[00:00:02] Speaker 02:
I would like to reserve five minutes for rebuttal, please.

[00:00:04] Speaker 04:
Council, could you introduce yourself for the record, please?

[00:00:06] Speaker 02:
Absolutely, Your Honor.

[00:00:07] Speaker 02:
May it please the court.

[00:00:08] Speaker 02:
Buck Doherty, Senior Counsel of Liberty Justice Center on behalf of the Plaintiff Appellate, Justin Hart.

[00:00:14] Speaker 02:
This case is about free speech under the First Amendment and whether government officials can train social media companies in content moderation

[00:00:22] Speaker 02:
and then go on and censor American speech.

[00:00:25] Speaker 01:
Excuse me, Counsel, what does train a private company mean?

[00:00:30] Speaker 01:
I mean, you're saying that the government came to Facebook, Twitter, or whatever other social platform and trained them to do a particular thing.

[00:00:42] Speaker 01:
Did they train them or did they just provide them information?

[00:00:46] Speaker 01:
They trained them, Your Honor, and we believe that the record clearly reflects this.

[00:00:51] Speaker 01:
How did they train them?

[00:00:54] Speaker 01:
I have an issue about that because it gets into standing and a lot of other things, and so I want to know how you figure that the government trained Facebook or Metta or whatever it's called now.

[00:01:09] Speaker 01:
and Twitter to do a particular thing.

[00:01:12] Speaker 02:
Right, and I think, Your Honor, the timeline is the most persuasive.

[00:01:15] Speaker 02:
It was in Hart's opening brief, and that was laid out in specific detail.

[00:01:19] Speaker 02:
April 29, 2021, Peyton Iheem emails Carol Crawford, who is the chief of digital media for the CDC, and says she would like to, quote, schedule a training with the CDC on, quote, community standards, COVID-19 misinformation, and harm policies.

[00:01:37] Speaker 01:
So what's wrong with training?

[00:01:38] Speaker 01:
That seems different because as I read through the briefs, I kept coming up with the feeling that you were saying the government did X, Y, and Z. And I didn't necessarily see that the government did it.

[00:01:55] Speaker 01:
They simply made this information available.

[00:01:58] Speaker 01:
And I think a large part, you know, some of the argument was that COVID was caused 90% because of a face mask, a surgical mask.

[00:02:10] Speaker 01:
Well, they wanted to say, look, that's not necessarily accurate, so what do you do about it?

[00:02:16] Speaker 01:
Wouldn't a social media company want to know what to do when something that seems so blatantly incorrect, how it should be handled?

[00:02:26] Speaker 02:
No, Your Honor, and this is why.

[00:02:28] Speaker 02:
Congress created a statutory scheme for social media companies to make their own content moderation decisions.

[00:02:35] Speaker 04:
Well, what is there in the record to show they didn't make their own decisions?

[00:02:38] Speaker 04:
They got the information from the government, but it was up to each social media provider to determine what to do with that information.

[00:02:46] Speaker 02:
Well, again, going back to answer your question, we're at the Rule 12 stage.

[00:02:51] Speaker 02:
And I think this is where the crux of this case and this argument is on appeal.

[00:02:56] Speaker 02:
At the Rule 12 stage, Justin Hart tried to amend his complaint to include this additional evidence, evidence that was, some of it was recovered in the FOIA request.

[00:03:09] Speaker 02:
And then some of the evidence came out of the Missouri, the Biden case, including the deposition transcript of Carol Crawford.

[00:03:15] Speaker 03:
Well, in the back,

[00:03:16] Speaker 03:
for background though, the Ninth Circuit has had a number of these cases and had a recent one, Rogolinski as well.

[00:03:23] Speaker 03:
And no one's gotten by 12B so far, correct?

[00:03:27] Speaker 03:
And so the only place where it seems that there may be hope is Missouri v. Biden, which is not out of the Ninth Circuit, where the Supreme Court has granted cert.

[00:03:39] Speaker 03:
And in that case,

[00:03:41] Speaker 03:
there were the district court determined that the federal officials had made threats of reprisal.

[00:03:51] Speaker 03:
So that, if that case, let's say if the Supreme Court embraces that, that's your best hope.

[00:03:58] Speaker 03:
Nothing in the Ninth Circuit so far.

[00:04:00] Speaker 03:
And I'm wondering what threats of reprisal were there in this instance?

[00:04:05] Speaker 02:
Well, this case, as we point out, is distinguished from Ohanley and Rogolinski as well.

[00:04:10] Speaker 02:
Training under the Sal case, the Ninth Circuit Sal decision, was not ever pled in any of those cases.

[00:04:17] Speaker 02:
There were instances of one time something was flagged and brought to the attention, and then it was the facts suggested that those decisions were made by the social media companies.

[00:04:28] Speaker 02:
We don't have the facts like that here.

[00:04:31] Speaker 04:
But that's the point, counsel.

[00:04:33] Speaker 04:
You have training.

[00:04:35] Speaker 04:
And I don't know if under our precedent that's enough to show government interference with the decisions that were made by the social media companies.

[00:04:44] Speaker 02:
Well, again, and we think, as Your Honor pointed out, in Biden, yes, before the Supreme Court right now, it's the coercion under kind of the Bannon Book's jawboning standard.

[00:04:56] Speaker 02:
We allege that.

[00:04:57] Speaker 02:
And alternatively, we also allege that there was joint cooperation to satisfy state action.

