In Hart v. Facebook Inc., et al., the United States District Court for the Northern District of California dismissed a social media influencer’s lawsuit against Facebook and Twitter for allegedly violating his First Amendment rights by flagging his posts and suspending his social media accounts. The influencer also sued President Joe Biden and Surgeon General Vivek Murthy in the same action for allegedly colluding with the social media platforms to monitor, flag, suspend and delete his posts.

In Hart, the plaintiff alleged that Facebook and Twitter restricted him from posting to his accounts or flagging his posts after he posted what the platforms considered to be misleading information about COVID-19. The platforms each found the posts at issue to be in violation of their terms of services and policies. Facebook and Twitter each moved to dismiss the complaint for failing to state a claim upon which relief could be granted because there was no state action, a requirement for a First Amendment violation.

The district court agreed that the plaintiff’s claims against the social media platforms were First Amendment claims which required plaintiff to allege “that they engaged in state action.” The court, recognizing that Facebook and Twitter are private entities, cited a Ninth Circuit case which held that “a private entity hosting speech on the Internet is not a state actor” subject to the Constitution.

The district court, however, also recognized that there were two theories of law under which activity by a private actor could constitute state action, but found neither theory applied in Hart.  Rejecting the “joint action test,” the district court found that statements made by President Biden and Surgeon General Murthy did not “so far insinuate[] [themselves]” into Facebook and Twitter such that the social media platforms could be deemed state actors. The court similarly rejected plaintiff’s “government coercion theory” because plaintiff’s allegations were vague and none of his “conclusory allegations came remotely close to coercion.” Thus, the district court found that the First Amendment claims against Facebook and Twitter failed as a matter of law.

Hart, like  Freedom Watch, Inc., et al. v. Google Inc., et al. (which was discussed in the July 29, 2020 Trending Law Blog post), is yet another example of a federal court refusing to declare social media platforms to be state actors for purposes of the First Amendment. Whether the day eventually arrives when a private entity like Facebook or Twitter will be deemed a state actor remains to be seen.

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