FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGAN O’HANDLEY, 

Plaintiff-Appellant, 

 v. 

SHIRLEY WEBER; TWITTER INC., 

a Delaware corporation; NATIONAL 

ASSOCIATION OF SECRETARIES 

OF STATE, a professional nonprofit 

organization, 

Defendants-Appellees.

No. 22-15071 

D.C. No. 3:21-cv07063-CRB 

OPINION

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted December 7, 2022

San Francisco, California

Filed March 10, 2023

Before: Susan P. Graber, Evan J. Wallach,* and Paul J. 

Watford, Circuit Judges.

Opinion by Judge Watford

* The Honorable Evan J. Wallach, United States Circuit Judge for the 

U.S. Court of Appeals for the Federal Circuit, sitting by designation.
2 O’HANDLEY V. WEBER

SUMMARY**

Civil Rights

The panel affirmed the district court’s order dismissing 

plaintiff’s federal constitutional claims and declining to 

exercise supplemental jurisdiction over a state law claim in 

an action brought pursuant to 42 U.S.C. § 1983 alleging that 

the social media company Twitter Inc., and California’s 

Secretary of State, Shirley Weber, violated plaintiff’s 

constitutional rights by acting in concert to censor his speech 

on Twitter’s platform. 

Plaintiff alleged that the Secretary of State’s office 

entered into a collaborative relationship with Twitter in 

which state officials regularly flagged tweets with false or 

misleading information for Twitter’s review and that Twitter 

responded by almost invariably removing the posts in 

question. Plaintiff further alleged that, after a state official 

flagged one of his tweets as false or misleading, Twitter 

limited other users’ ability to access his tweets and then 

suspended his account, ostensibly for violating the 

company’s content-moderation policy. 

The panel agreed with the district court’s determination 

that Twitter’s interactions with state officials did not 

transform the company’s enforcement of its contentmoderation policy into state action. The panel held that 

Twitter’s content-moderation decisions did not constitute 

state action because (1) Twitter did not exercise a stateconferred right or enforce a state-imposed rule under the first 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
O’HANDLEY V. WEBER 3

step of the two-step framework set forth in Lugar v. 

Edmondson Oil Co., 457 U.S. 922 (1982); and (2) the 

interactions between Twitter and the Secretary of State’s 

Office of Elections Cybersecurity did not satisfy either the 

nexus or the joint action tests under the second step. The 

panel concluded that its resolution of this issue was 

determinative with respect to plaintiff’s claims under § 1983 

because each of those claims required proof of state 

action. Plaintiff’s claim under 42 U.S.C. § 1985 also failed 

because the test for proving a conspiracy between a private 

party and the government to deprive an individual of 

constitutional rights under § 1985 tracked the inquiry under 

the conspiracy formulation of the joint action test. 

The panel held that plaintiff had standing to seek 

injunctive relief against Secretary Weber and that, even 

though the Secretary was not responsible for Twitter’s 

content-moderation decisions, state action existed insofar as 

officials in her office flagged plaintiff’s November 12, 2020, 

post. Limiting its review to those actions, the panel 

nevertheless affirmed the district court’s dismissal of 

plaintiff’s federal claims under Federal Rule of Civil 

Procedure 12(b)(6) because the Secretary’s office did not 

engage in any unconstitutional act. 

Having properly dismissed plaintiff’s federal claims 

with prejudice, the district court did not abuse its discretion 

when it declined to exercise supplemental jurisdiction over 

plaintiff’s remaining claim under the California 

Constitution. 
4 O’HANDLEY V. WEBER

COUNSEL

Karin M. Sweigart (argued) and Harmeet K. Dhillon, 

Dhillon Law Group Inc., San Francisco, California; Ronald 

D. Coleman, Dhillon Law Group Inc., Newark, New Jersey; 

for Plaintiff-Appellant. 

Ari Holtzblatt (argued), Patrick J. Carome, and Susan M. 

Pelletier, Wilmer Cutler Pickering Hale and Dorr LLP, 

Washington, D.C.; Emily Barnet and Rishita Apsani, 

Wilmer Cutler Pickering Hale and Dorr LLP, New York, 

New York; Felicia H. Ellsworth, Wilmer Cutler Pickering 

Hale and Dorr LLP, Boston, Massachusetts; David C. 

Marcus, Wilmer Cutler Pickering Hale and Dorr LLP, Los 

Angeles, California; Thomas G. Sprankling, Wilmer Cutler 

Pickering Hale and Dorr LLP, Palo Alto, California; for 

Defendant-Appellee Twitter Inc.

Anna Ferrari (argued), Deputy Attorney General; Paul Stein, 

Supervising Deputy Attorney General; Thomas S. Patterson, 

Senior Assistant Attorney General; Rob Bonta, Attorney 

General of California; Office of the California Attorney 

General; San Francisco, California; Melissa Muller, 

Certified Law Student, Yale Law School, New Haven, 

Connecticut; Andrew Albright, Certified Law Student, 

University of California Berkeley Law School, Berkeley, 

California; for Defendant-Appellee California Secretary of 

State Dr. Shirley N. Weber.

Christine M. Wheatley and Don Willenburg, Gordon Rees 

Scully Mansukhani LLP, Oakland, California, for 

Defendant-Appellee National Association of Secretaries of 

State.
O’HANDLEY V. WEBER 5

David A. Greene and Mukund Rathi, Electronic Frontier 

Foundation, San Francisco, California, for Amicus Curiae 

Electronic Frontier Foundation.

