Petition for Writ of Certiorari — Judicial Watch, Inc., Petitioner v. Shirley Weber, California Secretary of State

Supreme Court briefMar 5, 2025

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APPENDIX TABLE OF CONTENTS

Appendix A – U.S. Court of Appeals for the Ninth

Circuit Mandate in 23-3546

Issued January 30, 2025 .................1a

Appendix B – U.S. Court of Appeals for the Ninth

Circuit Order in 23-3546

Issued December 5, 2024 .................3a

Appendix C – U.S. Court of Appeals for the Ninth

Circuit Memorandum in 23-3546

Issued October 24, 2024 ..................5a

Appendix D – California District Court Judgment

in 2:22-cv-06894-MEMF-JC

Issued February 2, 2024................10a

Appendix E – California District Court Order

in 2:22-cv-06894-MEMF(JCx)

Issued May 22, 2023 ......................12a

Appendix F – Constitutional Provisions ..............37a

Appendix G – Complaint

California District Court

in 2:22-cv-6894

Issued September 23, 2022 ...........39a

APPENDIX A

FILED

JAN 30 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUDICIAL WATCH, INC.,

Plaintiff – Appellant,

SHIRLEY WEBER, in her

official capacity as Secretary

of State of the State of

California,

Defendant – Appellee.

No. 23-3546

D.C. No.

2:22-cv-06894-MEM

F-JC

Central District of

California,

Los Angeles

MANDATE

The judgment of this Court, entered October

24, 2024, takes effect this date.

This constitutes the formal mandate of this

Court issued pursuant to Rule 41(a) of the Federal

Rules of Appellate Procedure.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

APPENDIX B

FILED

DEC 5 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUDICIAL WATCH, INC.,

Plaintiff – Appellant,

SHIRLEY WEBER, in her

official capacity as Secretary

of State of the State of

California,

Defendant – Appellee.

No. 23-3546

D.C. No.

2:22-cv-06894-MEM

F-JC

Central District of

California,

Los Angeles

ORDER

Before: OWENS, SUNG, and SANCHEZ, Circuit

Judges.

The panel has voted to deny the petition for

panel rehearing and the petition for rehearing en

banc. The full court has been advised of the petition

for rehearing en banc, and no judge has requested a

vote on whether to rehear the matter en banc. Fed. R.

App. P. 35. The petition for panel rehearing and en

banc rehearing, Dkt. 39, is DENIED.

APPENDIX C

FILED

OCT 24 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUDICIAL WATCH, INC.,

Plaintiff – Appellant,

SHIRLEY WEBER, in her

official capacity as Secretary

of State of the State of

California,

No. 23-3546

D.C. No.

2:22-cv-06894-MEM

F-JC

MEMORANDUM *

Defendant – Appellee.

Appeal from the United States District Court

for the Central District of California

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

Maame Ewusi-Mensah Frimpong,

District Judge, Presiding

Submitted October 22, 2024 **

San Francisco, California

Before: OWENS, SUNG, and SANCHEZ, Circuit

Judges.

Appellant Judicial Watch, Inc. (“Judicial

Watch”) appeals the district court’s order granting Dr.

Shirley Weber’s (“Secretary”) motion to dismiss for

failure to state a claim. We review a district court’s

decision to grant a motion to dismiss de novo. Doe v.

Internet Brands, Inc., 824 F.3d 846, 849 (9th Cir.

2016). “In doing so, we accept as true all well-pleaded

factual allegations and draw all reasonable inferences

in favor of the plaintiff.” Doe v. Regents of the Univ. of

Cal., 23 F.4th 930, 935 (9th Cir. 2022). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

Judicial Watch alleges that the

Secretary unconstitutionally retaliated against and

regulated its speech in her capacity as the Secretary

of State of California, overseeing the Office of

Elections Cybersecurity (“OEC”). Following a

communication from the OEC to a representative at

YouTube, YouTube removed a video uploaded by

Judicial Watch commenting on election integrity.

This Court’s decision in O’Handley v. Weber controls

and disposes of Judicial Watch’s retaliation and

The panel unanimously concludes this case is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

regulation of speech claims. 62 F.4th 1145 (9th Cir.

2023).

