Dear Matt Taibbi:

Fascinating that so many are insisting in near-identical language there’s nothing odd about FBI, DHS, ODNI etc sending Twitter and other platforms spreadsheets with thousands of “flagged” account names. I’m sure the average real person finds that totally normal, unconcerning.

— Matt Taibbi (@mtaibbi) June 4, 2023

Twitter’s own lawyers say you’re full of shit:

This is pretty funny. In a court filing Twitter lawyers tell judge that all of the Twitter files claims and also the claims of Elom are complete bs. https://t.co/LMrev0Ffij

— Josh Marshall (@joshtpm) June 7, 2023

The new materials do not plausibly suggest that Twitter suspended any of Plaintiffs’ accounts pursuant to any state-created right or rule of conduct. As this Court held, Lugar’s first prong requires a “clear,” government-imposed rule. Dkt. 165 at 6. But, as with Plaintiffs’ Amended Complaint, the new materials contain only a “grab-bag” of communications about varied topics, none establishing a state-imposed rule responsible for Plaintiffs’ challenged content-moderation decisions. The new materials cover topics ranging, for example, from Hunter Biden’s laptop, Pls.’ Exs. A.14 & A.27-A.28, to foreign interference in the 2020 election, Pls.’ Exs. A.13 at, e.g., 35:15-41:4, A.22, A.37, A.38, to techniques used in malware and ransomware attacks, Pls.’ Ex. A.38. As with the allegations in the Amended Complaint, “[i]t is … not plausible to conclude that Twitter or any other listener could discern a clear state rule” from such varied communications. Dkt. 165 at 6. The new materials would not change this Court’s dismissal of Plaintiffs’ First Amendment claims for this reason alone. 

Moreover, a rule of conduct is imposed by the state only if backed by the force of law, as with a statute or regulation. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (regulatory requirements can satisfy Lugar’s first prong). Here, nothing in the new materials suggests any statute or regulation dictating or authorizing Twitter’s content-moderation decisions with respect to Plaintiffs’ accounts. To the contrary, the new materials show that Twitter takes content-moderation actions pursuant to its own rules and policies. As attested to by FBI Agent Elvis Chan, when the FBI reported content to social media companies, they would “alert the social media companies to see if [the content] violated their terms of service,” and the social media companies would then “follow their own policies” regarding what actions to take, if any. Pls.’ Ex. A.13 at 165:9-22 (emphases added); accord id. at 267:19-23, 295:24-296:4. And general calls from the Biden administration for Twitter and other social media companies to “do more” to address alleged misinformation, see Pls.’ Ex. A.47, fail to suggest a state-imposed rule of conduct for the same reasons this Court already held the Amended Complaint’s allegations insufficient: “[T]he comments of a handful of elected officials are a far cry from a ‘rule of decision for which the State is responsible’” and do not impose any “clear rule,” let alone one with the force of law. Dkt. 165 at 6. The new materials thus would not change this Court’s determination that Plaintiffs have not alleged any deprivation caused by a rule of conduct imposed by the State. Later on it goes further: Plaintiffs appear to contend (Pls.’ Ex. 1 at 16-17) that the new materials support an inference of state action in Twitter’s suspension of Trump’s account because they show that certain Twitter employees initially determined that Trump’s January 2021 Tweets (for which his account was ultimately suspended) did not violate Twitter’s policy against inciting violence. But these materials regarding Twitter’s internal deliberations and disagreements show no governmental participation with respect to Plaintiffs’ accounts. See Pls.’ Exs. A.5.5, A-49-53.5 Plaintiffs are also wrong (Ex. 1 at 15-16) that general calls from the Biden administration to address alleged COVID-19 misinformation support a plausible inference of state action in Twitter’s suspensions of Cuadros’s and Root’s accounts simply because they “had their Twitter accounts suspended or revoked due to Covid-19 content.” For one thing, most of the relevant communications date from Spring 2021 or later, after Cuadros and Roots’ suspensions in 2020 and early 2021, respectively, see Pls.’ Ex. A.46-A.47; Am. Compl. ¶¶124, 150. Such communications that “post-date the relevant conduct that allegedly injured Plaintiffs … do not establish [state] action.” Federal Agency of News LLC v. Facebook, Inc., 432 F. Supp. 3d 1107, 1125-26 (N.D. Cal. 2020). Additionally, the new materials contain only general calls on Twitter to “do more” to address COVID-19 misinformation and questions regarding why Twitter had not taken action against certain other accounts (not Plaintiffs’). Pls.’ Exs. A.43-A.48. Such requests to “do more to stop the spread of false or misleading COVID-19 information,” untethered to any specific threat or requirement to take any specific action against Plaintiffs, is “permissible persuasion” and not state action. Kennedy v. Warren, 66 F.4th 1199, 1205, 1207-12 (9th Cir. 2023). As this Court previously held, government actors are free to “urg[e]” private parties to take certain actions or “criticize” others without giving rise to state action. Dkt. 165 at 12-13. Because that is the most that the new materials suggest with respect to Cuadros and Root, the new materials would not change this Court’s dismissal of their claims.