OPINION

WATFORD, Circuit Judge: 

Rogan O’Handley contends that the social media 

company Twitter Inc. and California’s Secretary of State, 

Shirley Weber, violated his constitutional rights by acting in 

concert to censor his speech on Twitter’s platform. He 

alleges that the Secretary of State’s office entered into a 

collaborative relationship with Twitter in which state 

officials regularly flagged tweets with false or misleading 

information for Twitter’s review and that Twitter responded

by almost invariably removing the posts in question. 

O’Handley further alleges that, after a state official flagged 

one of his tweets as false or misleading, Twitter limited other 

users’ ability to access his tweets and then suspended his 

account, ostensibly for violating the company’s contentmoderation policy. 

The district court determined that Twitter’s interactions 

with state officials did not transform the company’s 

enforcement of its content-moderation policy into state 

action. We agree with that conclusion and, accordingly, 

affirm the dismissal of O’Handley’s federal claims against 

Twitter, as each of those claims requires proof either that 

Twitter was a state actor or that it conspired with state actors 

to deprive O’Handley of his constitutional rights. We also

affirm the dismissal of O’Handley’s claims against Secretary

of State Weber because her office did not violate federal law
6 O’HANDLEY V. WEBER

when it notified Twitter of tweets containing false or 

misleading information that potentially violated the 

company’s content-moderation policy.

I

At the time of the events giving rise to this lawsuit, 

Twitter was a social media company with more than 300

million active users. The company had adopted and was 

enforcing a set of policies, called the Twitter Rules, 

governing what its users could post on the platform. These

rules were publicly available on the company’s website, and 

all Twitter users had to agree to comply with them as a 

condition of using the service. 

The portion of the Twitter Rules relevant to this appeal—

known as the Civic Integrity Policy—informed users that 

they “may not use Twitter’s services for the purpose of 

manipulating or interfering in elections or other civic 

processes.” This prohibition covered statements that “could 

undermine faith in the process itself, such as unverified 

information about election rigging, ballot tampering, vote 

tallying, or certification of election results.” The Civic 

Integrity Policy warned users that Twitter would remove 

posts that violated the policy’s terms and that the company 

would suspend repeat violators. 

Given the large volume of posts on its platform, Twitter 

was unable to review every tweet for compliance with its

Civic Integrity Policy. Recognizing this reality, Twitter

created several channels that enabled outside actors to assist 

in enforcement of the policy by reporting suspected 

violations. For example, ordinary Twitter users could report 

violations on the platform by clicking on the “Report Tweet” 

icon and selecting the option “[i]t’s misleading about a 

political election or other civic event.” A limited number of 
O’HANDLEY V. WEBER 7

government agencies and civil society groups also had

access to an expedited review process through what Twitter

called its Partner Support Portal. After an approved partner 

flagged a tweet through the Portal, Twitter’s content 

moderators reviewed the post and decided whether remedial 

action was warranted. Twitter granted Portal access to 

election officials in at least 38 States, including California’s 

Secretary of State.

In 2018, California formed the Office of Elections

Cybersecurity (OEC) within the Secretary of State’s office 

“[t]o monitor and counteract false or misleading information 

regarding the electoral process that is published online or on 

other platforms and that may suppress voter participation or 

cause confusion and disruption of the orderly and secure 

administration of elections.” Cal. Elec. Code § 10.5(b)(2). 

The OEC has stated that, to fulfill its mission, it prioritizes

“working closely with social media companies to be 

proactive so when there’s a source of misinformation, we 

can contain it.” 

In the aftermath of the 2020 election, the OEC touted that 

it had flagged for Facebook and Twitter nearly “300 

erroneous or misleading social media posts” and that “98 

percent of those posts were promptly removed for violating 

the respective social media compan[ies’] community 

standards.” Former Secretary of State Alex Padilla similarly

noted that the OEC “worked in partnership with social media 

platforms to develop more efficient reporting procedures for 

potential misinformation” and that the content the OEC 

reported “was promptly reviewed and, in most cases, 

removed by the social media platforms.” 

O’Handley is one of the Twitter users whose posts the 

OEC flagged. As alleged in his complaint, O’Handley is a
8 O’HANDLEY V. WEBER

licensed attorney who makes his living as a political 

commentator, including on social media where he operates

under the handle “@DC_Draino.” On November 12, 2020, 

just over a week after the presidential election, he posted the 

following tweet on his Twitter account:

Audit every California ballot

Election fraud is rampant nationwide and we 

all know California is one of the culprits

Do it to protect the integrity of that state’s 

elections

Five days later, an unidentified member of the OEC

allegedly sent the following message to Twitter through the 

Partner Support Portal:

Hi, We wanted to flag this Twitter post: 

https://twitter.com/DC_Draino/status/12370

73866578096129 From user @DC_Draino. 

In this post user claims California of being a 

culprit of voter fraud, and ignores the fact that 

we do audit votes. This is a blatant disregard 

to how our voting process works and creates 

disinformation and distrust among the 

general public.

O’Handley does not allege that the OEC communicated with 

Twitter about him on any other occasion. But based on past 

communications between the OEC and Twitter regarding 

other users, he alleges that the message constituted a request 

that Twitter “take down” his post from its platform. 