[00:05:06] Speaker 03:
Well, I think people a lot of times just sort of think globally look at these as the liberal platforms are kicking off conservative viewpoints.

[00:05:17] Speaker 03:
And that in order, obviously, they have to make the platforms a state actor in order to implicate the First Amendment.

[00:05:26] Speaker 03:
What if these, there's the platforms, what if they have these liberal views that disagree with this, your client's more conservative views and he signed a user agreement, why can't they just kick them off if it's their views?

[00:05:42] Speaker 03:
That's their views.

[00:05:43] Speaker 02:
And to be clear, Hart takes no exception with Congress's statutory scheme of Section 230.

[00:05:48] Speaker 02:
Private companies are, that's how Congress intended it, to make their own moderation decisions unfettered by state or federal regulation.

[00:05:59] Speaker 02:
Hart is simply saying if they're going to be private social media companies, they need to behave like private social media companies.

[00:06:05] Speaker 04:
So they shouldn't have any information?

[00:06:07] Speaker 04:
Are you saying that if the government gives social media platforms information,

[00:06:12] Speaker 04:
that that becomes a government action, and social media's platform should function without soliciting information that would be helpful to their decision making?

[00:06:22] Speaker 02:
We're not saying that, Your Honor.

[00:06:24] Speaker 02:
What we're simply saying is the record reflects that Peyton Iheem is in charge of US public policy for Facebook.

[00:06:31] Speaker 02:
And she says to Carol Crawford, I would like to, quote, schedule a training with CDC on community standards, COVID-19, and disinformation.

[00:06:40] Speaker 02:
That's information.

[00:06:42] Speaker 02:
And then Hart was later, a month later, that is why he was deplatformed for those specific instances.

[00:06:49] Speaker 01:
How else is she supposed or is Facebook supposed to get this information unless they send someone to get this information through training or discussions or whatever?

[00:07:02] Speaker 01:
I don't see where that transforms itself to the government taking over the platform and making the decision.

[00:07:13] Speaker 01:
And as just said, there's a license agreement or a user agreement, and it's a private company.

[00:07:21] Speaker 01:
They can do what they want to do to a certain extent.

[00:07:25] Speaker 01:
What else are they supposed to do?

[00:07:27] Speaker 01:
How else do they get information to make their own decisions as to what should or should not be put on their platform?

[00:07:36] Speaker 02:
To be clear, Carol Crawford is not a physician.

[00:07:40] Speaker 02:
She's not a health expert at all for the CDC.

[00:07:43] Speaker 02:
She is the chief of digital media.

[00:07:45] Speaker 02:
She is in charge of the CDC's website.

[00:07:48] Speaker 02:
That's what she does.

[00:07:49] Speaker 02:
Rob Flaherty, same thing with the White House.

[00:07:52] Speaker 02:
He was digital media.

[00:07:54] Speaker 02:
They are training

[00:07:55] Speaker 02:
Facebook and Twitter in digital media on what they, the government, deems to be misinformation and those decisions that are made that are ongoing and continuous.

[00:08:06] Speaker 01:
Why couldn't Facebook decide that what Mr. Hart was saying was trying to promote a particular medical diagnosis which to many people could be considered ridiculous?

[00:08:21] Speaker 01:
Facebook can and Twitter can on their own.

[00:08:24] Speaker 02:
And that's what they did.

[00:08:25] Speaker 02:
No, that's not what they did and that's not what the record reflects.

[00:08:28] Speaker 02:
The district court, and again, this is bringing this back to the Rule 12 stage.

[00:08:33] Speaker 02:
The record actually looks like a Rule 56, and that's because a lot of the information in the exhibits were gleaned from the other case.

[00:08:41] Speaker 02:
We have a deposition transcript, and Justin Hart was not even allowed to amend his complaint to include this information.

[00:08:48] Speaker 02:
And the district court went a step further and said, actually reviewed Carol Crawford's deposition transcript and said that Hart misconstrues her transcript.

[00:08:59] Speaker 02:
Well, that's a clear error of law.

[00:09:01] Speaker 03:
Let me ask you hypothetically.

[00:09:05] Speaker 03:
Let's just say that we think, and it's hypothetical because we haven't conferenced on this case, so we don't have an opinion.

[00:09:13] Speaker 03:
We haven't written an opinion before we come here or anything.

[00:09:16] Speaker 03:
But hypothetically, let's just say the panel were to conclude that O'Hanley

[00:09:20] Speaker 03:
and then the recent case of Brogolinski are controlling.

[00:09:23] Speaker 03:
And under the Ninth Circuit precedent, you lose.

[00:09:26] Speaker 03:
Okay, let's say hypothetically we conclude that.

[00:09:28] Speaker 03:
Do we need to wait for Missouri v. Biden to decide this case?

[00:09:34] Speaker 02:
I don't think we do, or this court needs to wait, this panel needs to wait.

[00:09:38] Speaker 02:
There are a few different issues up on appeal before the Supreme Court, and I believe oral argument is next month.

[00:09:42] Speaker 02:
One of those being the scope of the preliminary injunction.

[00:09:45] Speaker 02:
We don't have a preliminary injunction in this situation.

[00:09:48] Speaker 02:
There was a broad preliminary injunction by Judge Dowdy at the district court that was narrowed by the Fifth Circuit, and that's one of the issues on appeal before the Supreme Court, in addition to

[00:09:59] Speaker 02:
the standing issue.

