Twitter is in the news nearly every day these days. In what some have called the “biggest tech story ever,” the media are closely following each new development in Elon Musk’s efforts to buy the hottest “public conversation” website in the world. Now there is good news for Musk or whoever winds up owning the company. When a California lawyer sued Twitter for banning ex-President Trump, the federal District Court dismissed her case without leave to amend. Now, the U.S. Ninth Circuit Court of Appeals has affirmed the dismissal and ruled that because Twitter is a private company, it gets almost free rein to decide what to post.

A three-judge panel of the Ninth Circuit issued a memorandum decision in Maria Rutenburg v. Jack Dorsey, the co-founder and former CEO of Twitter, on May 18. In an opinion not for publication, Circuit Judges William A. Fletcher, M. Margaret McKowan, and Kansas District Court Judge Kathryn H. Fratil, wrote, “The First Amendment’s Free Speech Clause prohibits the government - not a private party - from abridging speech.”

So California lawyer, Trump supporter, frequent tweeter, and January 6 protest participant Maria Rutenburg lost her case because she “failed to state a claim upon which relief can be granted.” The Ninth Circuit dismissed her case for a different reason than the district court. U.S District Court Judge Yvonne Gonzales Rogers of the Northern District of California dismissed Rutenburg’s case for lack of subject-matter jurisdiction, while the Ninth Circuit affirmed the ruling because the plaintiff failed to state a claim that warranted relief.

The Ninth Circuit made it clear they could affirm the district court’s dismissal on “any ground supported by the record.” And here, the record showed that Rutenburg did not state “sufficient facts” to demonstrate any state action. Her complaint also “lacked a cognizable legal theory” or a “sufficient well-pleaded, non-conclusory factual allegation,” the opinion wrote.

Rutenburg, a graduate of Santa Clara Law School and a member of the California Bar since 2007, might not have remembered what she learned or should have learned in constitutional law when she filed her suit and demand for a jury trial in January 2021. Her original complaint alleged that Twitter and Dorsey ‘wrongfully and arbitrarily blocked the public’s ability to speak in a constitutionally-protected public forum.” She said her case was not about Donald Trump, but about her free speech and that of “millions of people across the country who have a First Amendment right to view, discuss, debate, comment, reply and respond” to the former President’s tweets.

In her appeal, the plaintiff also tried an “abuse of authority” argument when she argued that Twitter should not have “moderated Trump’s account.” The Ninth Circuit was not persuaded by this argument either and said Rutenburg’s contention was “of no moment.” The Court said that doctrine “does not apply where, as here, the challenged action is undertaken by a private party rather than a state official.” Twitter’s ban was simply not state action.

In addition, the opinion rejected Rutenburg’s public forum argument when it cited precedent that said, “Moderating speech on the Twitter platform” is not “an activity that only governmental entities have traditionally performed.”

The court next examined Rutenburg’s argument that claimed the district court had abused its discretion when it denied Rutenburg leave to amend. The Ninth Circuit said that Rutenburg had been given “sufficient opportunity to press her opinion in district court.” The Court made its position very clear when it cited one of its own previous decisions that said, “When, as here, “a district court determines that further amendment would be futile,” we will affirm the dismissal “if it is clear, upon de novo review, that the complaint could not be saved by any amendment.””

Furthermore, Rutenburg’s appeal failed to present any additional facts that “altered the foregoing analysis, nor does she advance arguments on appeal demonstrating that her complaints are salvageable.”

If by any unlikely chance this case is granted another leave to amend so it can be granted certiorari by the Supreme Court, one can only hope that they, unlike Rutenburg, remember what they were taught in their first-year constitutional law classes.