O’Handley further alleges that, on or about the same day that 

Twitter received the OEC’s message, the company (1) 
O’HANDLEY V. WEBER 9

appended a warning label to his tweet stating that the tweet’s 

election fraud claim was “disputed,” (2) limited other users’ 

ability to access and interact with his tweet, and (3) assessed 

a “strike” against his account. O’Handley asserts that this 

was Twitter’s first disciplinary action against him and that

the company heavily scrutinized his activity on the platform

thereafter. 

The increased scrutiny that O’Handley allegedly faced

aligned with a broader change in Twitter’s policy around that 

time. In the aftermath of the January 6, 2021, attack on the 

U.S. Capitol, the company revamped its Civic Integrity 

Policy to “aggressively increase . . . enforcement action” 

against “misleading and false information surrounding the 

2020 US presidential election.” As part of this reform, 

Twitter instituted a five-strike protocol under which it would 

impose progressively harsher sanctions with each 

subsequent violation of the policy. If a user received a fifth

strike, Twitter would permanently suspend that user’s 

account.

Under the terms of this new protocol, Twitter allegedly 

issued four additional strikes against O’Handley in early 

2021 in response to his repeated posts insinuating that the 

2020 presidential election had been rigged. Upon issuing a 

fifth strike against O’Handley in late February 2021, Twitter

informed him that his account had been permanently 

suspended for “violating the Twitter Rules . . . about 

election integrity.”

Four months after his suspension, O’Handley filed this 

action against Twitter, Secretary of State Weber in her 

official capacity, and several other defendants. Asserting 

claims under 42 U.S.C. § 1983, O’Handley alleged that the 

defendants violated the First Amendment, as well as the 
10 O’HANDLEY V. WEBER

Equal Protection and Due Process Clauses of the Fourteenth 

Amendment, by censoring his political speech based on its 

content and viewpoint and by removing him from Twitter’s 

platform. In addition, he alleged that the defendants 

conspired to interfere with the exercise of his First and 

Fourteenth Amendment rights in violation of 42 U.S.C. 

§ 1985 and that their conduct violated the California 

Constitution’s Liberty of Speech Clause. Finally, he 

asserted a claim under 42 U.S.C. § 1983 alleging that 

California Elections Code § 10.5—the provision defining

the OEC’s mission—is unconstitutionally vague.

The defendants moved to dismiss O’Handley’s action 

under Federal Rule of Civil Procedure 12(b)(1) and (b)(6). 

The district court granted the motions. With respect to the 

claims against Twitter, the court held that the federal 

constitutional claims failed as a matter of law because 

Twitter is not a state actor and that its interactions with the 

OEC did not transform it into a state actor. It also held that 

O’Handley had not plausibly alleged that Twitter conspired 

with California officials to violate his constitutional rights. 

As to Secretary of State Weber, the court concluded that 

O’Handley’s federal claims failed for three reasons: (1) he 

lacked standing to sue because his injuries were not fairly 

traceable to the Secretary’s actions; (2) he failed to plausibly 

allege state action; and (3) he failed to allege facts plausibly 

stating claims upon which relief could be granted. The 

district court dismissed the federal claims against the other 

defendants and then declined to exercise supplemental

jurisdiction over the remaining state law claim. Following 

entry of final judgment, O’Handley appealed.

On appeal, O’Handley challenges only the dismissal of 

his claims against Twitter and Secretary of State Weber. We 
O’HANDLEY V. WEBER 11

address the claims against those two defendants in turn, 

beginning with Twitter. 

II

As a private company, Twitter is not ordinarily subject 

to the Constitution’s constraints. See Prager University v. 

Google LLC, 951 F.3d 991, 995–99 (9th Cir. 2020). 

Determining whether this is one of the exceptional cases in 

which a private entity will be treated as a state actor for 

constitutional purposes requires us to grapple with the state 

action doctrine. This area of the law is far from a “model of

consistency,” Lebron v. National Railroad Passenger Corp., 

513 U.S. 374, 378 (1995) (citation omitted), due in no small 

measure to the fact that “[w]hat is fairly attributable [to the 

State] is a matter of normative judgment, and the criteria lack 

rigid simplicity,” Brentwood Academy v. Tennessee 

Secondary School Athletic Association, 531 U.S. 288, 295 

(2001). Despite the doctrine’s complexity, this case turns on 

the simple fact that Twitter acted in accordance with its own 

content-moderation policy when it limited other users’ 

access to O’Handley’s posts and ultimately suspended his 

account. Because of that central fact, we hold that Twitter 

did not operate as a state actor and therefore did not violate 

the Constitution. 

We analyze state action under the two-step framework

developed in Lugar v. Edmondson Oil Co., 457 U.S. 922 

(1982). Under this framework, we first ask whether the 

alleged constitutional violation was caused by the “exercise 

of some right or privilege created by the State or by a rule of 

conduct imposed by the State or by a person for whom the 

State is responsible.” Id. at 937. If the answer is yes, we

then ask whether “the party charged with the deprivation [is] 

a person who may fairly be said to be a state actor.” Id. 
12 O’HANDLEY V. WEBER

A

O’Handley’s claims falter at the first step. Twitter did 

not exercise a state-created right when it limited access to 

O’Handley’s posts or suspended his account. Twitter’s right 

to take those actions when enforcing its content-moderation 

policy was derived from its user agreement with O’Handley, 

not from any right conferred by the State. For that reason, 

O’Handley’s attempt to analogize the authority conferred by 

California Elections Code § 10.5 to the “procedural scheme” 

in Lugar is wholly unpersuasive. Id. at 941. Lugar involved 

a prejudgment attachment system, created by state law, that 

authorized private parties to sequester disputed property. Id. 

