Hart v. Facebook, Inc.

Background

Justin Hart sued Facebook Inc., Twitter, President Joe Biden, Surgeon General Vivek Murthy, the U.S. Department of Health and Human Services, and the Office of Management and Budget. He alleged, among other things, that the defendants violated his First Amendment rights when Facebook and Twitter removed posts about COVID-19 and masks. Facebook also restricted Hart from posting on his page for three days, and Twitter temporarily locked his account.

In May 2022, the court granted the defendants’ motions to dismiss without leave to amend. It found that Hart lacked standing to pursue his claims against the federal defendants because he had not shown causation and redressability. It also found that his complaint did not state a First Amendment claim because it did not adequately allege that the federal defendants and the social-media companies acted jointly or that the government coerced the companies. The court declined to exercise supplemental jurisdiction over Hart’s state-law claims against Facebook and Twitter, while leaving open a possibility of amendment if Hart’s pending government-records request produced facts plausibly showing government participation in the companies’ enforcement of their policies.

Proposed Amendment

Hart moved to amend after receiving government records. His proposed complaint relied on communications involving the Centers for Disease Control and Prevention, the Surgeon General, and Facebook; discovery from a related case; and the “Twitter Files.” The proposed allegations included that government officials asked Facebook and Twitter to watch for COVID-related misinformation, that Facebook communicated with the Surgeon General about removing harmful misinformation, and that Facebook offered the CDC a $15 million advertising credit for public-health messaging. Hart also sought to add CDC Director of Digital Media Carol Crawford and former White House Senior Advisor Andy Slavitt as defendants.

The proposed complaint alleged that Scott Gottlieb complained to a Twitter lobbyist about one of Hart’s posts in September 2021. The court noted that Gottlieb was no longer serving in government when he made the complaint and therefore was acting as a private individual. The court also considered testimony from Crawford that the CDC held two “be on the lookout” meetings with social-media companies, that Twitter made its own content-moderation decisions under its own policy, and that the CDC did not discuss developing or enforcing content-moderation policies with the companies.

Court’s Analysis

The court explained that leave to amend may be denied when the proposed amendment would be futile—meaning the amended complaint would still fail as a matter of law. To show that private social-media companies’ conduct amounted to government action, Hart had to allege facts showing that the government participated in the specific moderation decisions at issue or dictated those decisions. General communications about misinformation, government requests to watch for misinformation, or private companies’ agreement with government goals were not enough.

The court held that Hart’s new allegations did not plausibly establish joint action or government coercion. The communications about COVID-related misinformation did not show that federal officials exercised dominant control over Facebook’s or Twitter’s decisions to restrict Hart’s accounts. Facebook’s offer of advertising credit for public-health messaging was unrelated to its decision to remove Hart’s posts. The court also found that Hart characterized Crawford’s testimony as proving government-platform interdependence, but the testimony instead indicated that Twitter made its own moderation decisions and that the CDC did not help develop or enforce those policies.

Disposition

Judge Charles R. Breyer denied Hart’s motion for leave to amend the complaint. The order states that the case is dismissed with prejudice.