Twitter’s Reply in Support of Anti-SLAPP Motion to Strike — Hart v. Facebook

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UNITED STATES DISTRICT COURT · No. 3:22-cv-00737-CRB · Doc. 85 · 2022-05-02 · Docket on CourtListener

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TWITTER'S REPLY ISO MOTION TO STRIKE 
Case No. 3:22-cv-00737-CRB 
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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
SAN FRANCISCO DIVISION 
 
 
 
 
 
 
Willkie Farr & Gallagher LLP 
Jonathan Alan Patchen (SBN 237346) 
jpatchen@willkie.com 
Yuhan Alice Chi (SBN 324072) 
ychi@willkie.com 
One Front Street, 34th Floor 
San Francisco, CA 94111 
Telephone:  (415) 858-7400 
 
Willkie Farr & Gallagher LLP 
Michael Gottlieb (DCBN 974960)* 
mgottlieb@willkie.com 
Meryl Conant Governski (DCBN 1023549)* 
mgovernski@willkie.com 
1875 K Street, N.W. 
Washington, DC 20006-1238 
Telephone:  (202) 303-1442 
*Admitted Pro Hac Vice 
 
 
Attorneys for Defendant 
Twitter, Inc. 
 
 
JUSTIN HART, 
Plaintiff,  
vs.  
FACEBOOK, INC., TWITTER, INC.; VIVEK 
MURTHY in his official capacity as United 
States Surgeon General; JOSEPH R. BIDEN, 
JR., in his official capacity as President of the 
United States; the DEPARTMENT OF 
HEALTH AND HUMAN SERVICES, and the 
OFFICE OF MANAGEMENT AND BUDGET,  
Defendants. 
 
Case No. 3:22-cv-00737-CRB 
 
DEFENDANT 
TWITTER, 
INC.’S 
REPLY IN SUPPORT OF TWITTER’S
MOTION TO STRIKE 
 
 
Judge: Hon. Charles R. Breyer 
Date: May 12, 2022 
Time: 10:00 AM 
Ctrm: Courtroom 6 
 
Action Filed: August 31, 2021 
Trial Date: None 
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Controlling Ninth Circuit and California law make clear that Defendant Twitter Inc.’s 
(“Twitter”) Motion to Strike (Dkt. 72 (“Motion” or “Mot.”)) should be granted.1  Plaintiff’s 
Opposition to the Motion (Dkt. 78 (“Opposition” or “Opp.”)) fails to cite any basis or authority that 
would warrant denying the Motion.  Clear legal authority provides for the application of California’s 
Anti-SLAPP Statute in federal court and confirms that Plaintiff’s Complaint falls within the Statute.  
Because Plaintiff’s Complaint fails to state a claim as a matter of law, Twitter is entitled to prevail 
on its Motion. 
I. 
BINDING 
PRECEDENT 
HOLDS 
THAT 
CALIFORNIA’S 
ANTI-SLAPP 
STATUTE IS APPLICABLE IN FEDERAL COURT. 
 
Plaintiff argues that California’s Anti-SLAPP Statute is “inapplicable” in federal courts 
based on the Supreme Court’s 2010 decision in Shady Grove Orthopedic Assocs., P.A. v. Allstate 
Ins. Co., 559 U.S. 393 (2010).  Plaintiff is wrong. 
Shady Grove did not address an anti-SLAPP statute.  Rather it held that a state statute 
limiting class actions could not stand because it conflicted with the federal rules.  Opp. at 29–30.  
Plaintiff suggests the general principle in Shady Grove precludes application of California’s Anti-
SLAPP statute here.  This assertion is without merit.  The Ninth Circuit has expressly rejected the 
argument that California’s Anti-SLAPP Statute, as implemented in federal court and requested by 
Twitter here, conflicts with the federal rules.  See Planned Parenthood Fed'n of Am., Inc. v. Ctr. for 
Med. Progress, 890 F.3d 828, 833 (9th Cir. 2018), amended, 897 F.3d 1224 (9th Cir. 2018) (“Our 
interpretation eliminates conflicts between California’s anti-SLAPP law’s procedural provisions 
and the Federal Rules of Civil Procedure.”).  Contrary to Plaintiff’s claim that “the applicability of 
that decision is an open question in the Ninth Circuit” because that decision “did not address nor 
cite Shady Grove,” Opp. at 32, the Ninth Circuit examined the Anti-SLAPP statute under the 
operable principle of Shady Grove and trimmed only such portions of the statutory Anti-SLAPP 
procedure that actually conflicted with the federal rules.  Twitter’s Motion adheres to the modified 
Anti-SLAPP procedure set forth in Planned Parenthood.  In doing so, it falls squarely within the 
many Ninth Circuit holdings (including Planned Parenthood) that affirm, apply, or otherwise 
                                                 
