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  • Writer's pictureElizabeth Slattery

O'Handley v. Weber

In "America's Next Top Petition," we highlight noteworthy cert petitions.

Why do we care?

The government’s interaction with social media platforms has introduced a variety of legal questions related to free speech. This term, the Court will hear two cases—O’Connor-Ratcliff v. Garnier and Lindke v. Freed—looking at when government officials' social media activity constitutes state action. The Court also will hear Murthy v. Missouri, which presents the related issue of “jawboning,” which is when the government pressures private social media companies to change their content moderation practices. Murthy implicates federal officials; O'Handley v. Weber concerns state officials.

What's the background?

Rogan O'Handley is a political commentator (@DC_Draino) who posted on X (formerly Twitter) calling for an audit of California ballots in November of 2020. California's Office of Election Cybersecurity, which is charged with monitoring and "counteract[ing] . . . false or misleading information regarding the electoral process" that is published online, Cal. Elec. Code §10.5(b)(2), sent a message to X flagging the post as disinformation. X labeled this and several of O'Handley's other posts between November 2020 and January 2021 as disinformation and indefinitely suspended his account in February 2021. X reinstated the account two years later.

How did this case get to SCOTUS?

O'Handley sued X and California officials alleging, among other things, that they acted in concert to censor his speech. The United States District for the Northern District of California dismissed the complaint, finding that O'Handley lacked standing because his injury was not traceable to the government and that X's interaction with state officials did not transform it into a state actor.

O'Handley appealed to the U.S. Court of Appeals for the Ninth Circuit, which held that he had standing to sue California officials because it is "possible to draw a causal line from [California] flagging of the November 12th post to O'Handley's suspension from the platform." Despite this, the Ninth Circuit held that X was not a state actor and remained “free to ignore” the state’s request to label O'Handley's post as disinformation. It also found the California officials had not engaged in any unconstitutional acts. Finally, the court reasoned that California has a "strong interest in expressing its views" on election integrity and that its message to X was permissible government speech. O'Handley petitioned the Supreme Court for review.

What are the questions presented?

  1. 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 X/Twitter to punish and X/Twitter complied.

  2. Whether the government speech doctrine empowers state officials to tell X/Twitter to remove political speech that the State deems false or misleading.

Click here to view the docket, including the petition for a writ of certiorari, amicus briefs, and a brief in response.


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