To plead a First Amendment retaliation

claim, a plaintiff must establish that “he was

subjected to adverse action by the defendant that

would chill a person of ordinary firmness from

continuing to engage in the protected activity[.]” Id.

at 1163 (quoting Blair v. Bethel School District, 608

F.3d 540, 543 (9th Cir. 2010)). In O’Handley, the

plaintiff alleged that the Secretary committed an

adverse action when the OEC flagged the plaintiff’s

Twitter post regarding California’s election integrity

as “disinformation,” which led to the plaintiff’s

Twitter account being temporarily suspended. Id. at

1154-55. The Court in O’Handley rejected the

plaintiff’s argument, concluding that the Secretary

did not “t[ake] any adverse action against [plaintiff]”

because the Secretary’s actions were “permissible

government speech.” Id. at 1163-64. The same is true

here.

Judicial Watch’s contention that the district

court erred by failing to examine the chilling effect of

the Secretary’s conduct is misplaced. As the Supreme

Court recently explained, “a plaintiff pursuing a First

Amendment retaliation claim must show, among

other things, that the government took an ‘adverse

action’ in response to his speech that ‘would not have

been taken absent the retaliatory motive.’” Hous.

Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 477 (2022)

(emphasis added) (quoting Nieves v. Bartlett, 587 U.S.

391, 399 (2019)). Any potential chilling effect is

relevant to whether an adverse action is “materially”

adverse, not whether the government action was

adverse in the first place. Id.

Judicial Watch seeks to distinguish the facts of

its case from those in O’Handley by contending that

the Secretary engaged in a broader “course of action”

that cannot be reduced to mere “government speech.”

None of the activities in the Secretary’s “course of

action” meaningfully distinguish Judicial Watch’s

case from O’Handley. As we held in O’Handley, “we

have refused” to construe “[f]lagging a post that

potentially violates a private company’s contentmoderation policy” as an adverse action. 62 F.4th at

1163 (emphasis added). “[W]e have set a high bar

when analyzing whether speech by government

officials is sufficiently adverse to give rise to a First

Amendment retaliation claim.” Mulligan v. Nichols,

835 F.3d 983, 989 (9th Cir. 2016). Judicial Watch

cannot meet this high bar. Accordingly, we affirm the

district court’s dismissal of Judicial Watch’s

retaliation claim.

Judicial Watch’s regulation claim is

foreclosed by O’Handley. Judicial Watch argues that

the Secretary’s enforcement of California Elections

Code § 10.5 (“Section 10.5”) against Judicial Watch is

an unconstitutional regulation of speech. As

O’Handley made clear, Section 10.5 does not confer

any enforcement authority. 62 F.4th at 1164. Judicial

Watch also claims that the Secretary regulated its

speech when she “labeled Judicial Watch’s video as

‘misleading’” and used a “close ‘working relationship’

and ‘dedicated pathway’” with YouTube to have the

video removed. As in O’Handley, the Secretary’s

characterization of the video as misleading is

protected government speech. See id. at 1163

(explaining that “California has a strong interest in

expressing its views on the integrity of its electoral

process”). It is well established that “government

officials do not violate the First Amendment” when

they persuade private intermediaries “not to carry

content they find disagreeable.” Id. at 1158, 1163

(citation omitted).

Finally, YouTube’s decision to remove Judicial

Watch’s video cannot be ascribed to the Secretary

because the Secretary did not coerce YouTube into

taking that action. YouTube’s removal of Judicial

Watch’s video is the result of YouTube applying its

own content policies, not an instance of the Secretary

regulating Judicial Watch’s speech. See id. at 1163.

We affirm the district court’s dismissal of Judicial

Watch’s regulation claim.

AFFIRMED.

10a

APPENDIX D

UNITED STATES DISTRICT COURT

for the

Central District of California

JUDICIAL WATCH, INC.

Plaintiff

SHIRLEY WEBER, in her

official capacity

Defendant

)

Civil Action No. 2:22

-cv-6894-MEMF-JC

JUDGMENT IN A CIVIL ACTION

The court has ordered that (check one):

O the plaintiff (name) __________________ recover

from the defendant (name) __________________

the amount of ________ dollars ($ ______ ), which

includes prejudgment interest at the rate of

______ %, plus post judgment interest at the rate

of ______ % per annum, along with costs.

