NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JUSTIN HART, No. 23-15858
Plaintiff-Appellant, D.C. No. 3:22-cv-00737-CRB
v. MEMORANDUM* FACEBOOK, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding
Argued and Submitted February 21, 2024 University of Pacific, McGeorge School of Law Sacramento, California
Before: RAWLINSON and CALLAHAN, Circuit Judges, and ENGLAND,** District Judge. Concurrence by Judge RAWLINSON.
Justin Hart sued Facebook, Twitter (now X Corporation), and certain federal
officials (“the Federal Defendants”) alleging that in 2020 and 2021, Facebook and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Morrison C. England, Jr., Senior United States District Judge for the Eastern District of California, sitting by designation. Twitter, acting in concert with the Federal Defendants, flagged his posts as
misinformation about COVID-19 and suspended or moderated his accounts. Hart
claims this violated his right to free speech under the First Amendment. The
district court dismissed Hart’s case against the private defendants under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim and against the Federal
Defendants under Federal Rule of Civil Procedure 12(b)(1) for lack of standing.
Hart v. Facebook, 2022 WL 1427507 (N.D. Cal. 2022). The district court then
denied Hart’s motion to amend and entered a final judgment.1 Hart v. Facebook,
2023 WL 3362592 (N.D. Cal. 2023). We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
1. We review de novo a dismissal for failure to state a claim pursuant to
Rule 12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040–
41 (9th Cir. 2011). A complaint must plead enough facts to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Dismissal is proper when the complaint does not make out a cognizable legal
1 The district court denied Hart’s motion to amend on the ground of futility finding that his proposed new allegations, like the allegations in the initial complaint, failed to plausibly allege state action. We review such a denial de novo to determine if it is clear that the complaint would not be saved by amendment. Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 893 (9th Cir. 2010). We agree with the district court that Hart’s proposed amended complaint fails to state a plausible claim for the same reasons his original complaint failed. Accordingly, while we have considered Hart’s proposed amended complaint, our de novo review focuses on the reasons behind the orders of dismissal.
2 theory or does not allege sufficient facts to support a cognizable legal theory.
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A
complaint that alleges only “labels and conclusions” or a “formulaic recitation of
the elements of the cause of action” will not survive dismissal. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
As private companies, Twitter and Facebook are not subject to the
Constitution’s constraints. O’Handley v. Weber, 62 F.4th 1145, 1155 (9th Cir.
2023); see also Prager Univ. v. Google LLC, 951 F.3d 991, 995‒99 (9th Cir.
2020). Both assert that they acted pursuant to their own policies in moderating
Hart’s accounts. Nonetheless, there are “exceptional cases in which a private
entity will be treated as a state actor.” O’Handley, 62 F.4th at 1155. To determine
whether a private entity will be treated as a state actor for constitutional purpose
we apply the two-step framework developed in Lugar v. Edmonson Oil Co. Inc.,
457 U.S. 922 (1982). O’Handley, 62 F.4th at 1156. We first ask “whether the
alleged constitutional violation was caused by the ‘exercise of some right or
privilege created by the State or by a rule of conduct imposed by the State or by a
person for whom the State is responsible,’” and “[i]f the answer is yes, we then ask
whether ‘the party charged with the deprivation [is] a person who may fairly be
said to be a state actor.’” Id. (quoting Lugar, 457 U.S. at 937).
The Supreme Court has developed four different tests to assist us in
3 identifying state action by a private person. Pasadena Republican Club v. W. Just.
Center, 985 F.3d 1161, 1167 (9th Cir. 2021). We read Hart’s briefs as only
asserting that Facebook and Twitter engaged in state action under the joint action
theory.2
In O’Handley, we held that the claim faltered at the first step of Lugar’s
two-step framework because “Twitter did not exercise a state-created right when it
limited access to O’Handley’s posts or suspended this account.” 62 F.4th at 1156.
Rather, its “right to take those actions when enforcing its content-moderation
policy was derived from its user agreement with O’Handley, not from any right
conferred by the State.” Id. Hart’s claims similarly falter as Facebook and
Twitter’s rights to moderate his posts arise from their user agreements with Hart,
not from any right conferred by the federal government.
“A plaintiff can show joint action either ‘by proving the existence of a
conspiracy or by showing that the private party was a willful participant in joint
action with the State or its agents.’” O’Handley, 62 F.4th at 1159 (quoting Tsao v.
Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012)).3 To prevail on a claim
2 We recognize that a case raising similar questions of government influence on social media companies is before the Supreme Court. See Murthy v. Missouri, 144 S. Ct. 7 (2023). We agree with the parties that we need not stay consideration of this appeal pending the Supreme Court’s decision in Murthy. 3 Hart does not allege the existence of a conspiracy.
