Trump Lawyer Faces Tough 9th Circuit Questions in Twitter Censorship Appeal
Alex Kozinski, a lawyer for former President Donald Trump and several of his co-defendants, faced tough questioning in oral argument Wednesday from 9th Circuit U.S. Court of Appeals Judge Jay Bybee about the breadth of evidence on which they’re basing their challenge of the district court’s dismissal of their complaint against Twitter on First Amendment grounds.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The U.S. District Court for Northern California said the plaintiffs didn’t plausibly allege Twitter, now called X Corp., acted as a government entity when it suspended the plaintiffs' accounts.
“We see this as a very simple case,” Kozinski told the 9th Circuit. The plaintiffs made “quite specific allegations that there was a collaboration, coordination, coercion between the federal government agencies and Twitter, and that as a result of that, our clients’ accounts were suspended.”
The district court “faulted us for not presenting more evidence, or that it was unhappy with the evidence we presented,” said Kozinski. But in a complaint, a plaintiff “does not need to present any evidence,” he said. “All that we need are plausible allegations,” he said.
Here "we have public threats" against the social media companies to censor disfavored content, or face the implicit risk of losing their Section 230 immunity, said Kozinski, a 9th Circuit judge from 1985 to 2017. “We have executives of Twitter and other social media companies being called in” to congressional hearings and being forced to promise they would moderate disfavored content, he said.
Bybee, a President George W. Bush appointee, cited bullet points in the plaintiffs’ first amended complaint that purported to show the federal government engaged in coercion to force the social media companies to censor content. Bybee then asked Kozinski to explain how the statements of four senators at a committee hearing, as the plaintiffs referenced in their complaint, “all of a sudden commit all of the power of the federal government to create state action here.”
Kozinzki responded that “as we learned recently, a single congressman can dethrone the speaker of the House.” Kevin McCarthy’s ouster was “an internal matter to the House of Representatives,” replied the judge. “That’s their rules, and that’s not something we’re going to get in the middle of,” he said.
Bybee said his questions pertain to whether the First Amendment and the equal protection clause, “which are self-executing provisions, can be enforced by the judiciary, because a couple of members of Congress have made some strong statements.” The judge said he knows of no case “that stands for that proposition,” and “certainly no coercion cases.”
Asked by Bybee to cite his best coercion case, Kozinski mentioned Missouri v. Biden, in which the 5th Circuit just affirmed the district court’s injunction against the White House and several federal agencies for coercing or strongly encouraging social media companies toward favored content-moderation decisions. “What if I don’t accept the 5th Circuit’s reading?” asked the judge.
“Well, I understand that,” responded Kozinski. “If you don’t accept the 5th Circuit’s reading, then this should be the first case to do it,” he said. “We have not had cases involving legislators” that came down to the question of whether social media platforms were coerced into moderating content, said Kozinski. “Legislators are no different than any other government official,” he said.
Bybee reacted with disbelief. “Of course they are, counselor,” scolded the judge. “That’s a different branch of government. That’s an Article I power, and they can only act in a collegial fashion.”