And to go directly to the point in the first tweet above: 

The new materials do not evince coercion because they contain no threat of government sanction premised on Twitter’s failure to suspend Plaintiffs’ accounts. As this Court already held, coercion requires “a concrete and specific government action, or threatened action” for failure to comply with a governmental dictate. Dkt. 165 at 11. Even calls from legislators to “do something” about Plaintiffs’ Tweets (specifically, Mr. Trump’s) do not suggest coercion absent “any threatening remark directed to Twitter.” Id. at 7. The Ninth Circuit has since affirmed the same basic conclusion, holding in O’Handley that “government officials do not violate the First Amendment when they request that a private intermediary not carry a third party’s speech so long as the officials do not threaten adverse consequences if the intermediary refuses to comply.” 62 F.4th at 1158. Like the Amended Complaint, the new materials show, at most, attempts by the government to persuade and not any threat of punitive action, and thus would not alter the Court’s dismissal of Plaintiffs’ First Amendment claims. 

FBI Officials. None of the FBI’s communications with Twitter cited by Plaintiffs evince coercion because they do not contain a specific government demand to remove content—let alone one backed by the threat of government sanction. Instead, the new materials show that the agency issued general updates about their efforts to combat foreign interference in the 2020 election. For example, one FBI email notified Twitter that the agency issued a “joint advisory” on recent ransomware tactics, and another explained that the Treasury department seized domains used by foreign actors to orchestrate a “disinformation campaign.” Pls.’ Ex. A.38. These informational updates cannot be coercive because they merely convey information; there is no specific government demand to do anything—let alone one backed by government sanction. 

So too with respect to the cited FBI emails flagging specific Tweets. The emails were phrased in advisory terms, flagging accounts they believed may violate Twitter’s policies—and Twitter employees received them as such, independently reviewing the flagged Tweets. See, e.g., Pls.’ Exs. A.30 (“The FBI San Francisco Emergency Operations Center sent us the attached report of 207 Tweets they believe may be in violation of our policies.”), A.31, A.40. None even requested—let alone commanded—Twitter to take down any content. And none threatened retaliatory action if Twitter did not remove the flagged Tweets. As in O’Handley, therefore, the FBI’s “flags” cannot amount to coercion because there was “no intimation that Twitter would suffer adverse consequences if it refused.” 62 F.4th at 1158. What is more, unlike O’Handley, not one of the cited communications contains a request to take any action whatsoever with respect to any of Plaintiffs’ accounts.

Again, that’s Twitter’s own lawyers, not the ignorant and paranoid rantings of Elmo or Taibbi. Taibbi can object that he prefers his definition of “coercion” to the legal one presented here. But beyond the legal elements mentioned is the bedrock issue of coercion and government action.

I had an uncle who was built like a linebacker. He was a gentle, sweet man but he could look at you with a menace that could be intimidating. Unless you knew him, and knew he was acting. Like the “big government” of Tabbi’s terrors, my uncle was big; but without some threat, some effort to back up his mock intimidation, there was no coercion. He liked to frown menacingly at his nieces and nephews (we were legion, because there were so many of us); but he never followed up with any threats behind the glare, so we were never intimidated. Delighted, mostly, because he was the youngest uncle, and had the greatest sense of fun.

Coercion requires a bit more than just coming from the government. Especially if you aren’t an individual but rather a company with in-house lawyers who handle government requests and communications as a matter of course. When I worked for a law firm I quickly learned to tell people I called that my call didn’t mean they were in trouble or needed a lawyer. If I contacted a company, I usually wound up talking to their lawyers: in-house or a firm. They were not in the least even disturbed.

The average person might be concerned. International internet platforms are hardly “the average person.”

Taibbi has a child’s understanding, if he has any understanding at all, of how companies deal with government agencies. It’s not at all like he imagines.