4 of joint action, a “complaining party must also show that ‘there is a sufficiently
close nexus between the State and the challenged action of the regulated entity so
that the action of the latter may be fairly treated as that of the State itself.’” Blum v.
Yretsky, 457 U.S. 991, 1004 (1982) (quoting Jackson v. Metropolitan Edison Co.,
419 U.S. 351 (1974)). “The purpose of this requirement is to assure that
constitutional standards are invoked only when it can be said that the State is
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JUSTIN HART, No. 23-15858
Plaintiff-Appellant, D.C. No. 3:22-cv-00737-CRB
v. MEMORANDUM* FACEBOOK, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding
Argued and Submitted February 21, 2024 University of Pacific, McGeorge School of Law Sacramento, California
Before: RAWLINSON and CALLAHAN, Circuit Judges, and ENGLAND,** District Judge. Concurrence by Judge RAWLINSON.
Justin Hart sued Facebook, Twitter (now X Corporation), and certain federal
officials (“the Federal Defendants”) alleging that in 2020 and 2021, Facebook and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Morrison C. England, Jr., Senior United States District Judge for the Eastern District of California, sitting by designation. Twitter, acting in concert with the Federal Defendants, flagged his posts as
misinformation about COVID-19 and suspended or moderated his accounts. Hart
claims this violated his right to free speech under the First Amendment. The
district court dismissed Hart’s case against the private defendants under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim and against the Federal
Defendants under Federal Rule of Civil Procedure 12(b)(1) for lack of standing.
Hart v. Facebook, 2022 WL 1427507 (N.D. Cal. 2022). The district court then
denied Hart’s motion to amend and entered a final judgment.1 Hart v. Facebook,
2023 WL 3362592 (N.D. Cal. 2023). We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
1. We review de novo a dismissal for failure to state a claim pursuant to
Rule 12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040–
41 (9th Cir. 2011). A complaint must plead enough facts to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Dismissal is proper when the complaint does not make out a cognizable legal
1 The district court denied Hart’s motion to amend on the ground of futility finding that his proposed new allegations, like the allegations in the initial complaint, failed to plausibly allege state action. We review such a denial de novo to determine if it is clear that the complaint would not be saved by amendment. Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 893 (9th Cir. 2010). We agree with the district court that Hart’s proposed amended complaint fails to state a plausible claim for the same reasons his original complaint failed. Accordingly, while we have considered Hart’s proposed amended complaint, our de novo review focuses on the reasons behind the orders of dismissal.
2 theory or does not allege sufficient facts to support a cognizable legal theory.
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A
complaint that alleges only “labels and conclusions” or a “formulaic recitation of
the elements of the cause of action” will not survive dismissal. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
As private companies, Twitter and Facebook are not subject to the
Constitution’s constraints. O’Handley v. Weber, 62 F.4th 1145, 1155 (9th Cir.
2023); see also Prager Univ. v. Google LLC, 951 F.3d 991, 995‒99 (9th Cir.
2020). Both assert that they acted pursuant to their own policies in moderating
Hart’s accounts. Nonetheless, there are “exceptional cases in which a private
entity will be treated as a state actor.” O’Handley, 62 F.4th at 1155. To determine
whether a private entity will be treated as a state actor for constitutional purpose
we apply the two-step framework developed in Lugar v. Edmonson Oil Co. Inc.,
457 U.S. 922 (1982). O’Handley, 62 F.4th at 1156. We first ask “whether the
alleged constitutional violation was caused by the ‘exercise of some right or
privilege created by the State or by a rule of conduct imposed by the State or by a
person for whom the State is responsible,’” and “[i]f the answer is yes, we then ask
whether ‘the party charged with the deprivation [is] a person who may fairly be
said to be a state actor.’” Id. (quoting Lugar, 457 U.S. at 937).
The Supreme Court has developed four different tests to assist us in
3 identifying state action by a private person. Pasadena Republican Club v. W. Just.
Center, 985 F.3d 1161, 1167 (9th Cir. 2021). We read Hart’s briefs as only
asserting that Facebook and Twitter engaged in state action under the joint action
theory.2
In O’Handley, we held that the claim faltered at the first step of Lugar’s
two-step framework because “Twitter did not exercise a state-created right when it
limited access to O’Handley’s posts or suspended this account.” 62 F.4th at 1156.
Rather, its “right to take those actions when enforcing its content-moderation
policy was derived from its user agreement with O’Handley, not from any right
conferred by the State.” Id. Hart’s claims similarly falter as Facebook and
Twitter’s rights to moderate his posts arise from their user agreements with Hart,
not from any right conferred by the federal government.