Section 10.5, by contrast, does not vest Twitter with any

power and, under the terms of the user agreement to which 

O’Handley assented, no conferral of power by the State was 

necessary for Twitter to take the actions challenged here.1

Nor did Twitter enforce a state-imposed rule when it 

limited access to O’Handley’s posts and suspended his 

account for “violating the Twitter Rules . . . about election 

integrity.” As the quoted message that Twitter sent to 

O’Handley makes clear, the company acted under the terms 

of its own rules, not under any provision of California law. 

That Twitter and Facebook allegedly removed 98 percent of 

1 The district court determined that Twitter has not only the power to 

control the content posted on its platform but also a First Amendment 

right to do so. Whether social media companies’ content-moderation 

decisions are constitutionally protected exercises of editorial judgment 

has divided our sister circuits recently. See NetChoice, LLC v. Attorney 

General of Florida, 34 F.4th 1196 (11th Cir. 2022), petition for cert. 

docketed, No. 22-277 (U.S. Sept. 23, 2022); NetChoice, LLC v. Paxton, 

49 F.4th 439 (5th Cir. 2022), petition for cert. docketed, No. 22-555 

(U.S. Dec. 19, 2022). We need not reach that constitutional issue to 

resolve this case. 
O’HANDLEY V. WEBER 13

the posts flagged by the OEC does not suggest that the 

companies ceded control over their content-moderation 

decisions to the State and thereby became the government’s 

private enforcers. It merely shows that these private and 

state actors were generally aligned in their missions to limit 

the spread of misleading election information. Such

alignment does not transform private conduct into state 

action.

B

Under the original formulation of the Lugar framework,

O’Handley’s failure to satisfy the first step would have been

fatal to his attempt to establish state action. More recent 

cases, however, have not been entirely consistent on this 

point. We have refused to apply the two-step framework

rigidly, and we have suggested that the first step may be

unnecessary in certain contexts. See Mathis v. Pacific Gas

& Electric Co., 75 F.3d 498, 503 n.3 (9th Cir. 1996)

(evaluating only the second step of the Lugar framework to 

determine whether a private party operated as a state actor). 

Given this lack of clarity, we address the framework’s 

second step for the sake of completeness. Nevertheless, our 

analysis of the first step makes it much less likely that 

O’Handley can satisfy the second because the two steps are 

united in a common inquiry into “whether the defendant has 

exercised power possessed by virtue of state law and made 

possible only because the wrongdoer is clothed with the 

authority of state law.” Pasadena Republican Club v. 

Western Justice Center, 985 F.3d 1161, 1167 (9th Cir. 2021)

(citation omitted). 

The second step of the Lugar framework asks whether 

“the party charged with the deprivation [is] a person who 

may fairly be said to be a state actor.” Lugar, 457 U.S. at 
14 O’HANDLEY V. WEBER

937. The Court in Lugar outlined four tests to determine the 

answer to that question: (1) the public function test, (2) the

state compulsion test, (3) the nexus test, and (4) the joint 

action test. Id. at 939. O’Handley relies only on the nexus 

and joint action tests. We conclude that neither is satisfied

here. 

Nexus Test. There are two different versions of the nexus 

test. The first (and less common) formulation asks whether 

there is “pervasive entwinement of public institutions and 

public officials in [the private actor’s] composition and 

workings.” Brentwood Academy, 531 U.S. at 298. In 

applying this version of the test, we look to factors such as 

whether the private organization relies on public funding, 

whether it is composed mainly of public officials, and 

whether those public officials “dominate decision making of 

the organization.” Villegas v. Gilroy Garlic Festival 

Association, 541 F.3d 950, 955 (9th Cir. 2008) (en banc). 

Twitter lacks all of those attributes, so O’Handley cannot 

show that Twitter is a state actor under this first version of 

the nexus test. 

The second version asks whether government officials

have “exercised coercive power or [have] provided such 

significant encouragement, either overt or covert, that the

choice must in law be deemed to be that of the State.” Blum 

v. Yaretsky, 457 U.S. 991, 1004 (1982). One circumstance

in which this version of the test will be satisfied is when 

government officials threaten adverse action to coerce a 

private party into performing a particular act. For example, 

we had no trouble finding the nexus test satisfied when a 

deputy county attorney threatened to prosecute a regional 

telephone company if it continued to carry a third party’s 

dial-a-message service. See Carlin Communications, Inc. v. 

Mountain States Telephone & Telegraph Co., 827 F.2d 
O’HANDLEY V. WEBER 15

1291, 1295 (9th Cir. 1987). No equivalent threat by any 

government official is present in this case. O’Handley has 

alleged that an OEC official flagged one of his tweets and,

at most, requested that Twitter remove the post. This 

request, which Twitter wasfree to ignore, is far from the type 

of coercion at issue in Carlin. 

This second version of the nexus test can also be satisfied 

when certain forms of government encouragement are 

present. The critical question becomes whether the 

government’s encouragement is so significant that we 

should attribute the private party’s choice to the State, out of 

recognition that there are instances in which the State’s use

of positive incentives can overwhelm the private party and 

essentially compel the party to act in a certain way. 

