDER GRANTING MOTIONS TO DISMISS

CHARLES R. BREYER, United States District Judge Plaintiff Rogan O'Handley believes that he is the victim of a conspiracy to censor conservative voices surrounding the 2020 Presidential Election. See generally Compl. (dkt. 1). After Twitter appended labels to several of O'Handley’s tweets and then permanently suspended his Twitter account, O'Handley brought suit against Twitter, as well as three other sets of defendants with whom he contends Twitter conspired: State defendants (Dr. Shirley Weber, in her official capacity as California Secretary of State, Jenna Dresner, Akilah Jones, Sam Mahood, Paula Valle, and former Secretary of State Alex Padilla); a private contractor, SKDKnickerbocker ("SKDK"); and the National Association of Secretaries of State ("NASS"). Id. Each of those four sets of defendants has now brought a motion to dismiss, and Twitter has brought a Motion to Strike Count II of the Complaint under California's anti-SLAPP statute.¹ See generally Twitter MTD (dkt. 60); State MTD (dkt. 59); SKDK MTD (dkt. 57); NASS MTD (dkt. 58); Twitter Anti-SLAPP (dkt. 61). The Court held a motion hearing on December 16, 2021. See Motion Hearing (dkt. 85). As discussed below, the Court GRANTS the motions to dismiss, and does not reach the anti-SLAPP motion.

I. BACKGROUND²

A. Parties and Actions Leading Up to Enforcement Action

1. O'Handley

O'Handley, an attorney licensed to practice in California, makes his living as a political commentator. Compl. ¶ 9. He alleges that he "left private practice in order to better utilize his legal education in defense of liberty and constitutional ideals." Id. ¶ 70. He posts on social media, speaks at colleges and political conferences, and comments on television. Id. O'Handley’s social media handle is "DC_Draino"; in the lead-up to the 2020 election, DC_Draino had 420,000 Twitter followers. Id. ¶¶ 69, 71.

2. Twitter

Twitter is a social media platform with roughly 330 million monthly active users. Id. ¶ 17. Twitter has content-moderation policies called the Twitter Rules that are designed, among other things, to minimize the reach of harmful and misleading information. See Twitter, The Twitter Rules, https://help.twitter.com/en/rules-and-policies/twitter-rules.³ The rules are publicly available on Twitter's website. Id. In the User Agreement, to which individuals agree as a condition of using Twitter, Twitter reserves the right to remove content that violates the Twitter Rules. See Twitter, Twitter Terms of Service, https://twitter.com/en/tos/previous/version 15 ("By using the Services you agree to be bound by these Terms"; "We reserve the right to remove Content that violates the User Agreement").

The relevant content-moderation policy in this case is the Civic Integrity Policy, which prohibits the posting of "false or misleading information intended to undermine public confidence in an election or other civic process." See Civic Integrity Policy (1/12/21); Civic Integrity Policy (11/12/20); Civic Integrity Policy (5/27/20).⁴ That policy begins by explaining that "The public conversation occurring on Twitter is never more important than during elections" and that "attempts to undermine the integrity of our service is antithetical to our fundamental rights and undermines the core tenets of freedom of expression, the value upon which our company is based." Sprankling Decl. Ex. C (dkt. 60-4). It explains how to report violations of the Civic Integrity Policy, and states that Twitter will "work with select government and civil society partners ... to provide additional channels for reporting and expedited review." Id.

One of the mechanisms for reporting suspected violations of the Twitter Rules is the Partner Support Portal. Compl. Ex. 2. The Portal was a priority pathway for persons and entities that Twitter believed had an interest in promoting civic processes "to flag concerns directly to Twitter," including "technical issues ... and content on the platform that ... may violate our policies." Id. Twitter granted access to the Portal to election officials from at least 38 states, including California. Compl. Ex. 3.

The Civic Integrity Policy of October 2020 defines what does and does not violate it, and states that Twitter will "label or remove false or misleading information intended to undermine public confidence in an election or other civic process." Sprankling Decl. Ex. D (dkt. 60-5). It explains that "[i]n circumstances where we do not remove content which violates this policy, we may provide additional context on Tweets," which "means we may ... Apply a label and/or warning message to the content where it appears in the Twitter product," or "Provide a link to additional explanations or clarifications ...," among other options. Id. It adds that "[f]or severe or repeated violations of this policy, accounts will be permanently suspended." Id.

On January 12, 2021, following the Capitol insurrection on January 6, 2021, Twitter announced that it had again updated its Civic Integrity Policy to "aggressively increase ... enforcement action" in light of "misleading and false information surrounding the 2020 US presidential election [that] has been the basis for incitement to violence around the country." Sprankling Decl. Ex. E (dkt. 60-6). Twitter continued: "Ahead of the inauguration, we'll continue to monitor the situation, keep open lines of communication with law enforcement, and keep the public informed of additional enforcement actions." Id. Twitter instituted a five-strike enforcement protocol, pursuant to which enforcement actions became more severe as an account holder continued to violate the policy, progressing from no account-level action for one strike to permanent suspension for five or more strikes. See Sprankling Decl. Ex. F (dkt. 60-7); see also Compl. ¶ 78.

Twitter analyzes the reports it receives through the Portal: it determines that some of the reported tweets violate its Rules, and others do not. While O'Handley contends that Twitter complied with the State defendants’ requests to remove content 98% of the time, see Opp'n to State MTD (dkt. 68) at 1 ("98% of the [Office of Election Cybersecurity (‘OEC’)] reported posts were ‘promptly removed’ "), the underlying materials are less clear. An excerpted OEC IDEAS award application in the Complaint allegedly stated that "The [OEC] discovered nearly 300 erroneous or misleading social media posts that were identified and forwarded to Facebook and Twitter to review and 98 percent of those posts were promptly removed for violating the respective social media company's community standards."). Compl. ¶ 64 (emphasis added). On the other hand, an OEC spreadsheet attached to the Complaint (involving content from Citizen, Facebook, Instagram, and Twitter) reflects that Twitter took no action on OEC-reported content in about one-third of the instances of alleged misinformation covered by that exhibit. See Compl. Ex. 9 (numerous entries listing "No Action Taken").

3. State Defendants

In 2018, in response to concerns about election interference in the 2016 presidential election, the California Legislature established the OEC within the Secretary of State's office to monitor and respond to potential interference with election security and integrity. 2018 Cal. Stat. c. 241, § 1. OEC is "[t]o monitor and counteract false or misleading information regarding the electoral process that is published online or on other platforms and that may suppress voter participation or cause confusion and disruption of the orderly and secure administration of elections." Cal. Elec. Code § 10.5(b)(2). The statute directed OEC to undertake three functions: (1) "assess ... false or misleading information regarding the electoral process"; (2) "mitigate the false or misleading information"; and (3) "educate voters ... with valid information from election officials such as a county elections official or the Secretary of State." Id.

Padilla was the Secretary of State at the time of O'Handley’s alleged injury. Compl. ¶ 10. Padilla authorized the contract with SKDK, discussed below, and, per the Complaint, "oversaw the efforts to take down disfavored speech." Id. The Complaint alleges that Padilla "was reportedly already under consideration to fill then Vice-Presidential candidate Kamala Harris's California seat" if the Biden/Harris ticket prevailed, and therefore "stood to personally benefit...