O the plaintiff recover nothing, the action be

dismissed on the merits, and the defendant

(name) __________________ recover costs from the

plaintiff (name) __________________.

O other:

Secretary Weber’s motion to dismiss is

GRANTED as to all claims. Judicial Watch’s

Complaint is dismissed without leave to amend

11a

pursuant to Rule 12(b)(6). Both the First and

Second Requests for judicial notice are

GRANTED.

This action was (check one):

O tried by a jury with Judge __________________

presiding, and the jury has rendered a verdict.

O tried by Judge __________________ without a jury

and the above decision was reached.

✔

O decided by Judge ___

___Maame Ewusi-Mensah

Frimpong___ on a motion for Motion to Dismiss

Frimpong

(ECF No. 14) and two Requests for Judicial

Notice (ECF Nos. 14-2 and 20-2).

Date: February 2, 2024__

CLERK OF COURT

___________________

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APPENDIX E

UNITED STATES DISTRICT COURT

CENTERAL DISTRICT OF CALIFORNIA

JUDICIAL WATCH, INC.,

Plaintiff,

Case No.: 2:22-cv06894-MEMF(JCx)

ORDER GRANTING

DEFENDANT’S

SHIRLEY WEBER, in her

MOTION TO

official capacity as Secretary DISMISS [ECF NO.

of State of the State of

14]

California,

Defendant.

Before the Court are a Motion to Dismiss (ECF

No. 14) and two Requests for Judicial Notice (ECF

Nos. 14-2 and 20-2) filed by Defendant Shirley Weber.

For the reasons stated herein, the Court hereby

GRANTS the Motion to Dismiss and GRANTS both

Requests for Judicial Notice.

Factual Background 1

Plaintiff Judicial Watch, Inc. (“Judicial

Watch”) is a not-for-profit organization which seeks to

All facts stated herein are taken from the allegations in

Plaintiff Judicial Watch’s Complaint unless otherwise indicated.

ECF No. 1.

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promote transparency, accountability and integrity in

government as well as fidelity to the rule of law. ¶ 1.

As part of its public education mission, Judicial

Watch regularly monitors election law and comments

on and criticizes government actions that, in its view,

undermine election integrity. Id. Judicial Watch

maintains a channel on YouTube, where it has posted

“over 4,200 videos” since 2006. ¶¶ 6-7.

On September 22, 2020, Judicial Watch posted

a 26-minute video on YouTube which is central to the

allegations in this case (the “September 22 Video”). ¶

8. The September 22 Video discussed numerous

purported issues with various states’ election

procedures, including a discussion of California in

particular. ¶ 9. YouTube removed the September 22

Video from YouTube on September 25, 2020. ¶ 11. The

September 22 Video remains unavailable on

YouTube. Id. At the time it was removed, the

September 22 Video had 5,531 views. ¶ 26.

Defendant Dr. Shirley Weber (“Secretary

Weber”) is the Secretary of State of California. ¶ 4.

Secretary Weber is California’s chief elections officer.

Id. Among other responsibilities, Secretary Weber

oversees the Office of Elections Cybersecurity (“the

OEC”), and acts through its officials and employees.

Id. The OEC was established pursuant to California

Elections Code § 10.5 (“Section 10.5”). See Cal. Elec.

Code § 10.5. The OEC’s primary mission includes

monitoring and counteracting “false or misleading

information regarding the electoral process . . . that

may suppress voter participation or cause confusion

and disruption” of elections. Cal. Elec. Code §

14a

10.5(b)(2). As part of this, the OEC maintains a

“Misinformation

Tracking

Sheet”

and

“Misinformation Tracker.” ¶ 13.

The OEC has an interconnected relationship

with YouTube and other social media companies. ¶

27. The OEC has explained that it maintains close

“working relationships” and “dedicated pathways” at

each major social media company, and that it works

closely and proactively with these companies to “keep

misinformation from spreading, take down sources of

misinformation as needed, and promote our accurate,

official election information at every opportunity.” Id.

On September 22, 2020, the OEC identified the

September 22 Video and added it to the OEC’s

“Misinformation

Tracking

Sheet”

and

“Misinformation Tracker,” alongside brief notes

describing certain claims in the video. ¶¶ 13-14. These

notes were not predicted on a finding of fact based on

Section 10.5. ¶ 24. One note in particular described

Judicial Watch as a “conservative group” and noted

how many views the video had at the time of the note.

