The Supreme Court denied commentator Rogan O’Handley’s bid last week to appeal a lower court’s decision dismissing his lawsuit that claimed California pressured Twitter to censor his election-related posts.
Mr. O’Handley’s account on Twitter, now called X, had been suspended after he claimed the 2020 presidential election was rigged. California officials flagged his posts as election misinformation. He sued the social media platform and the state in federal court and lost.
The new action by the Supreme Court came after it ruled on June 26 in Murthy v. Missouri that individuals challenging the federal government’s efforts to influence social media platforms lacked legal standing to do so. The court found the individuals couldn’t show they were directly harmed by the government’s outreach to the platforms.
Standing refers to the right of someone to sue in court. The parties must show a strong enough connection to the action to justify their participation in a lawsuit.
After the events that gave rise to Mr. O’Handley’s lawsuit, Elon Musk purchased Twitter in October 2022 and began reforming its moderation policies. The social media platform rebranded as X in July 2023.
Mr. O’Handley, a conservative, is active on X under the handle @DC_Draino. He has 1.5 million followers.
The Supreme Court denied the petition for certiorari, or review, in O’Handley v. Weber in an unsigned order on July 2. Shirley Weber, a Democrat, is California’s secretary of state.
No justices dissented and the court did not explain its decision. At least four of the nine justices must vote to grant a petition for it to advance.
According to Mr. O’Handley’s petition, California’s secretary of state established the Office of Election Cybersecurity (OEC) in 2018 “to 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,” in the words of the California Elections Code.
The state law empowered the OEC to evaluate and “mitigate” information viewed as false or misleading and to work with federal, state, and local agencies, and private organizations to develop recommendations “for changes to state laws, regulations, and policies[.]”
During the 2020 election cycle, the Office of Election Cybersecurity signed a $35 million contract with political consultants hired to identify supposed misinformation, which the OEC then raised with the platforms, the petition stated.
After that election, Ms. Weber’s office issued a report stating that “misinformation identified by our office or voters was promptly reviewed and, in most cases, removed by the social media platforms.”
In the petition, Mr. O’Handley said he had written posts on Twitter “without interference” but things changed when the OEC got involved and “targeted” him, starting in November 2020.
Mr. O’Handley said the OEC first noticed him when he wrote on the platform that every ballot in California should be audited because “election fraud is rampant nationwide and we all know California is one of the culprits.”
Soon after, Twitter labeled the post “disputed,” lowered its visibility, and applied a strike to his account after the OEC designated the post as an “orange level” threat in internal documents and expressed its objection to the post to Twitter, according to the petition.
Before this incident, Mr. O’Handley said Twitter had never disciplined him, but added the OEC’s flagging of his account opened the door to continuing censorship. His account was flagged repeatedly and was suspended indefinitely in February 2021. It took the platform nearly two years to restore his account.
He sued California officials and the platform, claiming they violated his First Amendment rights by censoring him.
A federal district court dismissed the legal complaint, finding he lacked standing to sue. The court also determined that the platform acted independently against Mr. O’Handley in accordance with its own rules, the petition stated.
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld the dismissal. At the same time that court found that Mr. O’Handley had standing to sue because it was “possible to draw a causal line” from the OEC’s action to the suspension of Mr. O’Handley, especially given that he had never been disciplined before the OEC “placed his account on the company’s radar.”
Despite the standing decision, the circuit court found it was not improper for California and the platform to have a voluntary “meeting of the minds” to suppress election misinformation.
“OEC’s mandate gives it no enforcement power over Twitter,” the panel determined. State agencies are allowed “to communicate in a non-threatening manner with the entities they oversee without creating a constitutional violation.”
In his petition, Mr. O’Handley urged the Supreme Court to take up his case “to confirm that there is no social media exception to the First Amendment and to clarify how those doctrines apply.”
In a September 2023 brief, California argued the petition should be dismissed because “an allegation of ‘past exposure to’ the challenged conduct” does not by itself establish standing.
The case would be “a poor vehicle” for review because there is no “present controversy about [Mr. O’Handley’s] ability to communicate with his followers over” the social media platform, the state said.
On July 8, California Department of Justice attorney Mica Moore, who represents Ms. Weber, declined to comment.
The Epoch Times also reached out for comment to Mr. O’Handley’s attorney, Taylor Meehan of Consovoy McCarthy in Arlington, Virginia, and X Corp.’s attorney, Ari Holtzblatt of Wilmer Cutler Pickering Hale and Dorr in Washington.
No replies had been received as of press time.