1 This Reply adopts and uses the terms as defined in the Motion. 
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approve the application of the Anti-SLAPP Statute in federal court.  Planned Parenthood, 890 F.3d 
at 835; see also, e.g., Clifford v. Trump, 818 F. App’x 746, 747 (9th Cir. 2020), cert. denied, 141 S. 
Ct. 1374 (2021) (“[w]e have long held that analogous procedures in California’s anti-SLAPP law 
apply in federal court”); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 
963, 972 (9th Cir. 1999) (“we hold that the district court erred in finding that subsections (b) and 
(c) of California's Anti–SLAPP statute could not be applied”).  As recently as August 2021, the 
Ninth Circuit rejected the same argument Plaintiff makes here, that the Ninth Circuit should “‘find 
that the anti-SLAPP statute should not apply in federal court.’”  Herring Networks, Inc. v. Maddow, 
8 F.4th 1148, 1154 (9th Cir. 2021) (“we have held that ‘there is no direct collision’ between the 
special motion to strike subsection of the statute and the Federal Rules”). 
Despite clear authority permitting application of Anti-SLAPP in federal authority, Plaintiff 
argues that this Court should ignore binding Ninth Circuit precedent and instead follow a Second 
Circuit decision that found the Anti-SLAPP inapplicable.  Opp. at 30–31 (discussing La Liberte v. 
Reid, 966 F.3d 79 (2d Cir. 2020)).  Aside from the basic premise that this Court is bound by Ninth 
Circuit law, another Court in this District considered and rejected that same argument, explaining: 
Given that our own court of appeals has blessed application of 
California's anti-SLAPP statute, at least to the extent indicated in the 
preceding quote, it would be impermissible for a district court to follow 
verbatim the Second Circuit's opinion which invalidated the entirety 
of the California anti-SLAPP statute in federal court. La Liberte, 966 
F.3d 79. In effect, our own Ninth Circuit has re-written the 
California anti-SLAPP statute to harmonize it with Rules 12 and 56 and 
has effectively eliminated the probability of success language from the 
statute. The Second Circuit did no re-writing and no harmonizing in 
striking down California's anti-SLAPP law. 
 
CoreCivic Inc. v. Candide Grp. LLC, No. C-20-03792-WHA, 2021 WL 1267259, at *5 (N.D. Cal. 
Apr. 6, 2021) (emphasis added); accord Est. of B.H. v. Netflix, Inc., No. 4:21-CV-06561-YGR, 2022 
WL 551701, at *1 n.2 (N.D. Cal. Jan. 12, 2022) (“[t]his Court is bound to apply the anti-
SLAPP statute and its fee provision”) (collecting cases).  This Court should do the same.  
  
 
 
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II. 
PLAINTIFF FAILS TO REBUT THAT HIS LAWSUIT STEMS FROM 
PROTECTED FREE SPEECH ACTIVITY. 
 