[00:10:01] Speaker 02:
And so we would suggest that no, this court would not need to wait for that decision.

[00:10:06] Speaker 02:
We believe Sal is a good fit and factually Hart is distinguished from Ohanley and from Rogolinski.

[00:10:15] Speaker 02:
I'm sorry.

[00:10:17] Speaker 03:
Go ahead, Judge Rawlinson.

[00:10:19] Speaker 02:
I'm probably over my rebuttal time, so I want to come back on rebuttal.

[00:10:22] Speaker 04:
All right.

[00:10:23] Speaker 04:
Thank you for the questions.

[00:10:24] Speaker 04:
Thank you, counsel.

[00:10:34] Speaker 05:
Good morning, Your Honor.

[00:10:35] Speaker 05:
May it please the court, Daniel Winnick for the government.

[00:10:38] Speaker 05:
The district court properly determined it would be futile for plaintiff to amend his complaint.

[00:10:43] Speaker 05:
That ruling should be affirmed both because the amended complaint doesn't establish jurisdiction and because it fails as a matter of law.

[00:10:49] Speaker 05:
And the district court's disposition of the FOIA claim should likewise be affirmed.

[00:10:54] Speaker 05:
Unless the court has questions about FOIA, I'll spend my time on the First Amendment claim.

[00:10:57] Speaker 05:
And I'd like to start with the threshold issue of standing.

[00:11:00] Speaker 05:
The complaint pleads no concrete basis to believe that any communications between the government and the platforms had anything to do with the past moderation of plaintiff's posts.

[00:11:09] Speaker 03:
Let me ask you this, though.

[00:11:11] Speaker 03:
But did Facebook change its policies concerning alleged misinformation about COVID following the interactions with the federal officials commencing in April 2021?

[00:11:21] Speaker 03:
And why isn't any change in its policies evidence of coercion?

[00:11:28] Speaker 05:
As an initial matter on the plaintiff doesn't argue coercion to this court, as a factual matter, Facebook did.

[00:11:35] Speaker 03:
Did you change your policies after?

[00:11:37] Speaker 03:
Well, did Facebook change?

[00:11:38] Speaker 03:
Did Facebook, yeah, change its policies after this training?

[00:11:43] Speaker 05:
So Facebook, like other social media platforms, made certain changes to its policies over the course of 2020 and 2021.

[00:11:50] Speaker 04:
Before or after the training?

[00:11:53] Speaker 04:
That's the question.

[00:11:54] Speaker 05:
So let me answer about the timeline and then talk about the training.

[00:11:59] Speaker 05:
In July 2021 is the email on which plaintiff has focused.

[00:12:03] Speaker 05:
There's an email from Facebook to the Surgeon General saying we've changed our policies in a number of respects.

[00:12:08] Speaker 05:
There's no basis to think that any of those changes were because of any communications from the government.

[00:12:13] Speaker 05:
There's no basis to think that any of those changes explained why plaintiff, why Facebook moderated these particular posts from plaintiff.

[00:12:21] Speaker 04:
Why would that missive go to the Surgeon General then?

[00:12:26] Speaker 05:
Because the government was communicating with the platforms about the fact that the government thought platforms should be doing more to prevent harmful misinformation from spreading online.

[00:12:36] Speaker 05:
There's nothing wrong with the government doing that.

[00:12:38] Speaker 04:
We didn't say anything was wrong, but we were asking you whether or not the changes were made before or after.

[00:12:43] Speaker 04:
And so there is an inference that the changes were made in response to something the government said, because otherwise, why would those changes be transmitted to the government?

[00:12:55] Speaker 05:
Well, I mean, I think there's no basis to infer that they were made because of something the government said.

[00:13:00] Speaker 03:
Well, it's a 12b6, and I think, and the appellant rightly says it's not, you know, it's not a summary judgment.

[00:13:08] Speaker 03:
It's a motion to dismiss.

[00:13:10] Speaker 03:
So, timeline, there's an inference from the timeline, and

[00:13:15] Speaker 03:
How should we, a court, determine whether Facebook's policies or changes in policies are independent determinations or the result of federal coercion?

[00:13:25] Speaker 03:
Certainly the denial of coercion is pretty conclusive.

[00:13:29] Speaker 03:
It's not necessarily, you know, people always, they, you know, denials, you know, conclusionary statements aren't necessarily enough to defeat that.

[00:13:39] Speaker 05:
So let me just sort of set back for a second.

[00:13:41] Speaker 05:
First of all, even if there were a basis for thinking that communications between the government and Facebook amounted to coercion, which is not something he has argued to this court, there's no basis to think that any of that had anything to do with the moderation of his posts about masking.

[00:13:55] Speaker 05:
So that's why there's no jurisdiction, as the Sixth Circuit held.

[00:13:58] Speaker 05:
And second, as to sort of the merits of the coercion issue, he doesn't even argue coercion to this court as a basis for reversing the district court.

[00:14:06] Speaker 05:
And the reason he doesn't is it's so clear in the record, as this court has recognized in prior cases, in Doe and in O'Hanley and in Rogolinski, that there's no allegation of a threat made by the government that the platforms had to take the government's advice on content moderation or face some sort of punishment.

[00:14:26] Speaker 04:
So counsel, if there is no basis for coercion, how can there be state action?

[00:14:32] Speaker 05:
So that's a good question.