However, nothing of the sort is present here. The OEC 

offered Twitter no incentive for taking down the post that it 

flagged. Even construing the facts alleged in the light most 

favorable to O’Handley, the OEC did nothing more than 

make a request with no strings attached. Twitter complied

with the request under the terms of its own contentmoderation policy and using its own independent judgment.2 

A similar logic exists in our First Amendment cases. In 

deciding whether the government may urge a private party

2 When articulating this version of the nexus test in Blum, 457 U.S. at 

1008, the Supreme Court first suggested that government encouragement 

will be insufficient for state action purposes if the private party later 

makes the challenged decision based on its own independent judgment. 

Although we have since clarified that a single act of independent

judgment does not fully insulate a private party from constitutional 

liability when the party is otherwise deeply intertwined with the 

government, see Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 

748–55 (9th Cir. 2020), for reasons described below we also do not see 

the high degree of entwinement needed for state action in this case. 
16 O’HANDLEY V. WEBER

to remove (or refrain from engaging in) protected speech, we

have drawn a sharp distinction between attempts to convince

and attempts to coerce. Particularly relevant here, we have 

held that government officials do not violate the First 

Amendment when they request that a private intermediary 

not carry a third party’s speech so long as the officials do not 

threaten adverse consequences if the intermediary refuses to

comply. See American Family Association v. City & County 

of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002); 

accord Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 

2003). This distinction tracks core First Amendment 

principles. A private party can find the government’s stated 

reasons for making a request persuasive, just as it can be 

moved by any other speaker’s message. The First 

Amendment does not interfere with this communication so 

long as the intermediary is free to disagree with the 

government and to make its own independent judgment

about whether to comply with the government’s request. 

Like the Tenth Circuit, we see no reason to draw the state 

action line in a different place. See VDARE Foundation v. 

City of Colorado Springs, 11 F.4th 1151, 1160–68 (10th Cir. 

2021) (applying the First Amendment’s dichotomy between 

coercion and persuasion to determine that the plaintiff had

not alleged a sufficient nexus for state action). 

In this case, O’Handley has not satisfied the nexus test 

because he has not alleged facts plausibly suggesting that the 

OEC pressured Twitter into taking any action against him. 

Even if we accept O’Handley’s allegation that the OEC’s

message was a specific request that Twitter remove his 

November 12th post, Twitter’s compliance with that request 

was purely optional. With no intimation that Twitter would 

suffer adverse consequences if it refused the request (or 

receive benefits if it complied), any decision that Twitter 
O’HANDLEY V. WEBER 17

took in response was the result of its own independent 

judgment in enforcing its Civic Integrity Policy. As was true 

under the first step of the Lugar framework, the fact that 

Twitter complied with the vast majority of the OEC’s 

removal requests is immaterial. Twitter was free to agree 

with the OEC’s suggestions—or not. And just as Twitter 

could pay greater attention to what a trusted civil society

group had to say, it was equally free to prioritize 

communications from state officials in its review process 

without being transformed into a state actor. 

Joint Action Test. A plaintiff can show joint action either 

“by proving the existence of a conspiracy or by showing that 

the private party was a willful participant in joint action with 

the State or its agents.” Tsao v. Desert Palace, Inc., 698 F.3d 

1128, 1140 (9th Cir. 2012) (citation and internal quotation 

marks omitted). O’Handley has not alleged facts satisfying 

the joint action test under either approach.3

The conspiracy approach to joint action requires the 

plaintiff to show a “meeting of the minds” between the 

government and the private party to “violate constitutional 

rights.” Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). 

O’Handley’s allegations establish, at most, a meeting of the 

minds to promptly address election misinformation, not a 

3 We have held that joint action also “exists where the government 

affirms, authorizes, encourages, or facilitates unconstitutional conduct 

through its involvement with a private party.” Ohno v. Yasuma, 723 F.3d 

984, 996 (9th Cir. 2013). This approach to joint action subsumes the 

nexus test under its banner. Id. at 995 n.13. Although combining the

two tests makes some sense given that they often bleed together, see 

Lugar, 457 U.S. at 937, we analyze them separately here. But to the 

extent Ohno provides an alternative path to establishing joint action, our 

nexus test analysis applies with equal force. 
18 O’HANDLEY V. WEBER

meeting of the minds to violate constitutional rights. There 

is nothing wrongful about Twitter’s desire to uphold the 

integrity of civic discourse on its platform. Nor is there 

anything illicit in seeking support from outside actors, 

including government officials, to achieve this goal. A

constitutional problem would arise if Twitter had agreed to 

serve as an arm of the government, thereby fulfilling the 

State’s censorship goals. As explained above, however, 

O’Handley has not plausibly alleged that Twitter removed 

his posts to advance the OEC’s purported censorship goals

as opposed to Twitter’s own mission of not allowing users 

to leverage its platform to mislead voters.

As to the “willful participant” approach, O’Handley 

contends that Twitter willfully participated in the OEC’s 

efforts to censor political speech online. He points to former 

Secretary of State Padilla’s description of the OEC’s 

“partnership with social media platforms” and to Twitter’s 

creation of the Partner Support Portal to facilitate input from

“select government and civil society partners.” O’Handley 

argues that those allegations of a partnership are sufficient to 

survive a motion to dismiss. We disagree.

For purposes of the state action doctrine, “joint action 

exists when the state has so far insinuated itself into a 

position of interdependence with [the private party] that it 

must be recognized as a joint participant in the challenged 

activity.” Tsao, 698 F.3d at 1140 (citation and internal 

quotation marks omitted). In other words, joint action is 

present when the State “significantly involves itself in the 

private parties’ actions and decisionmaking” in a “complex 

and deeply intertwined process.” Rawson, 975 F.3d at 753. 

