Political commentator Rogan O’Handley has asked the U.S. Supreme Court to hear his case regarding a California law that empowers state officials to counteract “misleading” election information on social media platforms.

In 2021, O’Handley filed a lawsuit in a federal district court against California over communications the state had with Twitter alleging that he had posted false information about the 2020 election on Twitter.

He argued that the government’s action of flagging his post violated his right to free expression under the First Amendment.

California countered that it was lawfully communicating its views to social media platforms, which ultimately decided whether to remove the content it deemed unlawful.

O’Handley — who goes by the handle @DC_Draino on the platform — posted a week after the election on Nov. 12, 2020: “Audit every California ballot. Election fraud is rampant nationwide and we all know California is one of the culprits. Do it to protect the integrity of that state’s elections.”

Audit every California ballot

Election fraud is rampant nationwide and we all know California is one of the culprits

Do it to protect the integrity of that state’s elections

— DC_Draino (@DC_Draino) November 13, 2020

The Office of Elections Cybersecurity of then-California Secretary of State Alex Padilla contacted Twitter regarding the post.

“Hi, We wanted to flag this Twitter post [f]rom user @DC_Draino. In this post user claims California of being a culprit of voter fraud, and ignores the fact that we do audit votes,” the office said, according to the lawsuit.

“This is a blatant disregard to how our voting process works and creates disinformation and distrust among the general public,” it added.

O’Handley’s lawsuit said Twitter responded by applying the following label to his tweet: “This claim of election fraud is disputed, and this Tweet can’t be replied to, Retweeted, or liked due to a risk of violence.”

In addition, Twitter suspended O’Handley’s account. The social media platform ultimately suspended him on February 22, 2021, due to additional tweets that the company deemed to be in violation of its policies.

In his January 2022 ruling against O’Handley, U.S. District Judge Charles Breyer of the Northern District of California concluded that O’Handley had failed to demonstrate that California had directly violated his free speech rights by communicating with Twitter its views on his content, and he dismissed the case.

In March, the 9th U.S. Circuit Court of Appeals upheld the decision. While acknowledging it was “possible to draw a causal line from the OEC’s flagging of the November 12th post to O’Handley’s suspension,” the court determined there was no “state action” for O’Handley to dispute under the First Amendment.

The judges added that Twitter “acted under the terms of its own rules, not under any provision of California law,” when it suspended O’Handley.

“That Twitter and Facebook allegedly removed 98 percent of the posts flagged by the OEC does not suggest that the companies ceded control over their content-moderation decisions to the State and thereby became the government’s private enforcers,” they said.

“It merely shows that these private and state actors were generally aligned in their missions to limit the spread of misleading election information,” the judges found.

In June, O’Handley filed an appeal with the Supreme Court. The justices must still determine if they will accept the case.

In his brief, the conservative commentator argued that government officials are as free as anyone else to participate in the modern public square of social media, but “they must do so in consistent with the First Amendment.

“There is no 21st-century exception to the longstanding rule that the government cannot suppress or retaliate against views it doesn’t like,” he contended.

“State officials crossed constitutional lines here, discriminating on the basis of viewpoint and then claiming their own speech warranted more protection than that of private citizens,” O’Handley said.

He noted that Twitter had never censored his speech prior to the OEC flagging his account in California.

Several conservative organizations, including America’s Future, the Free Speech Coalition, and Gun Owners of America, have urged the Supreme Court to hear O’Handley’s case in an amicus brief.

“California pressured Twitter to censor and deplatform [O’Handley] for five tweets challenging the integrity of recent elections,” the brief said.

“California claims to be acting based on the highest motives to preserve faith in elections by protecting the public from hearing false and misleading information,” it said.

“The reality is that government officials censor to protect their power over the People — not to protect the People. In fact, the People would have greater faith in elections if California did not censor criticism about how those elections are being conducted,” the brief said.

The amicus brief noted that California was free to advance its view that the election was conducted with integrity on social media or otherwise, but the problem was “it was covertly conspiring to have a private party censor the opposing view — while implicitly threatening that private party if it failed to cooperate.”

“California denies that it did anything to pressure or coerce Twitter to censor Petitioner,” it said. “The Ninth Circuit analyzed only one California election-related law before concluding that California had no power over Twitter, while ignoring the myriad other criminal and other laws which California could have employed if Twitter had disregarded California’s ‘request.’”

A U.S. district judge in Louisiana issued a preliminary injunction in July prohibiting the federal government from communicating with social media companies.

The Department of Justice filed an appeal with the 5th U.S. Circuit Court of Appeals, which consented to rescind the injunction pending further court proceedings.