[00:14:34] Speaker 05:
The only basis on which he has argued state action here is joint action.

[00:14:38] Speaker 05:
So instead of making any coercion argument to this court, he's argued that there was joint action because he says the government and Facebook and Twitter were working hand in hand.

[00:14:49] Speaker 05:
Let me speak first to standing and second to the merits.

[00:14:54] Speaker 05:
As to standing, regardless of whether he is right that the quote unquote trainings provided by CDC to the platforms made certain content moderation decisions by the platforms,

[00:15:05] Speaker 05:
into state action.

[00:15:07] Speaker 05:
There's no basis to think that any of that had anything to do with the moderation of his posts.

[00:15:11] Speaker 05:
And the reason I say that is that the trainings, the quote unquote trainings, were about vaccine related misinformation, as one would expect in mid 2021.

[00:15:19] Speaker 05:
His posts, the ones that were taken down in July 2021, those were about masking.

[00:15:24] Speaker 05:
So there's no connection at all between these CDC communications and the posts that were actually taken down.

[00:15:30] Speaker 05:
That's why there's no jurisdiction.

[00:15:31] Speaker 05:
As to the merits, the reason there's no joint action is that, as this court said very clearly in O'Hanley, which is on almost identical facts, and in Mathis,

[00:15:40] Speaker 05:
Consultation and information sharing between the government and a private party doesn't transform the private party's action into state action.

[00:15:50] Speaker 05:
You need something much more than that, as there was in Cao.

[00:15:53] Speaker 05:
I mean, he relied heavily on Cao, but Cao was just a breathtakingly different

[00:15:57] Speaker 05:
In Cao, the government had delegated to a private party a governmental power, the power to issue trespassing citations with the force of law, and had provided training in the exercise of that governmental power, and had provided information instrumental to the exercise of that power, such as whether someone had a prior, had an outstanding warrant for trespassing.

[00:16:20] Speaker 03:
That's just fundamentally different than the sort of- Well, the problem with 12b6 is you cut people off right out the gate.

[00:16:25] Speaker 03:
And you can't know what you don't know.

[00:16:27] Speaker 03:
And the government isn't always the most forthcoming.

[00:16:30] Speaker 03:
So it's a pretty low barrier to let someone get past that, do some discovery, and then decide whether there's nothing there.

[00:16:40] Speaker 03:
I don't know what Missouri v. Biden's going to hold.

[00:16:45] Speaker 03:
Is there any reason we should wait for that to see if it has any impact on this?

[00:16:50] Speaker 05:
We certainly don't object to your waiting for a Supreme Court decision in that case.

[00:16:53] Speaker 05:
I agree with plaintiff.

[00:16:55] Speaker 05:
I don't think there's any particular reason to think it's going to shed light on the allegations here, which are, as Judge Nelson noted in his concurrence in Rogolinski, in Missouri v. Biden, there's a factual record.

[00:17:06] Speaker 03:
Well, he's kind of saying it's troubling.

[00:17:08] Speaker 03:
It's troubling, and we can't know what we don't know.

[00:17:11] Speaker 03:
And then we find out years later, and then it's too late.

[00:17:15] Speaker 05:
So I mean, I guess what I'd say is even if the Supreme Court were to think the facts developed there were sufficient, I don't think that would mean the allegations you are.

[00:17:23] Speaker 05:
But again, we certainly don't object to this court's holding this case for that one.

[00:17:28] Speaker 05:
But I think as to whether this is sort of a low threshold,

[00:17:32] Speaker 05:
The Supreme Court has been quite clear in Twombly and Iqbal, as has this court, subsequently, that you don't get to unlock the doors of discovery with mere speculation.

[00:17:40] Speaker 05:
You can't just sort of say it and get discovery to see whether it's true.

[00:17:43] Speaker 05:
And I do think that's what plaintiff is trying to do here.

[00:17:45] Speaker 05:
I mean, they have gotten information through the FOIA productions.

[00:17:49] Speaker 05:
That's why Judge Breyer let them come back and amend the complaint.

[00:17:52] Speaker 05:
And even after that and after looking at the

[00:17:54] Speaker 05:
information that has been elicited in Missouri versus Biden.

[00:17:58] Speaker 05:
They really don't have anything to point to to suggest that there was joint action between the government and the platforms here, much less joint action having anything to do with the moderation of his particular post.

[00:18:08] Speaker 05:
I mean, it's noteworthy that he doesn't identify a single communication from the government having anything to do with his post.

[00:18:14] Speaker 05:
He points to this email from a former FDA commissioner to Twitter as if that's somehow evidence that the government was intervening.

[00:18:22] Speaker 05:
He's a former FDA commissioner at the time.

[00:18:23] Speaker 03:
Well let me just ask you hypothetically and this is hypothetical because it's not if a lot of times people view these things when people get kicked off platforms that it's the conservatives that get kicked off by the liberal platforms.

[00:18:37] Speaker 03:
Let's just assume that

[00:18:40] Speaker 03:
We don't know who's right about what they're having to say, but that Facebook and Twitter, they've decided everyone should wear masks and vaccines work, and despite the fact that all of us may have been boosted and vaccinated and stabbed and worn masks and still got COVID.

[00:19:00] Speaker 03:
But Facebook, that's what their view is.

[00:19:05] Speaker 03:
Is there anything that prevents them from just saying, you know, that's my view and I'm sticking to it and it doesn't matter whether you're right or wrong, I'm kicking you off because I don't want to hear from you.

