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Ninth Circuit:
Suit Against Twitter for Banning Trump Properly Dismissed
Panel Says Action Under §1983 Could Not Be Maintained Because the Social Networking Service Is Not a State Actor
By a MetNews Staff Writer
A California lawyer who supports former President Donald Trump and was outside the Capitol Building on Jan. 6, 2021, when it was stormed has failed to state a claim upon which relief can be granted in suing Twitter over barring Trump from tweeting.
Twitter first undertook to moderate the then-president’s messages, then acted to ban them.
In a memorandum opinion, a three-judge panel—comprised of Circuit Judges William A. Fletcher and M. Margaret McKeown, joined by District Court Judge Kathryn H. Vratil of the District of Kansas, sitting by designation—affirmed the dismissal with prejudice of Redwood City lawyer Maria Drozdova Rutenburg’s complaint.
Rutenburg’s Allegations
The lawyer brought her lawsuit under 42 U.S.C. §1983 which creates a cause of action against state or local officers, acting under color of authority, for “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. The plaintiff alleged a denial of her rights under the First and Fourteenth Amendments,” explaining in her complaint, filed by San Mateo attorney Mark L. Javitch:
“This case is not about the free speech of Former President Trump—this case is about the free speech rights of Plaintiff Maria Rutenburg and millions of people around the country who have a First Amendment right to view, discuss, debate, comment, reply and respond to Former President Trump’s tweets.”
Noting that about tweets in Trump’s account were deleted, the complaint says that “[i]n doing so, Defendants arbitrarily prevented Plaintiff and the public from the ability to view and search through the former president’s tweets.”
Rights Invoked
The pleading goes on to say (with paragraph numbering omitted):
“The interactive space where the public may comment on the former president’s tweets is a designated public forum.
“Plaintiff had a First Amendment right to view, comment, retweet. quote, and like the former president’s tweets.
“Plaintiff had a Fourteenth Amendment right to due process before her ability to comment was arbitrarily removed in a designated public forum.
“Defendants were granted authority by the former president under color of law when they functionally accepted the position to administer the interactive space surrounding former president’s tweets.
“However, Defendants were political opponents of the former president’s and could not resist taking biased action.”
Rutenburg maintained that Twitter “abused their authority under color of law.”
District Court Decisions
In ordering dismissal, on April 9, 2021, District Court Judge Yvonne Gonzalez Rogers of the Northern District of California wrote:
“Despite her arguments to the contrary, Twitter is not, in fact, a state actor for purposes of Section 1983, and therefore cannot be held liable for an alleged deprivation of a federal right.”
She added:
“Rutenburg conflates decisions finding that former President Trump’s usage of Twitter is a public forum, constraining his ability to summarily block critics, and impermissibly attempts to extend this underlying logic to Twitter. This fails where Twitter is not a state actor, and is not exercising any sovereign state authority….Rutenburg otherwise fails to cite to a single case where a Court has found a private non-state actor liable under Section 1983 for alleged violations of constitutional rights in similar circumstances.”
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Ninth Circuit’s Opinion
The Ninth Circuit agreed with Rogers’ reasoning (though rejecting her ground for dismissal—lack subject matter jurisdiction, instead finding a failure to state a claim.) The panel declared (misspelling the appellant’s name):
“Rutenberg offers insufficient facts to infer the ‘close nexus’ between Twitter’s conduct on the one hand and the government on the other, which is required to find that Twitter’s conduct constituted state action….To the contrary, Rutenberg acknowledges that Twitter exercised its own ‘discretion and authority’ in moderating President Trump’s account, and that Twitter acted as President Trump’s ‘opponent’ in doing so. Twitter was not a ‘willful participant’ in any ‘joint activity’ with the President, and its conduct was not state action.”
While Rutenburg contended that Twitter abused authority that had been delegated to it, the panel said:
“Indeed, it would be ‘ironic’ to conclude that Twitter’s imposition of sanctions against a public official—sanctions the official ‘steadfastly opposed’—is state action.”
The case is Rutenburg v. Twitter, 21-16074.
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Attorney Maria Rutenburg is seen with Los Angeles attorney Eric Early, a candidate for state attorney general. |
Twitter’s Rationale
In closing down Trump’s account on Friday, Jan. 8, 2021, Twitter explained:
“After close review of recent Tweets from the @realDonaldTrump account and the context around them—specifically how they are being received and interpreted on and off Twitter—we have permanently suspended the account due to the risk of further incitement of violence.
“In the context of horrific events this week, we made it clear on Wednesday that additional violations of the Twitter Rules would potentially result in this very course of action.”
Rutenburg’s complaint attacks Twitter’s rationale, pointing to Jan. 6 tweets by Trump urging peaceful conduct, such as this one:
In 2020, the Redwood City’s city council authorized the painting of “Black Lives Matter” in large yellow letters on a street—then ordered the message deleted after Rutenburg insisted that if such messages were permitted, she wanted to paint one in support of Trump’s reelection bid. The lawyer tweeted:
“I asked Redwood City to allow me to paint MAGA2020 next to BLM on the Broadway. Instead, they are erasing BLM. I stand for the 1st Amendment and everyone’s right to express their political views in a new public forum of street asphalts.”
Copyright 2022, Metropolitan News Company