PASADENA, Calif. (CN) — Former President Donald Trump's bid to sue X, the platform formerly known as Twitter, for violating his free speech rights appeared to gain little ground before the Ninth Circuit Court of Appeals.
Trump claims it was a First Amendment breach when the social media juggernaut suspended his account in the wake of the Jan. 6, 2021 attack on the Capitol.
A three-judge panel, which included one jurist Trump himself appointed, showed little enthusiasm for the notion that X had been acting as an agent for the federal government when it banned Trump because Democratic lawmakers had supposedly threatened to revoke or amend Section 230 of the Communications Decency Act, which shields social media platforms and other websites from liability for the content that users post on them.
At a hearing Wednesday, Senior U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, questioned Alex Kozinski, the attorney for Trump and the other plaintiffs, who is himself a former Chief Judge of the Ninth Circuit. He asked about the plausibility that comments by a handful of senators and representatives amounted to government coercion of a private company, which would be a prerequisite of the purported First Amendment violation.
"That is a very, very small group of Congress," Bybee said. "Why do statements of, let's say, four senators at a committee hearing all of a sudden commit all of the power of the federal government to create state action here?"
Trump and a group of other plaintiffs sued then-Twitter and its then-CEO Jack Dorsey in a class action lawsuit after their accounts were suspended for posting false and misleading information about the Covid-19 pandemic and the 2020 presidential election, among other reasons. The case was initially filed in Florida but was removed to California federal court per Twitter's user agreement.
U.S. District Judge James Donato in San Francisco threw out the case last year, noting First Amendment protection applies only to government abridgment of free speech — and finding the claim that Twitter somehow acted as an agent of the government was based on a "grab-bag of allegations" that some Democratic members of Congress wanted Trump banned from the site.
"All we have to do is show that this is a plausible allegation," Kozinski said at Wednesday's hearing. "We have to have made a case that is plausible, that is not crazy. We're not saying that the moon is made out of cheese, we're not saying that gravity doesn't exist or that the earth is flat."
Also, the case hadn't been mooted by Trump's reinstatement on X, which was rebranded under Elon Musk's ownership, Kozinski argued, because there are still two plaintiffs in the lawsuit whose accounts haven't been restored.
Perhaps a minute ray of hope for Trump's case was offered by his own appointee, U.S. Circuit Judge Mark Bennett, who pointed to his concurrence in a recent ruling on an appeal by Robert F. Kennedy Jr., in a lawsuit over a public letter from Senator Elizabeth Warren to Amazon urging the online retailer not to direct shoppers to a book titled "The Truth about Covid-19."
In his concurrence Bennett was more open than the other judges to the argument that Warren's letter could be construed as a coercion rather persuasion.
Two other issues raised at the hearing could complicate the appellate court's findings.
One was X's choice-of-law decisions, wherein one Florida state law claim had to be litigated under California law — but another claim under Florida’s Stop Social Media Censorship Act didn't. This, Bybee observed, appeared manipulative.
In addition, the constitutionality of Florida’s Stop Social Media Censorship Act is now before the U.S. Supreme Court after it was enjoined by a federal judge. This raised the question, Bennett said, of whether the appellate court should wait until the Supreme Court has made its decision on whether that law could be applied in the case before them.
The third judge on the panel was U.S. Circuit Judge Roopali Desai, a Joe Biden appointee.
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