[00:19:17] Speaker 03:
Can they do that?

[00:19:18] Speaker 05:
They can and not only can they do that, but they have a constitutional right to set their own content moderation policies and to determine what kind of community they want to foster and what kind of content they want to allow.

[00:19:31] Speaker 03:
So even though we don't like to think that what we think has limits on these social media platforms, people sign user agreements, and if the platform doesn't like it, they can censor your viewpoint.

[00:19:47] Speaker 05:
I agree with all of that, Your Honor, and not only can they, they do set content moderation policies that's intrinsic to the economics of social media and why they, you know, that's the origin of Section 230 is to allow platforms to do that sort of thing.

[00:20:02] Speaker 03:
Give me an example of how someone could state a claim against a platform for being kicked off.

[00:20:09] Speaker 03:
Could show government action.

[00:20:11] Speaker 03:
What would be, what would your, give me some facts that you think would

[00:20:16] Speaker 05:
Sure, I mean, it would be coercion if the government said, take this person down or take that post down or we're going to punish you.

[00:20:24] Speaker 05:
Like take away 230?

[00:20:27] Speaker 03:
Take away your 230 protection?

[00:20:30] Speaker 05:
No, I mean, I think it's, obviously, it starts getting quickly into sort of gray areas, but I think the government's discussion of potential regulatory responses to a problem in the world is not a basis to say that anything a company might do to head off regulation of state action.

[00:20:47] Speaker 05:
This court said that in Mathis.

[00:20:48] Speaker 03:
I mean, in Mathis... Didn't they give some, in this case, didn't they offer to give the government $15 million of free advertisements for their position?

[00:20:57] Speaker 05:
So Facebook did provide what it labeled as $15 million worth of effectively public service announcements.

[00:21:04] Speaker 05:
If that had gone the other way, I mean, if the government was giving Facebook $15 million, I guess I would understand the argument that Facebook was then sort of beholden to take certain actions that the government wanted them to take.

[00:21:13] Speaker 05:
I really don't understand the argument that because Facebook was giving the government some public service advertisement space that Facebook was then beholden to the government.

[00:21:21] Speaker 03:
OK, thank you.

[00:21:24] Speaker 05:
Unless the court has further questions, we'd ask that the district court's judgment be affirmed.

[00:21:27] Speaker 04:
Thank you.

[00:21:27] Speaker 04:
Thank you, counsel.

[00:21:28] Speaker 04:
Roboto?

[00:21:32] Speaker 04:
Do we have another defendant?

[00:21:34] Speaker 04:
Oh, yes.

[00:21:35] Speaker 04:
There's someone else.

[00:21:35] Speaker 04:
I'm sorry.

[00:21:36] Speaker 04:
I didn't mean to cut you off from arguing.

[00:21:38] Speaker 03:
You only have five minutes.

[00:21:39] Speaker 00:
Only five minutes.

[00:21:39] Speaker 00:
We'll give you your five.

[00:21:40] Speaker 00:
I'll be brief.

[00:21:42] Speaker 00:
Your honor may please the court.

[00:21:43] Speaker 00:
Abby Colella on behalf of META.

[00:21:45] Speaker 00:
With me at council table is Jonathan Patchen who represents X Corp.

[00:21:49] Speaker 00:
He's available to answer any questions you have about Twitter specifically.

[00:21:53] Speaker 00:
The standard for holding a private party liable as a state actor is demanding, as this court put it in O'Hanley, state action only exists when the defendant has exercised power made possible by virtue of state law and made possible because the wrongdoers closed with the authority of state law.

[00:22:09] Speaker 00:
And O'Hanley teaches us that that's just not this case.

[00:22:12] Speaker 00:
In O'Hanley, this court found that the case turned on the fact that Twitter was exercising its own rights under its terms of use when it blocked the paint his post as election misinformation.

[00:22:22] Speaker 03:
Why don't you tell us how the alleged actions of the federal officials alleged by Mr. Hart are different from the actions that gave rise to the issuance of an injunction in Missouri v. Biden?

[00:22:32] Speaker 00:
I think the main difference in the allegations is that in Missouri v. Biden there were more allegations of threats.

[00:22:39] Speaker 00:
So there were allegations that government officials were threatening kind of regulatory action and to kind of launch investigations if the platforms didn't comply.

[00:22:49] Speaker 00:
And there aren't any allegations of that here.

[00:22:52] Speaker 00:
The other thing I'd point out that's a real distinction between this case and Murthy v. Missouri or Missouri v. Biden is that this case, well, first of all, Murthy is a coercion case, and Hart has not advanced a coercion-based argument here.

[00:23:06] Speaker 00:
The other point is that this case is positioned really differently than Murthy when it comes to the private parties.

[00:23:12] Speaker 00:
Murthy is a suit brought against the government, and it's seeking an injunction barring the government from communicating coercively with social media services.

[00:23:19] Speaker 00:
So the thrust of the case, and the Fifth Circuit says this, is to make sure that companies like Metta and Twitter are able to exercise independent judgment.

[00:23:27] Speaker 00:
And Mr. Hurtsoot just isn't focused on that kind of government interference.

[00:23:32] Speaker 00:
You can see that from the injunctive relief he's seeking.