¶ 14.

On September 24, 2020, an OEC employee

emailed YouTube to report the September 22 Video. ¶

20. The employee explained that she was reporting

the video because “it misleads community members

about elections” and “misinterprets the safety and

security of mail-in ballots.” Id. She then thanked the

recipients for their “time and attention on this

matter.” Id. YouTube responded the next day

(September 25, 2020) and wrote “[w]e will look into

15a

this and get back to you as soon as we can.” ¶ 21. That

same day, Judicial Watch noticed that the September

22 Video had been removed from YouTube. ¶ 22. Two

days later, YouTube wrote again to the OEC

employee, thanking the OEC from “raising this

content to [YouTube’s] attention” and explaining that

it had been removed “for violating [YouTube’s]

policies.” ¶ 23. The email concluded with “Please do

not hesitate to reach out if there are any other

questions or concerns you may have.” Id. The OEC

had been monitoring Judicial Watch’s social media

activity since at least August 2020, and continues to

do so. ¶¶ 29-30. This monitoring has in part been done

through SKDKnickerbocker LLC (SKDK), a

consulting firm that was also advising the Biden

campaign in September 2020. ¶ 29.

Judicial Watch intends to continue using

YouTube as an important means of communicating to

the public regarding election integrity. ¶ 31.

Procedural History

Judicial Watch filed its Complaint on

September 23, 2023. ECF No. 1. The Complaint

alleges three causes of action: (1) a claim pursuant to

42 U.S.C. § 1983 for violations of the First and

Fourteenth Amendments to the United States

Constitution, (2) a claim pursuant to 42 U.S.C. § 1983

for Unconstitutional Regulation of Speech in violation

of the First and Fourteenth Amendments to the

United States Constitution, and (3) a claim for

violations of the California Constitution. Compl. ¶¶

32-45.

16a

Secretary Weber filed her Motion to Dismiss

(“Motion”) on November 18, 2022. ECF No. 14. She

filed her first Request for Judicial Notice (“First

Request”) alongside that Motion, also on November

18, 2022. ECF No. 14-2. Judicial Watch filed an

Opposition

Secretary

Weber’s

Motion

(“Opposition”) on March 23, 2023. ECF No. 19.

Secretary Weber filed a Reply in support of her

Motion (“Reply”) on April 20, 2023. ECF No. 20. She

filed her second Request for Judicial Notice (“Second

Request”) on April 20, 2023 as well. ECF No. 20-2.

II.

Applicable Law

Secretary Weber brings her Motion pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

The standards for each Rule are discussed below, as

is the standard for a request for judicial notice.

a. Request for Judicial Notice

A court may take judicial notice of facts not

subject to reasonable dispute where the facts “(1) [are]

generally known within the trial court’s territorial

jurisdiction; or (2) can be accurately and readily

determined from sources whose accuracy cannot

reasonably be questioned.” Fed R. Evid. 201(b). Under

this standard, courts may take judicial notice of

“undisputed matters of public record,” but generally

may not take judicial notice of “disputed facts stated

in public records.” Lee v. City of Los Angeles, 250 F.3d

668, 690 (9th Cir. 2001), overruled on other grounds

by Galbraith v. County of Santa Clara, 307 F.3d 1119,

17a

1125−26 (9th Cir. 2002). Moreover, even when

documents are not physically attached to the

complaint, courts may nonetheless consider such

documents if: “(1) the complaint refers to the

document; (2) the document is central to the plaintiff’s

claim; and (3) no party questions the authenticity of

the document.” United States v. Corinthian Colleges,

655 F.3d 984, 999 (9th Cir. 2011); Lee, 250 F.3d at

688.

b. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) (“Rule

12(b)(1)”) allows a party to seek to dismiss a

complaint for lack of subject-matter jurisdiction.

“[S]tanding and ripeness pertain to federal courts’

subject matter jurisdiction” and so “they are properly

raised in a Rule 12(b)(1) motion to dismiss.” Chandler

v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122

(9th Cir. 2010). In the context of a 12(b)(1) motion, the

plaintiff bears the burden of establishing Article III

standing to assert the claims. Id.

