Twitter Slams Motion in 9th Cir. Appeal of Social Media Censorship Suit

Twitter has responded to a motion for judicial notice by six plaintiffs, including former President Donald J. Trump, over the platform’s allegedly illegal censorship of their accounts. According to the social media company, the plaintiffs’ request is a procedurally improper end-run around well-established practice that should be denied.

The case dates to July 2021 when Trump and several other individuals who had their accounts deplatformed sued Twitter, Facebook, YouTube, and their leaders over what they perceived to be impermissible censorship. The complaints, initially filed in Florida, were later moved to the Northern District of California at the defendants’ request.

The lawsuits alleged violations of the First Amendment’s free speech protections and that Section 230 of the Communications Decency Act (CDA), which states that online service providers cannot be held responsible for content posted by others, is unconstitutional, in addition to a Florida deceptive trade practices act claim.

In an opinion issued by Judge Edward J. Davila in May, the court rejected the plaintiffs’ theories. The decision first noted that the plaintiffs “are not starting from a position of strength,” as Twitter is a private company and the First Amendment applies only to governmental entities. Judge Davila then held that the complaint was shy of allegations that Twitter acted as a government entity when it closed the plaintiffs’ accounts.

In terms of their claim for declaratory relief as to Section 230 of the CDA, Judge Davila ruled that the plaintiffs lacked standing for failure to allege injury. Their theory, that but for Section 230’s shield, the defendants would not have deplatformed the plaintiffs, was rejected by the court as implausible.

The plaintiffs were granted leave to amend but instead elected to file an appeal with the Ninth Circuit. In last week’s brief, Twitter responded to the plaintiffs’ request for judicial notice of material that it said could have been timely included in the complaint they were given permission to amend. Twitter further contended that given their express decision to forgo amendment, the plaintiffs should not now be allowed to circumvent the process for review by asking the Ninth Circuit to amend their complaint through the vehicle of judicial notice. 

The opposition added that with respect to any information that the plaintiffs were able to obtain only after they decided not to amend their complaint, they could have sought relief through channels set forth through established procedural rules. “This Court should not condone such abuse of the rules of civil procedure and should deny the Moving Plaintiffs’ motion,” Twitter reasoned.

Further, Twitter argued that the documents the plaintiffs seek judicial notice of are improper because they are subject to interpretation. For example, two online articles of “unknown provenance” concern “reactions to information in the public realm about government coercion and suppression of disfavored content.” According to Twitter, such requests “turn[] the mechanism of judicial notice on its head.”

The plaintiffs are represented by John P. Coale, Alex Kozinski, and the Law Office Of Andrei D. Popovici P.C. Twitter and Jack Dorsey are represented by Wilmer Cutler Pickering Hale and Dorr.