[00:23:34] Speaker 00:
He's named Facebook and Twitter as defendants, and he's seeking injunctive relief that would require Facebook and Twitter to carry his speech in the future, regardless of its viewpoint, and to prohibit the private parties from adopting policies

[00:23:47] Speaker 00:
that are generally aligned with the government.

[00:23:49] Speaker 00:
So his argument is that effectively private parties can't agree with the government or else they open themselves up to liability as state actors.

[00:23:57] Speaker 00:
So that's very different from Morphy, which is just a case seeking to constrain the way the government interacts.

[00:24:05] Speaker 00:
And on that coercion point, again, we think that that

[00:24:09] Speaker 00:
coercion issue has been waived here.

[00:24:11] Speaker 00:
But to the extent this court is thinking about coercion, we just want to point out that that theory only allows plaintiffs to hold the government liable.

[00:24:20] Speaker 00:
It doesn't support a claim against the private party that got coerced.

[00:24:25] Speaker 00:
And that makes sense, because coercion or significant encouragement, it's when the government kind of overwhelms the private party and compels it to act in a certain way.

[00:24:33] Speaker 00:
So it doesn't make sense for the private victim of government coercion to face liability for a thing it was forced to do.

[00:24:40] Speaker 00:
And that's something this court pointed out in Doe v. Google.

[00:24:43] Speaker 00:
They called it an inversion of liability that's barred by this court's precedent.

[00:24:48] Speaker 00:
So to the extent coercion is on the table or the allegations would suggest coercion, if this court wished to reach that, that just only supports claims against the government.

[00:24:57] Speaker 00:
The other point here, just a response to the timing allegations.

[00:25:02] Speaker 00:
You were asking about the timing.

[00:25:05] Speaker 00:
The supposed training, that happened in kind of the April period.

[00:25:10] Speaker 00:
Then this post was moderated in July.

[00:25:13] Speaker 00:
And then the supposed changes to the policy happened in August.

[00:25:18] Speaker 00:
So that would have been after the training.

[00:25:21] Speaker 00:
And as my colleague from the government mentioned,

[00:25:26] Speaker 00:
The training, the allegations about the training just don't have any connection to the actual post that was moderated here.

[00:25:34] Speaker 00:
This was a post about masking and those trainings, the be on the lookout meetings, they were about vaccine misinformation.

[00:25:42] Speaker 00:
So things like microchips and vaccines and the idea that vaccines make you magnetic.

[00:25:47] Speaker 00:
So there wouldn't really be any reason to believe that

[00:25:51] Speaker 00:
that kind of training would play any impact in Metta's role, in the action Metta took with respect to Mr. Hart's post.

[00:26:01] Speaker 00:
And the final point that I'd make is that Sal, the case on which

[00:26:06] Speaker 00:
Heart primarily relies just doesn't say that private parties become an arm of the state when they accept information from the state or when they accept training.

[00:26:15] Speaker 00:
That was about the delegation of government authority.

[00:26:17] Speaker 00:
It was about acting while clothed with the power of the state based on power you got from the state.

[00:26:23] Speaker 00:
And this just isn't that case.

[00:26:25] Speaker 00:
This is a case with a private party

[00:26:27] Speaker 00:
implementing its own contractual rights to govern content on its private service.

[00:26:32] Speaker 03:
So hypothetically, even if you say, OK, Metta's the big bully that's got all the power and can silence the voices of people that they think what they're saying isn't right,

[00:26:47] Speaker 03:
no First Amendment violation.

[00:26:50] Speaker 00:
Your Honor, I do understand those concerns as a policy.

[00:26:52] Speaker 03:
Well, no.

[00:26:53] Speaker 03:
I'm just trying to say what the outside.

[00:26:55] Speaker 03:
The First Amendment, you've got to have government action, right?

[00:26:59] Speaker 03:
You've got to have state action.

[00:27:00] Speaker 00:
I think that's right, Your Honor.

[00:27:01] Speaker 03:
So even if, hypothetically, even if we walk out of here and say, Metta's being a big bully, doesn't really want to hear, doesn't really want to hear from anyone else, and they kicked him off for that reason, they can do it, right?

[00:27:13] Speaker 00:
I think that's correct, Your Honor.

[00:27:14] Speaker 00:
Metta's a private party.

[00:27:15] Speaker 03:
I mean, I don't think Metta wants to be seen that way, but even if that were the conclusion, you would say you still win, right?

[00:27:24] Speaker 03:
Yes.

[00:27:25] Speaker 00:
And I think this court made that clear in Prager v. Google.

[00:27:27] Speaker 00:
Its analysis there, which was holding that YouTube is not a state actor, it just rejected the idea that there's anything special about social media sites when it comes to state function or the state action tests.

[00:27:39] Speaker 00:
They're not exceptional.

[00:27:40] Speaker 00:
They should be treated the same way as other private parties.

[00:27:43] Speaker 00:
If the court doesn't have further questions, we ask support to adjourn.

[00:27:47] Speaker 00:
It appears not.

[00:27:47] Speaker 00:
Thank you, counsel.

[00:27:49] Speaker 04:
Rebuttal.

[00:27:54] Speaker 02:
Thank you, your honor.

[00:27:55] Speaker 02:
I'd like to address first point, the masking issue.

[00:27:58] Speaker 02:
Yes, Hart's two posts, both on Twitter and Facebook, were about masking.

