On Friday, August 25, 2023, America’s Future filed an Amicus brief with the Supreme Court of the United States (SCOTUS) in O’Handley v Weber, California Secretary of State, et al., Dkt. No. 22-1199, a case concerning politically-motivated online censorship effected by a state government agency in violation of the plaintiff’s First Amendment right to speak freely. America’s Future supports the petitioner-appellant’s request for relief and urges the SCOTUS to reverse the lower court’s orders and remand Mr. O’Handley’s case back to the trial court for a full, fair, and complete adjudication on the merits. The SCOTUS public docket of this case is located here. Nine other nonprofit organizations joined our brief.
Arising out of a Ninth Circuit Court of Appeals judgment affirming a lower court’s dismissal of the case, the questions presented to the SCOTUS are, as follows:
- Whether the complaint plausibly alleged that state officials acted under color of state law in violation of the First Amendment when a state agency, which exists to police online speech, singled out Petitioner’s disfavored political speech for Twitter to punish and Twitter complied; and
- Whether the government speech doctrine empowers state officials to tell Twitter to remove political speech that the State deems false or misleading.
In 2018, California established a division of the Secretary of State Office dubbed the “Office of Elections Cybersecurity” (OEC). It was installed “[t]o 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.
Preceding the 2020 election, the OEC leveraged its “powers,” entering into a $35 million contract with consultants who were hired to troll social media platforms, looking for posts with content considered by California government officials to be “misinformation,” an obvious rouse to root out posts consisting of political dissent or viewpoints inconsistent with the state government’s official positions.
The First Amendment of our Constitution states, in part, “Congress shall make no law … abridging the freedom of speech.” The Fourteenth Amendment incorporates our First Amendment rights and all other God-given rights such that limitations applied to the federal government are also applied to state and local governments. Therefore, all governments in America, albeit federal, state, or local, are prohibited from taking action that abridge, suppress, or censor our right to speak freely.
Here, California unlawfully exercised power when it interacted with Twitter to suppress Mr. O’Handley’s speech questioning the 2020 electoral process and identifying rampant nationwide election fraud. And in so doing, it likely violated the constitutional rights of Mr. O’Handley, an attorney and political commentator, for political purposes, under the color of law. As set forth in our brief, we explain.
Using these powers, California pressured Twitter to censor and deplatform Petitioner for five tweets challenging the integrity of recent elections. California claims to be acting based on the highest motives to preserve faith in elections by protecting the public from hearing false and misleading information.
The reality is that government officials censor to protect their power over the People — not to protect the People. In fact, the People would have greater faith in elections if California did not censor criticism about how those elections are being conducted. Censorship is counterproductive, since the act of censorship, once exposed, inspires distrust.
California assumes to itself the power to distinguish between truth and falsity, and to allow truth while censoring falsity — employing a power…that no government may have.
We, at America’s Future urges the SCOTUS to accept Mr. O’Handley’s petition for a writ of certiorari and issue a decision fully favorable to him and to all decent American’s who want to live in freedom and not just exist under tyranny.
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