The Supreme Court on Tuesday declined to take up a conservative legal group’s bid to revive its lawsuit against California over the secretary of state’s removal of its “misleading” video in the lead-up to the 2020 presidential election.
Judicial Watch claimed in its 2022 lawsuit that an office under California Secretary of State Shirley Weber caused YouTube to remove one of its “election integrity” videos weeks before the contest in violation of the group’s First Amendment rights.
However, lower courts dismissed the complaint. The U.S. Court of Appeals for the Ninth Circuit held that Weber’s conduct amounted to permissible government speech, rejecting the notion promoted by Judicial Watch that the district court failed to consider whether her actions would chill the average person.
Judicial Watch asked the justices to reconsider that finding, which they declined to do so.
The 26-minute video, titled “**ELECTION INTEGRITY CRISIS** Dirty Voter Rolls, Ballot Harvesting & Mail-in-Voting Risks!” was posted to YouTube on Sept. 22, 2020.
Two days later, a member of the Office of Elections Cybersecurity, which reports to Weber, reached out to YouTube asking the company to remove the video, saying it “misleads community members about elections or other civic processes and misrepresents the safety and security of mail-in ballots.”
YouTube removed the video on Sept. 27, according to the state.
Judicial Watch’s lawyers argued in their petition to the court that the federal appeals court erred in its review of the lower court’s decision to toss the case.
They said that the 9th Circuit adopted a “new rule out of whole cloth,” where a court must decide whether a plaintiff has alleged an adverse action before it decides whether an ordinary person would be chilled. That rule stopped the court from considering whether Weber’s conduct would discourage protected speech.
“The ‘chilling effect’ is not, as the Ninth Circuit puts it, ‘irrelevant,’” they wrote. “It is fundamental, serving to protect those of ordinary firmness from retaliatory government action.”
California Attorney General Rob Bonta countered that a message alerting YouTube to a video violating its own policies, leaving the company to make its own moderation decisions, does not amount to retaliation.
“It is not remotely plausible that conveying this message to YouTube would chill a person of ordinary firmness from continuing to post videos on that platform,” Bonta argued to the justices, noting that social media users agree to abide by content moderation policies and know platforms enforce them with suppression.
The state attorney general added that his point is underscored by the fact that Judicial Watch president Tom Fitton himself said in the video that he thought the platform would remove his video.
“Petitioner apparently wants to be exempt from YouTube’s content-moderation policies. But petitioner has not sued YouTube,” Bonta wrote. “Its lawsuit against respondent — even if successful — would not make a real-world difference in its ability to post its videos online.”
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