Rule 12(b)(1) jurisdictional challenges can be

either facial or factual. Safe Air for Everyone v. Meyer,

373 F.3d 1035, 1039 (9th Cir. 2004). When a motion

to dismiss attacks subject-matter jurisdiction on the

fact of the complaint, the court assumes the factual

allegations in the complaint are true and draws all

reasonable inferences in the plaintiff’s favor. Doe v.

Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009).

Moreover, the standards set forth in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft

v. Iqbal, 556 U.S. 662 (2009), apply with equal force

18a

to Article III standing when it is being challenged on

the face of the complaint. See Terenkian v. Republic of

Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012) (applying

Iqbal). Thus, in terms of Article III standing, the

complaint must allege “sufficient factual matter,

accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 570).

c. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) (“Rule

12(b)(6)”) allows a party to seek to dismiss a

complaint for “failure to state a claim upon which

relief can be granted.” “To survive a motion to dismiss,

a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). “A claim has facial plausibility

when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678. Labels, conclusions, and “formulaic

recitation of a cause of action’s elements” are

insufficient. Twombly, 550 U.S. at 545.

The determination of whether a complaint

satisfies the plausibility standard is a “contextspecific task that requires the reviewing court to draw

on its judicial experience and common sense.” Iqbal,

556 U.S. at 679. Generally, a court must accept the

factual allegations in the pleadings as true and view

them in the light most favorable to the plaintiff. Park

19a

v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017); Lee v.

City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001).

But a court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 555).

As a general rule, leave to amend a dismissed

complaint should be freely granted unless it is clear

the complaint could not be saved by any amendment.

Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire &

Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

III.

The First and Second Requests for

Judicial Notice are Granted

Secretary Weber requested that the Court take

judicial notice of: (1) a transcript of a publiclyavailable video that appears to be a duplicate of the

September 22 Video (see ECF No. 14-1; ECF No. 142); and (2) the plaintiff’s complaint in O’Handley v.

Padilla, the district court case that led to the Ninth

Circuit’s ruling in O’Handley v. Weber (see ECF No.

20-2). Judicial Watch has not objected to either

request. The Court finds that judicial notice is

appropriate for each of these items, and so will grant

both Requests.

First, the video transcript is appropriate for

judicial notice. A court may take judicial notice of

documents not attached to a complaint if: “(1) the

complaint refers to the document; (2) the document is

central to the plaintiff’s claim; and (3) no party

questions the authenticity of the document.”

Corinthian Colleges, 655 F.3d at 999. Here, there can

20a

be little doubt that the content of the September 22

video is referred to in Judicial Watch’s complaint, and

that the content of the September 22 video is central

to Judicial Watch’s claim. See, e.g., Compl. ¶ 12. The

only issue is whether a party might question whether

the transcript is accurate, or whether the transcript

is indeed of a duplicate of the September 22 video. All

indications—including the title, the fact that it came

from a Vimeo account associated with Judicial Watch,

the length, and the content—suggest it is the same

video. The transcript is from a reputable company and

is authenticated. And Judicial Watch had an

opportunity and opted not to oppose the First request

or otherwise object. Accordingly, the Court finds no

party questions the authenticity, and will take

judicial notice of the transcript, which is Exhibit A to

ECF No. 14-1. 2 The First Request is GRANTED.

Second, the complaint from O’Handley v.

Padilla is also appropriate for judicial notice. A court

may take judicial notice of “undisputed matters of

public record,” Lee, 250 F.3d at 690. The complaint in

question is an undisputed matter of public record, and

2 As counsel for Secretary Weber acknowledged at the hearing,

however, the content of the September 22 Video is largely

irrelevant given the well-pleaded allegations in the Complaint

about the nature of the video and the nature of the Secretary’s

assessment of the video as well as the fact that the content does

not appear to contradict any of the allegations in the Complaint.

At best, the content supports Judicial Watch’s allegation of a

possible retaliatory motive, given the implicit criticisms of the

Office of the Secretary of State, the assertions that “the left

wants to be able to steal elections,” and the warning that the

video might be “censored . . . by YouTube.” See generally Exhibit

A to ECF No. 14-1.

21a

so the Court will take judicial notice of it. 3 That

document is Exhibit A to ECF No. 20-1. The Second

Request is GRANTED.

IV.