As set forth in its Motion, Plaintiff’s Complaint is derived from Twitter’s decision to remove 
the Violative Tweet and temporarily lock his account; such an action relates to an issue of public 
importance (COVID-19 misinformation); and such action was “in furtherance of the exercise” of 
Twitter’s free speech rights.  Plaintiff does not contest the first two points in his Opposition and 
fails to counter the clear support set forth in the Motion that Twitter’s actions were in furtherance 
of its free speech Rights.  Compare Mot. at 8–9, with Opp. at 33–37; Knudsen v. Sprint Commc'ns 
Co., No. C13-04476 CRB, 2016 WL 4548924, at *10 (N.D. Cal. Sept. 1, 2016) (Breyer, J.) (claim 
waived where plaintiff failed to address deficiencies in opposition)).    
Plaintiff asserts that Twitter’s conduct cannot be “in furtherance of the exercise” of “the 
constitutional right of free speech in connection with a public issues or an issue of public interest” 
because Section 425.16(e)(4) requires conduct “similar to an oral or written statement” and does not 
apply to editorial decisions over third-party content published on private platforms.  See Opp. at 34.  
Plaintiff is wrong as a matter of law and none of the cited cases provides support for either 
proposition.  Opp. at 34–35 (discussing Wilson v. Cable News Network, Inc., 7 Cal. 5th 871 (2019) 
and Bonni v. St. Joseph Health Sys., 11 Cal. 5th 995 (2021), and citing FilmOn.com Inc. v. 
DoubleVerify Inc., 7 Cal. 5th 133, 153 (2019)). 
Plaintiff relies on Wilson to argue that Twitter’s editorial control over content published on 
its platform is not an act that “‘facilitates a defendant’s speech rights’” because that case “teaches 
that organizations can discipline the individual bearers of their corporation message” and “no one 
here thinks Hart is bearing” Twitter’s “organizational message.”  Opp. at 34–35 (citing Wilson, 7 
Cal. 5th at 893, 896).  As Plaintiff recognizes, the California Supreme Court in Wilson held that 
§425.16(e)(4) protects conduct that “facilitates expression” (not solely oral or written statements): 
“At a minimum, the subdivision shields expressive conduct—the burning of flags, the wearing of 
armbands, and the like—that, although not a ‘written or oral statement or writing’ (§ 425.16, subd. 
(e)(1)–(3)), may similarly communicate views regarding “matters of public significance[.]”.  
Wilson, 7 Cal. 5th at 893.  The Court held that § 425.16(e)(4) could apply to a claim alleging CNN 
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had discriminatory or retaliatory motives when it terminated Plaintiff for plagiarism, including 
because “the right of a news organization to speak includes the right to exercise editorial control 
and judgment—that is, the right to choose what news it will report and how the news will be 
reported.”  Id. at 894, 898.2   
On its face, Wilson confirms that a private organization facilitates its First Amendment rights 
when it exercises editorial judgment over what content it publishes.  That holding is consistent with 
clear authority noted in Twitter’s Motion—including O’Handley—which holds that entities like 
Twitter have a protected First Amendment right to moderate content posted by third parties.  See 
Mot. at 7–8 (citing cases including Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 257–58 
(1974), Reno v. ACLU, 521 U.S. 844, 870 (1997) and O’Handley v. Padilla, No. 21-cv-07063-CRB, 
2022 WL 93625, at *14 (N.D. Cal. Jan. 10, 2022)).  As this Court explained in O’Handley: “Like a 
newspaper or a news network, Twitter makes decisions about what content to include, exclude, 
moderate, filter, label, restrict, or promote, and those decisions are protected by the First 
Amendment.”  Id. at *14 (emphasis added).  Plaintiff ignores this precedent and attempts to construe 
Wilson as applying only where organizations assert editorial control over its employees as 
“individual bearers of their corporate message.”  Opp. at 35.  Wilson does not espouse such a narrow 
application of § 425.16(e)(4), and Plaintiff does not reconcile the inconsistency between his position 
with the law holding otherwise.3 
Likewise, the Plaintiff’s reliance on Bonni is misplaced.  In that case, the Supreme Court of 
California found § 425.16(e)(4) inapplicable because there was no “connection” between the 
decision of a group of hospitals to discipline a doctor “and their petitioning or speech abilities.”  Id. 
at 1073–74.  Unlike in Bonni, Twitter’s complained-of actions here—removing the Violative Tweet 
                                                 
2 Plaintiff claims that the Ant-SLAPP Motion in Wilson “failed” (Opp. at 35), but relevant to the 
first prong of Anti-SLAPP, the California Supreme Court found that the Defendant had met its 
burden with respect to claims that arose from the termination.  Wilson, 7 Cal. 5th at 898.  
3 Plaintiff’s reliance on the out-of-circuit case Price v. City of New York, 2018 U.S. Dist. LEXIS 
105815, *35–36 (S.D.N.Y. June 25, 2018) provides no support for Plaintiff’s argument.  That case 
did not address whether a private organization has a First Amendment right to control speech on its 
platform.  Rather that case related to whether speech of a third party could be attributed to the 
government for purposes of a public forum analysis.  Id.   
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and locking Plaintiff’s account—are directly tied to its constitutional right to exercise editorial 
judgment over content distributed on its platform.  See Mot. at 7–9.  Nevertheless, Plaintiff asserts 
that Bonni applies here because the “Social Media Defendants are arguing that Hart’s stating a given 
viewpoint means that any action taken in response to that viewpoint, is entitled to equal protection.”  
Opp. at 36.  That argument should be rejected.  Twitter is not arguing that “any action” taken in 
response to Plaintiff Tweet is protected activity; rather, Twitter’s point is that the specific action 
taken (and that Plaintiff challenges) is directly protected by the Anti-SLAPP Statute.  The law 
recognizes an independent constitutional right to exercise editorial control over content a private 
corporation publishes on its platforms, including the right to remove what had been published. Mot. 
at 7-9 4   
Finally, Plaintiff advances a policy-based argument, suggesting that the Court not apply the 
Anti-SLAPP Statute (and, really, its mandatory attorney fee provision), because the moving party 
here is a private corporation, rather than a non-profit corporation or an individual.  Opp. at 36.  The 
Anti-SLAPP Statute does not vary its application based on the resources, nature, or type of party 
who brings an Anti-SLAPP motion.  And courts in this Circuit have granted such motions in favor 
of corporations.  See, e.g. Maloney v. T3Media, Inc., 853 F.3d 1004, 1020 (9th Cir. 2017); Doe v. 
Gangland Prods., Inc., 730 F.3d 946, 950 (9th Cir. 2013); CoreCivic Inc., No. C-20-03792-WHA, 
2021 WL 1267259, at *7. 
                                                 
