While giving a fundamental lesson on the First Amendment’s Freedom of Speech clause, the Ninth Circuit upheld the dismissal of a suit by a law student who sought to include the name of an alleged CIA whistleblower in a Facebook post.

A three-judge panel denied the appeal of plaintiff-appellant Cameron Lee Atkinson who had sued Facebook (now Meta Platforms, Inc.) and Mark Zuckerburg, its chairman, CEO and controlling shareholder, for violating his civil rights. Chief Judge Sidney R. Thomas, Circuit Judge M. Margaret McKeown and Donald W. Molloy, U.S. District Judge for the District of Montana, sitting by designation, dismissed all of Atkinson’s claims without leave to amend on November 22.

Dismissal with prejudice means that plaintiff-appellant may not refile the same claim in the same court. The panel concluded the decision did not need oral argument but wrote that their opinion is not appropriate for publication and is not precedent.

Atkinson sued Facebook for denial of his First Amendment right of freedom of speech, as well as a violation of the Communications Decency Act (CDA), an unfair trade practice, and breach of the implied warranty of good faith and fair dealing. The U.S. District Court for the Northern District of California had dismissed all of Atkinson’s claims for failure to state a cause of action, and the Ninth Circuit has now agreed.

The plaintiff argued that Facebook had illegally removed his posts that included the name of Eric Ciaramella, a CIA analyst and whistleblower who had accused then-President Donald Trump of asking Ukraine for help during the 2016 presidential race. This phone call was one of the primary reasons for the Congressional impeachment that took place after Trump became president. Nevertheless, the court quickly dismissed Atkinson’s First Amendment claim, stating, “Unless certain exceptions apply, the First Amendment only restricts government action.” Facebook is clearly a private company and not part of any government.

The judges wrote that they “consider factual findings more rigorously when First Amendment challenges are involved,” but agreed that appellant’s claims were properly dismissed because Atkinson failed to allege enough facts to make Meta Platforms a “government actor.” The constitution states that Congress shall make no law restricting freedom of speech. But Meta Platforms is not part of the government, thus Atkinson lacked a “cognizable legal theory” that would lead to relief.

Atkinson had claimed that the federal government “compelled” Meta Platforms to take certain actions and that it “exercised coercive power” over what he was and was not allowed to post. He argued that Facebook had been performing “a traditional, exclusive public function that made it a government actor.”

But these “allegations of federal (italics in original) coercion do not support the deprivation under color of state law that Atkinson pleaded,” the panel wrote. Rather than accepting the charge that Facebook’s censorship of Atkinson’s posts was government coercion, the panel said that Facebook’s refusal of Atkinson’s posts was “a self-interested business decision.”

Meta Platform operates what it calls a “Transparency Center” that explains subjects it considers when it makes business decisions. Its website says, “The Facebook company recognizes how important it is for Facebook to be a place where people feel empowered to communicate, and we take our role seriously in keeping abuse off the service.” Potential abuses are called “community standards” and include such topics as violence, hate speech, privacy violations, false news and manipulated media.

The panel also noted the lack of proof of any “interdependence or joint action” with any state. Atkinson failed to show the existence of agreements, state participation in Facebook’s governance, or the existence of any financial ties between the privately held company and any government at any level.

The panel next addressed Atkinson’s claims that Meta Platforms violated a section of the CDA. That section forbids any provider of an interactive service to be treated as the publisher…of information provided by another content provider.” Atkinson said he was republishing the alleged whistleblower’s name that had already appeared in tweets by President Trump, members of Congress and Donald Trump Jr., who had also published Ciaramella’s name on the internet.

Despite other publications of the whistleblower’s name, the Ninth Circuit panel stated that there is no private right of action under the CDA. Their opinion said that such a right needed to be created by Congress and thus the “court cannot create one.”

The final reason for upholding the District Court’s dismissal discussed the district court’s denial of Atkinson’s leave to amend his claim under the Connecticut Unfair Trade Practices Act. The panel said this claim covered issues that were the same as other claims and was dismissed for the same reasons.