This test is intentionally demanding and requires a high 

degree of cooperation between private parties and state 
O’HANDLEY V. WEBER 19

officials to rise to the level of state action. See Franklin v. 

Fox, 312 F.3d 423, 445 (9th Cir. 2002). 

As the Supreme Court has noted, “examples may be the 

best teachers” of what is necessary to meet this demanding 

standard given the variety of relevant facts that may lead to 

an attribution of state action. Brentwood Academy, 531 U.S. 

at 296. In Tsao, there was sufficient joint action when the 

Las Vegas police trained private casino security guards and 

authorized them to issue citations with the force of law. 698 

F.3d at 1140. In Rawson, we held that joint action was 

shown when medical professionals who leased property 

connected to the State’s psychiatric hospital involuntarily 

confined the plaintiff after his arrest, in part based on the 

prosecutor’s “heav[y] involve[ment] in the decisionmaking 

process.” 975 F.3d at 754.

The allegations in O’Handley’s complaint do not give 

rise to a plausible inference of a similar degree of 

entwinement between Twitter’s actions and those of state 

officials. The only alleged interactions are communications

between the OEC and Twitter in which the OEC flagged for 

Twitter’s review posts that potentially violated the 

company’s content-moderation policy. The fact that the

OEC engaged in these communications on a repeated basis

through the Partner Support Portal does not alter the 

equation, especially because O’Handley alleges only one 

such communication regarding him. The Portal offered a 

priority pathway for the OEC to supply Twitter with 

information, but in every case the company’s employees

decided how to utilize this information based on their own 

reading of the flagged posts and their own understanding of 

the Twitter Rules. 
20 O’HANDLEY V. WEBER

The relationship between Twitter and the OEC more 

closely resembles the “consultation and information 

sharing” that we held did not rise to the level of joint action 

in Mathis, 75 F.3d at 504. In that case, PG&E decided to 

exclude one of its employees from its plant after conducting 

an undercover investigation in collaboration with a 

government narcotics task force. Id. at 501. The suspended

employee then sued PG&E for violating his constitutional 

rights under a joint action theory. Id. We rejected his claim

because, even though the task force engaged in consultation 

and information sharing during the investigation, the task 

force “wasn’t involved in the decision to exclude Mathis 

from the plant,” and the plaintiff “brought no evidence 

PG&E relied on direct or indirect support of state officials in 

making and carrying out its decision to exclude him.” Id. at 

504.

The same is true here. The OEC reported to Twitter that 

it believed certain posts spread election misinformation, and

Twitter then decided whether to take disciplinary action 

under the terms of its Civic Integrity Policy. O’Handley 

alleges no facts plausibly suggesting either that the OEC 

interjected itself into the company’s internal decisions to

limit access to his tweets and suspend his account or that the 

State played any role in drafting Twitter’s Civic Integrity 

Policy. As in Mathis, this was an arm’s-length relationship,

and Twitter never took its hands off the wheel. 

In sum, we conclude that Twitter’s content-moderation 

decisions did not constitute state action because (1) Twitter 

did not exercise a state-conferred right or enforce a stateimposed rule under the first step of the Lugar framework,

and (2) the interactions between Twitter and the OEC do not

satisfy either the nexus or the joint action tests under the 

second step. Our resolution of this issue is determinative 
O’HANDLEY V. WEBER 21

with respect to O’Handley’s claims under 42 U.S.C. § 1983 

because each of those claims requires proof of state action. 

See Lugar, 457 U.S. at 928. His claim under 42 U.S.C. 

§ 1985 also fails because the test for proving a conspiracy

between a private party and the government to deprive an 

individual of constitutional rights under § 1985 tracks the

inquiry under the conspiracy formulation of the joint action 

test. See Caldeira v. County of Kauai, 866 F.2d 1175, 1181 

(9th Cir. 1989).4

III

The district court dismissed the federal claims against 

Secretary of State Weber based on a lack of Article III 

standing, the absence of state action, and the failure to state 

a viable claim for relief. We conclude that O’Handley has

standing to seek injunctive relief against Secretary Weber

and that, even though the Secretary was not responsible for 

Twitter’s content-moderation decisions, state action exists 

insofar as officials in her office flagged O’Handley’s 

November 12, 2020, post. Limiting our review to those 

actions, we nevertheless affirm the district court’s dismissal 

of O’Handley’s federal claims under Federal Rule of Civil 

Procedure 12(b)(6).

A

To establish Article III standing to sue, a plaintiff must 

demonstrate that he “(1) suffered an injury in fact, (2) that is 

4 Because we hold that O’Handley did not plausibly allege a meeting of 

the minds to violate any constitutional right, we need not decide whether 

§ 1985 applies in this context. See Bray v. Alexandria Women’s Health 

Clinic, 506 U.S. 263, 267–68 (1993) (noting that § 1985 claims must 

involve “some racial, or perhaps otherwise class-based, invidiously 

discriminatory animus” (citation omitted)).
22 O’HANDLEY V. WEBER

fairly traceable to the challenged conduct of the defendant, 

and (3) that is likely to be redressed by a favorable judicial 

decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). 

It is clear that O’Handley suffered a concrete injury when 

Twitter limited other users’ ability to access his posts and 

then later suspended his account. It is less obvious whether 

those injuries are traceable to the Secretary of State’s 

conduct and whether a court can provide effective injunctive 

relief.