[00:28:05] Speaker 02:
If you go to page 71 of Crawford's deposition transcript, lines 11 through 17, question, did the CDC ever gain access to or in any way receive information about the viewpoint of US citizens on COVID masking or vaccination from census?

[00:28:22] Speaker 02:
Crawford's answer, we likely did because they provided reports on misinformation that they were seeing to us.

[00:28:29] Speaker 02:
So this notion that somehow it's hearts posts weren't about masking and the training only pertain to vaccination is not accurate.

[00:28:38] Speaker 04:
Number one, but is it fair to say that the majority of the training was on vaccines?

[00:28:45] Speaker 04:
Is that a fair statement?

[00:28:46] Speaker 02:
I don't the book, the majority of the bolo training.

[00:28:49] Speaker 02:
I think that's, but again, if you go to Crawford's deposition transcript, she refers to all kinds of that's one, that's one answer to one question.

[00:28:58] Speaker 04:
So,

[00:28:59] Speaker 04:
Is it fair to say that the bulk of the training, though, was for vaccines?

[00:29:07] Speaker 02:
The BOLO training, yes.

[00:29:08] Speaker 02:
I would say that would be accurate.

[00:29:10] Speaker 04:
Is there any other training that you can point to that was directed at masking as opposed to the vaccine?

[00:29:17] Speaker 02:
Well, I think I think I would go back to in the record, I am first email, which is April 29 2021 and she talks about community standards, COVID misinformation and harm policies.

[00:29:28] Speaker 02:
Those words were used in various formats.

[00:29:33] Speaker 02:
too hard when he was deplatformed.

[00:29:36] Speaker 02:
He was deplatformed because of harmful, actually said that the speech itself caused physical harm.

[00:29:45] Speaker 02:
The actual words caused physical harm.

[00:29:47] Speaker 04:
But I'm just trying to get you to pinpoint for me in the record where there was training about masking as opposed to training about the vaccine.

[00:29:58] Speaker 02:
Yeah, I don't think there was specific training about that, what you're asking.

[00:30:02] Speaker 04:
About masking?

[00:30:03] Speaker 02:
Correct.

[00:30:04] Speaker 02:
Other than what I just read in Crawford's transcript.

[00:30:07] Speaker 02:
Again, we go back to rule 12, and the district court literally said Hartness construes those facts in her transcript.

[00:30:16] Speaker 02:
The other point that was raised.

[00:30:18] Speaker 04:
Well, even on rule 12, the facts can't be conclusory.

[00:30:23] Speaker 04:
There has to be some specificity regarding the allegations that are being made.

[00:30:27] Speaker 02:
Well, and we believe this record shows that and certainly the timeline, it was discussed earlier, the timeline is very compressed and I think this is critical.

[00:30:37] Speaker 02:
July 13 and July 18, heart's posts are restricted and

[00:30:44] Speaker 02:
He's shut out.

[00:30:46] Speaker 02:
He's bought.

[00:30:46] Speaker 02:
Ten days later, on July 23rd, 2021, Facebook's Nick Clegg emails Murthy, the Surgeon General, to report on the steps that Facebook, quote, took this past week to adjust policies and what it was removing with respect to misinformation.

[00:31:03] Speaker 04:
Right.

[00:31:03] Speaker 04:
The problem is that there's no connection between the removal and the government, other than the training.

[00:31:10] Speaker 04:
And I'm not sure that gets you where you want to be.

[00:31:12] Speaker 02:
Well, I believe that there was discussion about Sal.

[00:31:15] Speaker 02:
That's exactly what we had in Sal.

[00:31:16] Speaker 04:
You had private... No, that's delegation of authority to a private party to conduct activities that normally would be conducted by the government.

[00:31:26] Speaker 04:
That's not true here because the government would never have the authority to take someone off Facebook.

[00:31:33] Speaker 02:
Well, Lugar also talks about, the first step of Lugar also talks about a rule of conduct which we noted in our reply brief.

[00:31:39] Speaker 02:
So we believe the rule of conduct was established with this timeline and with this communication.

[00:31:44] Speaker 04:
Lugar is different as well because there was direct government involvement in the action that led to the lawsuit.

[00:31:51] Speaker 02:
That's correct.

[00:31:52] Speaker 02:
However, in terms of the analysis that the Supreme Court set forth for courts to utilize, we believe there's clearly a rule of conduct that was established, and that is that the federal government officials trained social media platforms, particularly Facebook and Twitter, in how to moderate content.

[00:32:09] Speaker 03:
Again... Well, let me ask you this.

[00:32:11] Speaker 03:
Hypothetically, this is hypothetical, if

[00:32:15] Speaker 03:
If we were to conclude that, let's just say hypothetically, if Facebook and Metta and Twitter are just bullies and they don't want anyone, they have a great platform and we'd all like to be heard, but they

[00:32:30] Speaker 03:
They only want their message to come out.

[00:32:34] Speaker 03:
Can they kick your client off?

[00:32:36] Speaker 03:
If that's what the facts are here, if that's what the facts are at the end of the day, they can suppress that speech, right?

[00:32:42] Speaker 02:
If those are the facts at the end of the day, yes.

[00:32:44] Speaker 02:
And Hart takes no exception with that statutory scheme.

[00:32:46] Speaker 02:
Hart is simply saying they weren't their own policies.

[00:32:49] Speaker 02:
Right.

[00:32:49] Speaker 03:
I understand that is not.

[00:32:50] Speaker 03:
You're not conceding those issues.

