Social Media Censorship Suit Transferred to Northern District of Calif.

The U.S. District Court for Northern California in San Francisco took possession Thursday of a Nov. 23 pro se lawsuit (docket 3:23-cv-04045) transferred from the Eastern District of Texas that alleges Meta and TikTok violated the Texas code by censoring social media content. TikTok removed the case to the federal court from County Court at Law No. 4 of Collin County, Texas, in November. Attorney plaintiff Paul Davis’ emergency motion to remand was denied.

The social media platform defendants “censored” Davis because of his conservative political viewpoints, in violation of chapter 143A of the Texas code by (1) banning his accounts, (2) restricting his accounts, (3) denying equal access or visibility to his accounts and (4) otherwise discriminating against his expression, said the complaint. Chapter 143A says a social media platform may not censor a user’s expression, or a user’s ability to receive the expression of another person based on the viewpoint of the user or another person, viewpoint represented in a user’s expression or a user’s geographic location in Texas.

In its November notice of removal, TikTok noted the statute Davis cites and others like it are being “heavily litigated around the country,” including at SCOTUS, and chapter 143A is “currently subject to an injunction.” He noted NetChoice v. Paxton (docket 21-51178), where the 5th U.S. Circuit Court of Appeals granted a request from NetChoice and CCIA to keep a Texas social media law from taking effect while a U.S. Supreme Court hearing of the case is pending. The 5th Circuit previously ruled the law doesn’t violate the First Amendment.

Davis alleges he was banned from Facebook and Instagram in January 2021 “for expressing his viewpoints related to the January 6th protests at the US Capitol.” He started new accounts on both platforms in February or March 2021 with the primary purpose of promoting his law firm, said the complaint. “As an employment law specialist, Davis has a lot of knowledge and useful information to share regarding employee rights under Title VII in the context of COVID-19 vaccine mandates in the workplace,” it said.

Davis posted a new video “almost every day” on the topic of vaccine mandates “and other legal topics of importance to political conservatives,” said the complaint. His TikTok account reached over 50,000 by early 2022, and his Instagram account reached over 8,000, it said. Over 90% of his law clients came to him through Instagram and TikTok during this time, said the complaint.

In March 2022, Davis’ accounts “exploded with new followers” when he posted a video showing him opposing a school board president for “violating the First Amendment rights of parents and other community members by targeting them for removal from a school board meeting because of their viewpoints in opposing the existence of sexually explicit and obscene books" available in the district’s libraries, and serving school board vice president Amy Dankel with a lawsuit that's pending in U.S. District Court for Eastern Texas in Sherman. Davis is representing plaintiff Kevin Whitt in that case, Gonzales v. Dankel (docket (docket 4:22-cv-00416).

Davis’ followers on TikTok and Instagram continued to grow “at a steady rate,” but “the conservative viewpoints expressed soon drew the ire of TikTok and Instagram,” said the complaint. In June 2022, his Instagram views fell suddenly “from their consistent viewership of over 900 to under 200 and have remained at that level ever since.” The only explanation for the falloff in followers was that “Meta had put restrictions on Davis’s account by reducing its exposure in their viewership algorithms,” he said.

Davis determined that Meta was “shadowbanning” him by not notifying him that his posts or account had been restricted and denying him equal viewership by reducing visibility of his content to other users. Though his account returned to normal in August 2022, later that month the follower count dropped to “pre-shadowban levels” after he posted a video in which he suggested “it was possible [actress] Anne Heche could have been murdered because of her work related to exposing child sex trafficking.” His account was flagged for posting false information a month later when reporting on COVID-19 “vaccine injuries and the lack of effectiveness of vaccines.”

Around the same time, TikTok began regularly flagging Davis’ video posts for “'community guidelines violations,’ despite the fact that none of Davis’s posts violated any objective community guideline,” said the complaint. TikTok has a provision giving it the right to censor content that “incites hate or violence” or that it deems “'conspiratorial,’ which are obviously subjective standards,” he said.