4 Contrary to Plaintiff’s suggestion, FilmOn.com does not state § 425.16(e)(4) applies only to oral 
or written statements.  To the contrary, that case makes clear that the Section “encompasses conduct 
and speech” of a type “similar to what is referenced in subdivisions e(1) through e(3)”—which 
relate to statements “made before a legislative, executive, or judicial proceeding, or any other 
official proceeding” (§ 425.16(e)(1)),  “in connection with an issue under consideration or review 
by a legislative, executive, or judicial body, or any other official proceeding” (§ 425.16(e)(2)), or  
“in a place open to the public or a public forum in connection with an issue of public interest” (§ 
425.16(e)(3)).  Compare FilmOn.com, 7 Cal. 5th at 145, with Opp. at 34.  Further, FilmOn.com is 
entirely irrelevant here.  In that case, the Court held that Anti-SLAPP did not apply to allegedly 
defamatory statements contained within “confidential reports” that were “exchanged confidentially, 
without being part of any attempt to participate in a larger public discussion.”  Id. at 140.  In contrast, 
Twitter’s alleged conduct relates to public enforcement of its COVID-19 Misleading Information 
Policy to exercise editorial control over content published publicly on its platform on a “topic of 
widespread public interest.”  Mot. at 7–9. 
 
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Twitter’s removal of the Violative Tweet and temporary locking of Plaintiff's account 
qualifies as conduct in furtherance of its First Amendment rights, and Plaintiff in his Opposition 
offers no contrary authority.  Mot. at 7-8.  Plaintiff concedes that his Complaint is derived from that 
decision by Twitter and that such an action related to an issue of public importance.  Id. at 8-9. 
Accordingly, Twitter has met its prima facie burden that the Twitter-related state-law claims satisfy 
the first prong required pursuant to the Anti-SLAPP Statute. 
III. 
PLAINTIFF HAS NOT DEMONSTRATED A PROBABILITY OF SUCCEEDING 
ON THE MERITS. 
 
Plaintiff asserts, without any legal citation, that Twitter “abandon[ed] the ‘probability’ and 
burden-shifting regime” under California’s Anti-SLAPP Statute by acknowledging that the Court 
should apply the Federal Rule of Civil Procedure 12(b)(6) standard.  Opp. at 32.  This assertion is 
wholly without merit.  Twitter is following the procedure set forth by the Ninth Circuit.  As the 
Ninth Circuit’s decision in Herring illustrates, even when applying the Rule 12(b)(6) standard, the 
burden shifts to the plaintiff to “demonstrate a reasonable probability of prevailing” based on the 
pleadings once the defendant meets the prima facie burden of showing the Complaint was based on 
an act in furtherance of a constitutional right.  Herring, 8 F.4th 1148 at 1156–57.   
Here, as set forth in Twitter’s Motion, Twitter clearly demonstrated that Plaintiff’s 
Complaint was based on an act in furtherance of a constitutional right.  Thus, it becomes Plaintiff’s 
burden to demonstrate a likelihood of success.  Plaintiff has not, and cannot, meet that burden.  
Plaintiff argues that his case has “passed the threshold of ‘minimal merit’” based on the arguments 
advanced in the Opposition in response to Twitter’s Motion to Dismiss the Complaint.  Opp. at 44; 
see also Dkt. 70 (“Motion to Dismiss”).  However,  for the reasons outlined in Twitter’s Motion to 
Dismiss and the Reply In Support of the Motion to Dismiss (filed simultaneously with this Reply), 
there is no merit as a matter of law to any of his claims.  Accordingly, the Court should grant 
Twitter’s Motion.  Mot. at 10–12. 
 
 
 
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Dated: May 2, 2022 
 
 
Respectfully submitted, 
 
 
 
By: 
/s/ Jonathan A. Patchen 
 
Jonathan A. Patchen  
Michael Gottlieb 
Meryl Conant Governski 
Yuhan Alice Chi  
 
WILLKIE FARR & GALLAGHER 
LLP 
Attorneys for Defendant Twitter, Inc. 
Case 3:22-cv-00737-CRB   Document 85   Filed 05/02/22   Page 8 of 8

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