As to traceability, the injuries that O’Handley alleges in 

his complaint—his inability to communicate with his 

followers and pursue his chosen profession as a social media 

influencer—resulted from Twitter’s decision to suspend his 

account in February 2021. That decision is several steps 

removed from the OEC’s flagging of his November 12th 

post three months earlier. In the interim, Twitter had 

increased its enforcement efforts, implemented a new fivestrike protocol, and assessed four additional strikes against 

O’Handley’s account based on other posts that O’Handley 

does not allege the OEC had any role in flagging.

Despite the distance between Secretary Weber’s actions

and O’Handley’s alleged injuries, two overriding factors 

weigh in favor of concluding that his injuries are fairly 

traceable to the Secretary’s actions. First, the traceability 

requirement is less demanding than proximate causation, and

thus the “causation chain does not fail solely because there 

are several links” or because a single third party’s actions

intervened. Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th 

Cir. 2011) (citation and internal quotation marks omitted); 

see also Lexmark International, Inc. v. Static Control 

Components, Inc., 572 U.S. 118, 134 n.6 (2014). It is 

possible to draw a causal line from the OEC’s flagging of the 

November 12th post to O’Handley’s suspension from the 
O’HANDLEY V. WEBER 23

platform, even if it is one with several twists and turns. 

Drawing that line is even easier when we credit, as we must, 

O’Handley’s allegation that Twitter had never imposed any 

disciplinary action against him until the OEC placed his 

account on the company’s radar. Second, O’Handley now 

seeks to broaden the conception of his injuries to include the

limitations that Twitter placed on other users’ ability to 

access his November 12th post. Those limitations also 

represent a concrete injury fairly traceable to the OEC’s 

actions. 

As to redressability, O’Handley sued Secretary Weber in 

her official capacity seeking a permanent injunction stating 

that “the Secretary of State and the OEC may not censor 

speech.” Until recently, it was doubtful whether this relief

would remedy O’Handley’s alleged injuries because Twitter

had permanently suspended his account, and the requested 

injunction would not change that fact. Those doubts

disappeared in December 2022 when Twitter restored his 

account. See @DC_Draino, Twitter (Dec. 16, 2022, 10:35 

AM), 

https://twitter.com/DC_Draino/status/16038210147308011

61?cxt=HHwWkoCwpeWt9cEsAAAA. With the 

redressability issue now resolved in O’Handley’s favor, we 

conclude that he has standing to seek injunctive relief against 

Secretary Weber.

B

We turn next to the state action issue. In accord with our 

analysis above, we agree with the district court that Secretary 

Weber is not responsible for any of Twitter’s contentmoderation decisions with respect to O’Handley. This fact

precludes O’Handley from bringing his claim against 

Secretary Weber under the Due Process Clause for the 
24 O’HANDLEY V. WEBER

deprivation of his property or liberty interests as a social 

media influencer because that grievance arises solely out of 

Twitter’s decisionsto limit access to his posts and to suspend 

his account.5 By contrast, our state action analysis does not 

preclude O’Handley from challenging the Secretary’s own 

conduct in directing the OEC because those acts are, by 

definition, acts of the State. Thus, the state action 

requirement does not bar O’Handley from proceeding 

against the Secretary on his remaining four federal claims: 

the conspiracy claim under 42 U.S.C. § 1985, the First 

Amendment claim, the Equal Protection Clause claim, and 

his void-for-vagueness challenge to California Elections 

Code § 10.5.

6

C

Turning to the merits, we affirm the district court’s 

dismissal of O’Handley’s claims against Secretary Weber 

under Rule 12(b)(6) because he has failed to state a claim on 

which relief can be granted.

Conspiracy. The conspiracy claim against Secretary

Weber under 42 U.S.C. § 1985 has the same fatal flaw as the

analogous claim against Twitter. As explained above, 

O’Handley has not alleged that Twitter and Secretary Weber 

shared a goal of violating his or anyone else’s constitutional 

5 To the extent O’Handley claims that Secretary Weber interfered with 

his liberty interest in free speech, that claim overlaps entirely with his 

First Amendment challenge and fails for the reasons stated below. 

6 Although the complaint also alleges that Secretary Weber violated the 

California Constitution’s Liberty of Speech Clause, O’Handley now

concedes that he cannot sue the Secretary in her official capacity in 

federal court for violating state law. See Pennhurst State School & 

Hospital v. Halderman, 465 U.S. 89, 106 (1984).
O’HANDLEY V. WEBER 25

rights. There is no unconstitutional conspiracy without this 

shared specific intent. See Caldeira, 866 F.2d at 1181.

First Amendment. O’Handley asserts two theories 

supporting his First Amendment claim against Secretary 

Weber, one alleging that the OEC abridged his freedom of 

speech when the agency pressured Twitter to remove 

disfavored content, and the other alleging that the OEC

engaged in impermissible retaliation against his protected

political expression. O’Handley’s allegations fail to state a 

viable First Amendment claim under either theory. 

The first theory rests on Bantam Books, Inc. v. Sullivan, 

372 U.S. 58 (1963), which held that a State may not compel

an intermediary to censor disfavored speech. Id. at 68–72. 

