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Jess Miers 🦝 Profile picture
@jess_miers
May 15 • 22 tweets • 8 min read Twitter logo Read on Twitter
Major apologies to my boss today for spending most of the work day on Twitter.

Here's a thread of cases rejecting the "indisputable fact" that websites are state actors. 🧵
But first HUGE S/O to @ericgoldman who continues to meticulously report on these cases.

You can also find the 60+ cases we rounded up, many of which invoke state actor claims, in our paper here: papers.ssrn.com/sol3/papers.cf…
Hart v. Facebook Inc., 2023

Held: A President’s one-time statement about an industry does not convert into state action all later decisions by actors in that industry that are vaguely in line with the President’s preferences.

blog.ericgoldman.org/archives/2022/…
Trump v. Twitter, Inc., 2022 U.S. Dist.

Held: the comments of a handful of elected officials are a far cry from a “rule of decision for which the State is responsible.”

blog.ericgoldman.org/archives/2022/…
Kennedy v. Warren, No. 22-35457 (9th Cir. May 4, 2023)

Held: We conclude that the plaintiffs have not raised a serious question as to whether Senator Warren’s letter constituted an unlawful threat in violation of the First Amendment.

blog.ericgoldman.org/archives/2023/…
Huber v. Biden, 2022 WL 17818543 (9th Cir. Dec. 20, 2022)

Held: Contrary to Huber’s argument, the two media reports on which she draws do not plausibly show that Twitter agreed to suspend her account on the government’s behalf.

blog.ericgoldman.org/archives/2022/…
Doe v. Google LLC, 2021 WL 4864418 (N.D. Cal. Oct. 19, 2021)

Held: Plaintiffs can point to no authority to support a compulsion theory of state action based on penalties, particularly “threats” as speculative as the ones they point to here.

blog.ericgoldman.org/archives/2021/…
Atkinson v. Facebook Inc., 20-cv-05546-RS (N.D. Cal. Dec. 7, 2020)

Held: Atkinson pleads no specific facts about which members pressured Facebook, how they did so, or any causal connection between the alleged pressure and Facebook’s actions.

blog.ericgoldman.org/archives/2020/…
Belknap v. Alphabet, Inc., 2020 WL 7049088 (D. Ore. Dec. 1, 2020)

Held: Neither Alphabet, nor its subsidiaries, Google and YouTube, are state actors.

blog.ericgoldman.org/archives/2020/…
Lewis v. Google LLC, 2020 WL 2745253 (N.D. Cal. May 21, 2020)

Held: Section 230 does not violate the First Amendment.

blog.ericgoldman.org/archives/2020/…
Hall v. Twitter, Inc., 2023 DNH 054 (D.N.H. May 9, 2023)

Held: As Twitter argues, it is a private company, not a government or state actor, and Hall has not shown that the state action doctrine would apply in the circumstances of this case.

blog.ericgoldman.org/archives/2023/…
Craft v. Musk, 2023 WL 2918739 (N.D. Cal. April 12, 2023)

Held: Action temporarily blocking Plaintiff’s account by Twitter, which is a private company, and its CEO, Elon Musk, is not government action.

blog.ericgoldman.org/archives/2023/…
Hall v. Meta, Inc., 2022 WL 18109625 (W.D. Ark. Dec. 14, 2022)

Held: Facebook cannot to be deemed to be a state actor when it applied its own “community standards” when placing a temporary ban on Hall’s account.

blog.ericgoldman.org/archives/2023/…
Prager U. v. Google LLC, 2022 WL 17414495 (Cal. App. Ct. Dec. 5, 2022)

Held: Despite YouTube’s ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment.

blog.ericgoldman.org/archives/2020/…
Rutenberg v. Twitter Inc., No. 21-16074 (9th Cir. May 18, 2022).

Held: it would be ‘ironic’ to conclude that Twitter’s imposition of sanctions against a public official—sanctions the official ‘steadfastly opposed’—is state action.”

blog.ericgoldman.org/archives/2022/…
Sescey v. YouTube, 2021 WL 5399916 (E.D. Pa. Nov. 18, 2021).

Held: None of Sescey’s allegations support an inference that Defendants are anything other than a privately-run social media company and its internal legal department.

blog.ericgoldman.org/archives/2021/…
Perez v. LinkedIn Corp., 2021 WL 5399885 (9th Cir. Nov. 18, 2021).

Held: see Prager.

blog.ericgoldman.org/archives/2021/…
Newman v. Google LLC, 2021 WL 2633423 (N.D. Cal. June 25, 2021).

