Colleen Huber M.D. thinks she can cure cancer by altering patients’ sugar intake. She also believes baking soda is better than chemotherapy when it comes to fighting this disease. Rational people think she’s endangering people’s lives and have said as much. Repeatedly.
In response, Colleen Huber has filed lawsuits. Repeatedly. She feels she speaks from a position of expertise. But her expertise has only been lauded by others operating in the same shady medical field.
Following the arrival of COVID-19 on American shores, Dr. Huber began engaging in anti-vax agitation via her Twitter account. Unsurprisingly, Twitter banned her account for violating its rules on spreading medical misinformation.
So, Huber sued Twitter. And she sued the Biden Administration for (allegedly) guiding Twitter’s moderation efforts to target her account for permanent suspension. Huber claimed the administration’s statements and meetings with social media company heads amounted to direct government interference with her right to post dumb bullshit online.
The district court tossed this lawsuit in March of this year. Huber’s claims — which included the bizarre allegation that Section 230 was unconstitutional — all failed. The court said Huber offered no plausible allegations the government conspired with Twitter to ban her account. It also noted that Huber’s state action allegations raised First Amendment concerns… just not the ones she thought she was raising.
Holding that mere acquiescence by private entities to the government’s encouragement of broad policy is sufficient to establish state action would thereby effectively conscript private actors into service as governmental agents subject to the constraints and obligations of the Constitution. It would substantially obfuscate the line between public and private action under the Constitution….
A broad reading of state action in this context would raise potential First Amendment concerns…Constraining Twitter to First Amendment standards in the exercise of its editorial rights thus itself raises countervailing First Amendment concerns. Accordingly, finding a private entity is a state actor through a claim of conspiracy must require more than a broad brush claim of shared interests.
Huber’s complaint was dismissed with prejudice. As the district court saw it, no amount of amending would result in an actionable claim against Twitter or the Biden Administration. Huber, of course, appealed. And, as Eric Goldman reports, she has lost again.
In the wake of its dismissal of another jawboning case last month, the Ninth Circuit breezily rejects Huber’s appeal in a very brief memorandum opinion showing how poorly the plaintiff’s arguments resonated with the judges:
“the complaint does not contain any nonconclusory allegations plausibly showing an agreement between Twitter and the government to violate her constitutional rights. Contrary to Huber’s argument, the two media reports on which she draws do not plausibly show that Twitter agreed to suspend her account on the government’s behalf.”
“Huber’s allegations do not “tend to exclude the possibility” of the alternative explanation that Twitter, in suspending her account, was independently enforcing Huber’s violation of Twitter’s Terms of Service. Indeed, the complaint contains no allegations that Huber did not violate Twitter’s Terms of Service or that Twitter would not have suspended Huber’s account absent the alleged conspiracy.”
The Unruh Act claim fails because Huber is an Arizona resident.
The Ninth Circuit has had some pretty weird ideas about Section 230 in recent months, but nothing in Huber’s lawsuit impresses the court enough to encourage her to pursue this severely flawed action against Twitter and the federal government. It only takes the Ninth Circuit four pages to affirm [PDF] the lower court’s dismissal, leaving Huber with one option: approaching the Supreme Court and hoping Clarence Thomas is able to convince the rest of the justices Section 230 shouldn’t apply to the moderation of content he prefers to consume.
Unfortunately, a string of losses in court rarely deters performative lawsuits or opportunistic lawyers. The stupidity will undoubtedly continue for years to come, if only to allow fantasists like Huber to (self) fulfill their “censorship” conspiracy theories.
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