Bantam Books and its progeny draw a line between coercion 

and persuasion: The former is unconstitutional intimidation 

while the latter is permissible government speech. See 

American Family Association, 277 F.3d at 1125. This line 

holds even when government officials ask an intermediary 

not to carry content they find disagreeable. See id. Here, as 

discussed above, the complaint’s allegations do not 

plausibly support an inference that the OEC coerced Twitter

into taking action against O’Handley. The OEC 

communicated with Twitter through the Partner Support 

Portal, which Twitter voluntarily created because it valued

outside actors’ input. Twitter then decided how to respond 

to those actors’ recommendations independently, in 

conformity with the terms of its own content-moderation 

policy.

O’Handley argues that intimidation is implicit when an 

agency with regulatory authority requests that a private party 

take a particular action. This argument is flawed because the 

OEC’s mandate gives it no enforcement power over Twitter. 
26 O’HANDLEY V. WEBER

See Cal. Elec. Code § 10.5. Regardless, the existence or 

absence of direct regulatory authority is “not necessarily 

dispositive.” Okwedy, 333 F.3d at 344. Agencies are 

permitted to communicate in a non-threatening manner with 

the entities they oversee without creating a constitutional 

violation. See, e.g., National Rifle Association of America v. 

Vullo, 49 F.4th 700, 714–19 (2d Cir. 2022). 

The retaliation-based theory of liability fails as well. To 

state a retaliation claim, a plaintiff must show that: “(1) he 

engaged in constitutionally protected activity; (2) as a result, 

he was subjected to adverse action by the defendant that 

would chill a person of ordinary firmness from continuing to 

engage in the protected activity; and (3) there was a 

substantial causal relationship between the constitutionally 

protected activity and the adverse action.” Blair v. Bethel 

School District, 608 F.3d 540, 543 (9th Cir. 2010) (footnote 

omitted).

O’Handley’s claim falters on the second prong because 

he has not alleged that the OEC took any adverse action

against him. “The most familiar adverse actions are 

exercise[s] of governmental power that are regulatory, 

proscriptive, or compulsory in nature and have the effect of 

punishing someone for his or her speech.” Id. at 544

(citation and internal quotation marks omitted). Flagging a 

post that potentially violates a private company’s contentmoderation policy does not fit this mold. Rather, it is a form 

of government speech that we have refused to construe as

“adverse action” because doing so would prevent 

government officials from exercising their own First 

Amendment rights. See Mulligan v. Nichols, 835 F.3d 983, 

988–89 (9th Cir. 2016). California has a strong interest in 

expressing its views on the integrity of its electoral process. 

The fact that the State chose to counteract what it saw as 
O’HANDLEY V. WEBER 27

misinformation about the 2020 election by sharing its views 

directly with Twitter rather than by speaking out in public 

does not dilute its speech rights or transform permissible 

government speech into problematic adverse action. See

Hammerhead Enterprises, Inc. v. Brezenoff, 707 F.2d 33, 39

(2d Cir. 1983). 

Equal Protection. O’Handley alleges that Secretary 

Weber violated the Fourteenth Amendment’s Equal 

Protection Clause because the OEC targeted conservative 

commentators for special treatment and did not equally

scrutinize liberal critics of the electoral process. Uneven 

enforcement can pose an equal protection issue, see United 

States v. Lopez-Flores, 63 F.3d 1468, 1472 (9th Cir. 1995),

but O’Handley has not alleged facts plausibly supporting his 

speculation of political bias. He does not name any other 

conservative commentators whose speech the OEC 

allegedly targeted or identify any “self-identified political 

liberals” whose false or misleading tweets the OEC allegedly 

declined to flag. A cursory assertion of differential treatment 

unsupported by factual allegations is insufficient to state a 

claim for relief. See Lindsay v. Bowen, 750 F.3d 1061, 

1064–65 (9th Cir. 2014). 

Vagueness. Finally, O’Handley alleges that California 

Elections Code § 10.5 is void for vagueness because the 

statute requires the OEC to “monitor and counteract false or 

misleading information regarding the electoral process” 

without providing a sufficiently concrete definition of what 

the phrase “false or misleading information” means in this 

context. Cal. Elec. Code § 10.5(b)(2). A statute is facially

vague when it “fails to provide a person of ordinary 

intelligence fair notice of what is prohibited, or is so 

standardless that it authorizes or encourages seriously 
28 O’HANDLEY V. WEBER

discriminatory enforcement.” United States v. Williams, 553 

U.S. 285, 304 (2008). 

Section 10.5 does not attempt to prohibit anything (and 

hence raises no fair notice concerns), and it vests no 

government official with enforcement authority that could 

be discriminatorily applied. It is merely a statement of the 

OEC’s general mission. Similar to many unenforceable 

government pronouncements, it is “not amenable to a 

vagueness challenge.” Beckles v. United States, 580 U.S. 

256, 265 (2017). O’Handley’s as-applied challenge also 

fails because Elections Code § 10.5 was never applied 

against him. Twitter instead enforced its own Civic Integrity 

Policy, as it made clear in all of its communications with 

O’Handley. 

* * *

We affirm the district court’s dismissal of all federal 

claims against Twitter because the company was neither a 

state actor nor a co-conspirator with state officials acting 

with the shared goal of violating constitutional rights. We 

affirm the dismissal of all federal claims against Secretary of 

State Weber because her office did not engage in any 

unconstitutional acts. Having properly dismissed 

O’Handley’s federal claims with prejudice, the district court 

did not abuse its discretion when it declined to exercise 

supplemental jurisdiction over his remaining claim under the 

California Constitution. See Lima v. United States 

Department of Education, 947 F.3d 1122, 1128 (9th Cir. 

2020).

AFFIRMED.