Held: see Prager.

blog.ericgoldman.org/archives/2021/…
Brock v. Zuckerberg, 2021 U.S. Dist. LEXIS 119021 (S.D.N.Y. June 25, 2021).

Held: it is ‘not enough’ that the relevant function is something that a government has ‘exercised.

Also, see Prager.

blog.ericgoldman.org/archives/2021/…
Divino Group LLC v. Google LLC, 2021 WL 51715 (N.D. Cal. Jan. 6, 2021).

Held: YouTube is not a government-regulated entity charged with providing public broadcasting services.

blog.ericgoldman.org/archives/2021/…
Wilson v. Twitter, 2020 WL 3256820 (S.D. W.V. June 16, 2020).

Held: Twitter is a private entity and is not subject to the state-action doctrine.

blog.ericgoldman.org/archives/2020/…
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More from @jess_miers

Jess Miers 🦝 Profile picture
May 15
Same tired response from the same tired pro-censorship playbook: if you can't beat them on substance, try personal attacks.

Look, if you don't have the expertise to debate 1A jurisprudence, it's okay. You can just say that.
BTW the whole incident with Candeub started when he decisively stated that it's an "indisputable fact" that websites are state actors.

As soon as I began saying that no court has ever held this in the history of these jawboning suits, he cut me off and wouldn't let me continue.
and because he wouldn't let me get a word in on this point and because the moderator had to step in to shut him down, I dropped the point and proceeded with my next points.
Read 5 tweets
Jess Miers 🦝 Profile picture
May 14
Let's talk about this.

I won't name / shame the co-panelist here, but I'll note that he's notorious for this kind of behavior, especially towards women.

I was super anxious about this panel, which is not the norm for me these day, b/c of this individual.
Here's the thing.

Women on the conference beat are held to higher standards than everyone else. If we raise our voices, we're aggressive. If our tone is a little too sharp, we're bitchy. If we stumble over our words or don't have quick enough responses, we're out of our depth.
We are constantly under scrutiny, from the way we look to the way we speak to the tiniest of expressions we may make.

Not only that but depending on the makeup of the panel (i.e. majority male), we have to fight just to get a word in...but not too much so as to appear rude.
Read 13 tweets
Jess Miers 🦝 Profile picture
May 12
I had the wonderful opportunity to join @UNL_NGTC and @GusHurwitz for a discussion on content regulation.

I focused primarily on the recent state efforts to curb the First Amendment rights of online publishers and users. The following was my opening statement:
Good morning and thank you for hosting us today to discuss the state of technology law and policy. I'm Jess Miers, legal advocacy counsel at Chamber of Progress, a left-of-center trade association that approaches technology policy from a progressive lens.
Today, I'm here to discuss the Age Appropriate Design Code (AADC), a law that originated in the UK, was successfully enacted in California last year, and has now spread like a plague throughout the US.
Read 33 tweets
Jess Miers 🦝 Profile picture
Mar 9
I'm listening to the Broadband Breakfast summit today (you can too for $9 👇). Tweeting sporadically.
broadbandbreakfast.com/big-tech-speec…
Happening now: PANEL 1: THE BIG PICTURE FOR BIG TECH

Amy Peikoff (Parler legal / policy): notes a need for "separation" between state and Internet companies.
Amy comments on the problem of jawboning. "The governments put pressure on these platforms and the platforms comply."

Suggestion here being that states need to pull themselves out of the tech discourse.
Read 35 tweets
Jess Miers 🦝 Profile picture
Mar 9
Hello -- I interrupt the past two weeks of ranting about SCOTUS and #Section230 to bring you this *really freaking important* piece of legal scholarship by @ericgoldman.

This article pissed me off and I hope it pisses you off too. Welcome to Jess after dark🧵
What if told you that there's an emerging popular litigation scheme that involves throwing as many defendants into a complaint as a Plaintiff can think of regardless of cause, jurisdiction, or the basic rules of civil procedure?

(we're talking like hundreds of defendants)
What if I told you that those same plaintiffs don't typically incur additional costs for this throw-defendants-at-the-wall scheme?
Read 12 tweets
Jess Miers 🦝 Profile picture
Mar 8
You can tune in for the "Platform Accountability: Gonzalez and Reform" #Section230 hearing here at 2pm ET / 11am PT. I'll be live-tweeting (for as long as I can stand it...).

judiciary.senate.gov/committee-acti…
Hearing just started. Here we go....
Sen. Blumenthal out the gate: "reform is coming to Section 230."
Read 26 tweets

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