“A plaintiff can show joint action either ‘by proving the existence of a
conspiracy or by showing that the private party was a willful participant in joint
action with the State or its agents.’” O’Handley, 62 F.4th at 1159 (quoting Tsao v.
Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012)).3 To prevail on a claim
2 We recognize that a case raising similar questions of government influence on social media companies is before the Supreme Court. See Murthy v. Missouri, 144 S. Ct. 7 (2023). We agree with the parties that we need not stay consideration of this appeal pending the Supreme Court’s decision in Murthy. 3 Hart does not allege the existence of a conspiracy.
4 of joint action, a “complaining party must also show that ‘there is a sufficiently
close nexus between the State and the challenged action of the regulated entity so
that the action of the latter may be fairly treated as that of the State itself.’” Blum v.
Yretsky, 457 U.S. 991, 1004 (1982) (quoting Jackson v. Metropolitan Edison Co.,
419 U.S. 351 (1974)). “The purpose of this requirement is to assure that
constitutional standards are invoked only when it can be said that the State is
responsible for the specific conduct of which the plaintiff complains.” Id.
We used the term “willful participant in joint action” in Tsao, F.3d at 1140,
but explained “[u]ltimately, joint action exists when the state has so far insinuated
itself into a position of interdependence with [the private entity] that it must be
recognized as a joint participant in the challenged activity.” Id. (cleaned up). We
further explained in O’Handley that “joint action is present when the State
‘significantly involves itself in the private parties’ action and decisionmaking’ in a
‘complex and deeply intertwined process.’” 62 F.4th at 1159 (quoting Rawson v.
Recovery Innovations, Inc., 975 F.3d 742, 753 (9th Cir. 2020)). We noted that
“[t]he test is intentionally demanding and requires a high degree of cooperation
between private parties and state officials to rise to the level of state action.” Id. at
1159–60.
Hart has not shown that the Federal Defendants are responsible for
Facebook and Twitter’s moderation of his posts. In O’Handley we found no
5 plausible inference of entwinement, noting:
The only alleged interactions are communications between the OEC and Twitter in which the OEC flagged for Twitter’s review posts that potentially violated the company’s content-moderation policy. The fact that the OEC engaged in these communications on a repeated basis through the Partner Support Portal does not alter the equation, especially because O’Handley alleges only one such communication regarding him.
Id. at 1160. Before us, Hart cites only ten interactions between the federal officials
and Facebook and Twitter over a period of five months. Hart was not a subject of
any of the interactions, only five of the interactions were initiated by the Federal
Defendants, and none of the interactions suggest that the federal officials were
attempting to become significantly involved in Facebook and Twitter’s actions.
Rather, the interactions show that the federal officials sought to inform Facebook
and Twitter of what the government considered to be misinformation about
COVID-19. In O’Handley, we held that this type of “consulting and information
sharing” does not rise to the level of joint action. Id. Hart has not made a
plausible claim of joint action.
2. We review de novo the dismissal of the Federal Defendants for lack of
standing. Confederated Tribes and Bands of the Yakama Nation v. Yakima Cnty.,
963 F.3d 982, 988 (9th Cir. 2020). To establish Article III standing to sue, a
plaintiff must demonstrate that he ‘“(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be
6 redressed by a favorable judicial decision.’” O’Handley, 62 F.4th at 1161 (quoting
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). Even assuming that Hart has
shown injury and can meet a lenient definition of traceability, his injury is not
redressable because he has not shown that the Federal Defendants were responsible
for Twitter and Facebook’s actions. Both companies assert that they moderated
Hart’s accounts pursuant to their own policies. Because Hart has not plausibly
alleged that Twitter and Facebook acted at the behest of the Federal Defendants—
as opposed to pursuant to their own policies—he has not shown that a favorable
judicial decision against the Federal Defendants would provide him any relief. The
district court did not err in dismissing Hart’s action against the Federal Defendants
for lack of standing.
3. Finally, Hart asserts that the district court erred in entering judgment in
favor of the Federal Defendants in light of his Freedom of Information Act
(“FOIA”) claim. But Hart stipulated in the district court that he did not intend to
challenge the completeness of the federal officials’ response to his FOIA request or
challenge the redactions made pursuant to the privileges claimed. The district
court, relying on the stipulation, vacated the case management deadlines and the
case management conference. Hart has not shown that any concerns he may have
had as to the response to his FOIA request survive the stipulation and order.
The district court’s dismissal of Hart’s action is AFFIRMED.
7 FILED Hart v. Facebook, Inc., Case No. 23-15858 APR 19 2024 Rawlinson, Circuit Judge, concurring in the result: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I concur in the result.