[00:32:52] Speaker 03:
But I think probably the students listening think like, well, no one can suppress my speech.

[00:33:00] Speaker 02:
Well, again, we believe, putting this back to where it starts.

[00:33:04] Speaker 03:
That the first amendment is, we can't suppress any speech.

[00:33:07] Speaker 02:
We think it was clear error for the district court to construe the facts against Hart.

[00:33:12] Speaker 02:
Again, he was simply trying to amend his complaint.

[00:33:15] Speaker 02:
That is reviewed de novo by this court under the Rule 12 standard.

[00:33:19] Speaker 02:
And Justin Hart respectfully requests that this court reverse the district court's decision.

[00:33:24] Speaker 04:
Don't leave, counsel.

[00:33:24] Speaker 04:
I have a question.

[00:33:25] Speaker 02:
OK.

[00:33:25] Speaker 02:
Yes, your honor.

[00:33:26] Speaker 02:
I'll be happy.

[00:33:26] Speaker 02:
I just didn't want to go over my time.

[00:33:28] Speaker 04:
I know you're trying to get out of here.

[00:33:30] Speaker 02:
No, I don't want to abuse my time.

[00:33:32] Speaker 04:
You don't get away that easily.

[00:33:34] Speaker 04:
Could you briefly address the standing issue because the government made the point that your client doesn't have standing?

[00:33:40] Speaker 02:
Well, we briefed that extensively.

[00:33:42] Speaker 04:
Well, I want you to discuss it.

[00:33:45] Speaker 02:
Well, again, I think there was discussion about the changing of policies.

[00:33:48] Speaker 04:
But how does that correlate to the legal issue of standing?

[00:33:54] Speaker 02:
One of the issues that was brought up in briefing, the main issue, was that there was an allegation or an argument, I should say, that Hart did not show forward-looking relief.

[00:34:04] Speaker 02:
We believe that's not the case because Hart pled that.

[00:34:07] Speaker 02:
And if you look at the last BOLO meeting, Carol Crawford says, to be determined, the next meeting is to be determined.

[00:34:13] Speaker 02:
Well, it's plausible that there were meetings going on and those meetings continue.

[00:34:17] Speaker 02:
There's nothing in the record that said the meetings or training never stopped.

[00:34:21] Speaker 02:
And again, that last meeting was not in April, it was in June, about 30 days before Hart was to platform.

[00:34:27] Speaker 04:
As to the government, I'm trying to figure out for standing there has to be an action taken by a party

[00:34:33] Speaker 04:
that harms the plaintiff.

[00:34:36] Speaker 04:
So I'm trying to figure out from your complaint, what is the action by the government

[00:34:42] Speaker 04:
that resulted in harm to plaintiffs such that he has standing to sue the government.

[00:34:47] Speaker 02:
The constitutional deprivation, obviously, was removing parts to post.

[00:34:52] Speaker 02:
That was a result.

[00:34:53] Speaker 02:
We take the position that that's not, even though Facebook and Twitter did that, it was not because of their own policies.

[00:34:58] Speaker 02:
It was because of the training that they'd received from the government.

[00:35:01] Speaker 02:
And under Sal, that action can be fairly attributed to the government, and therefore the government's liable in that case.

[00:35:08] Speaker 04:
OK.

[00:35:09] Speaker 04:
I just want to understand your argument.

[00:35:10] Speaker 04:
If we disagree with you,

[00:35:12] Speaker 04:
regarding the government's involvement.

[00:35:14] Speaker 04:
Does that mean then that your client does not have standing to sue the government?

[00:35:20] Speaker 02:
Well, I don't want you to disagree.

[00:35:23] Speaker 02:
That's a yes or no.

[00:35:24] Speaker 02:
That's a yes or no.

[00:35:25] Speaker 03:
But if Twitter and Facebook acted pursuant to their own policies rather than through coercion

[00:35:33] Speaker 03:
A favorable judicial decision against the federal defendants would not provide relief.

[00:35:38] Speaker 03:
So you don't have standing if we don't agree.

[00:35:41] Speaker 03:
We have to.

[00:35:41] Speaker 02:
I think that's correct.

[00:35:42] Speaker 03:
I think that it's cascading.

[00:35:44] Speaker 03:
It has to be if this, if that.

[00:35:46] Speaker 02:
Right.

[00:35:47] Speaker 02:
I think that's right.

[00:35:47] Speaker 02:
And again, it's fairly attributed to the government.

[00:35:51] Speaker 02:
OK.

[00:35:51] Speaker 04:
I just wanted to make sure that I had your position in mind.

[00:35:56] Speaker 04:
If we don't agree with that, then you acknowledge that there is no standing to sue the government.

[00:36:02] Speaker 02:
That's correct.

[00:36:03] Speaker 02:
However, we think that under the Rule 12 standard, there are clearly facts that should be construed in Hart's failure.

[00:36:08] Speaker 02:
Understood.

[00:36:09] Speaker 02:
So unless there are other questions, we respectfully request that this court reverse the district court.

[00:36:14] Speaker 04:
Thank you, counsel.

[00:36:15] Speaker 04:
Thank you to all counsel for your helpful arguments in these challenging cases.

[00:36:19] Speaker 04:
The case just argued is submitted for decision by the court that completes our special sitting.

[00:36:24] Speaker 04:
Thank you again for coming to share this experience with us, and we are adjourned.