Colleen Huber v. Joseph R. Biden, Jr., President of the United States, et al.

Petitioner Dr. Colleen Huber sued President Biden (in his official capacity) and Twitter for censoring Dr. Huber’s speech on Twitter critical of the Biden administration’s COVID-19 vaccine policies. To this end, the First Amended Complaint alleges facts to plausibly evidence a conspiracy to have Twitter censor speech critical of the Biden administration’s vaccine policies on behalf of the administration. The Ninth Circuit concluded that there was no state action because the alleged facts and their reasonable inferences did not sufficiently allege a conspiracy (i.e., a meeting of the minds) for Twitter to do that which the Biden administration could not lawfully do itself. Specifically, the panel turned to the Ninth Circuit’s “alternative explanation” rationale to conclude that an alternative explanation (i.e., Twitter acting on its own to enforce its “Terms of Service”) required Petitioner to allege facts tending to exclude the alternative explanation. The questions presented are twofold. • Whether an alternative explanation of nonliability requires additional facts beyond a plausible claim that tend to exclude the alternative explanation pursuant to Rules 8(a) and 12(b)(6). • Whether a conspiracy between the federal government and a social media company to censor protected speech requires more than the reasonable inferences derived from the expressly alleged facts in the First Amended