The Motion to Dismiss is Granted

Secretary Weber’s Motion raises two principal

arguments. First, Secretary Weber argues that

Judicial Watch does not have standing, and so the

federal claims in the Complaint should be dismissed

pursuant to Rule 12(b)(1). See Motion at 8-14. Second,

Secretary Weber argues that the alleged conduct did

not constitute a violation of the First Amendment,

and so the Complaint should be dismissed pursuant

to Rule 12(b)(6). See Motion at 14-18.

A recent Ninth Circuit decision—O’Handley v.

Weber—is on all fours with the issues presented in the

Motion to Dismiss and dictates this Court’s result,

namely, that Judicial Watch’s Complaint cannot

survive. 62 F.4th 1145 (9th Cir. 2023). In O’Handley,

the OEC flagged the plaintiff’s Twitter account to

Twitter. Id. at 1154. Twitter then took actions to limit

other users’ ability to see the plaintiff’s posts, and

then suspended the account, before eventually

reinstating it. Id. at 1154, 1162. O’Handley alleged

that he suffered an injury in the form of “inability to

communicate with his followers and pursue his

chosen profession as a social media influencer.” Id. at

3 The only significance of the complaint in O’Handley is that it

demonstrates whether the facts alleged by O’Handley in his

complaint can be distinguished from the facts alleged by Judicial

Watch in its Complaint—and therefore whether the Ninth

Circuit decision in O’Handley controls.

22a

1161. Secretary Weber moved to dismiss on the same

two grounds as she does here: standing pursuant to

Rule 12(b)(1), and failure to state a claim pursuant to

Rule 12(b)(6). Id. at 1155. The Ninth Circuit held that

O’Handley had standing to pursue a cause of action

against Secretary Weber. Id. at 1162. However, the

court held that O’Handley failed to allege that the

defendants “engage[d] in any unconstitutional acts,”

and so dismissed the claim based on Rule 12(b)(6). Id.

at 1164.

Because O’Handley is factually analogous,

recent, and binding, its reasoning controls.

A. Judicial Watch Alleged Facts Sufficient

for Standing

To establish standing, a plaintiff must allege

that he or she has “(1) suffered an injury in fact, (2)

that is fairly traceable to the challenged conduct of

the defendant, and (3) that is likely to be redressed by

a favorable judicial decision.” Spokeo, Inc. v. Robins,

578 U.S. 330, 338 (2016), as revised (May 24, 2016).

The plaintiff bears the burden of establishing

standing. Id.

The Ninth Circuit’s O’Handley decision, which

significantly clarified the issue of standing, was

published after Secretary Weber filed her Motion, but

before Judicial Watch filed its Opposition or Secretary

Weber filed her Reply. See Motion (filed November 18,

2022); O’Handley, 62 F.4th 1145 (published March 10,

2023); Opp. (filed March 23, 2023); Reply (filed April

20, 2023). Judicial Watch argued in its opposition that

23a

O’Handley controlled standing, and suggested that

Secretary Weber should no longer contest the issue in

light of O’Handley. See Opp. at 4 n.2. Secretary Weber

did not address standing at all in her reply. See Reply.

Secretary Weber does not concede standing, as

her counsel explained at the hearing on the Motion on

May 11, 2023. But Secretary Weber only has concerns

with respect to one of the three requirements:

redressability. Specifically, Secretary Weber argues

that Judicial Watch has not plausibly alleged facts

showing it has a fear of future actions by Secretary

Weber or the OEC. But despite this, Secretary

Weber’s counsel acknowledged that O’Handley

appears to control the issue. In light of this

acknowledgement, and Secretary Weber’s failure to

rebut Judicial Watch’s arguments on standing in her

Reply, the Court finds that Secretary Weber has

effectively conceded standing. See John-Charles v.

California, 646 F.3d 1243, 1247 n.4 (9th Cir. 2011)

(deeming issue waived where party “failed to develop

any argument”). Even if she had not, O’Handley

controls—given

Judicial

Watch’s

allegations

regarding its goals and activities, see, e.g., Compl. ¶

31, it has plausibly alleged a fear of future actions.

See 62 F.4th at 1162.

Thus, Judicial Watch has established standing.

B. Judicial Watch Has Not Validly Alleged

Any Violation of the First or Fourteenth

Amendments

24a

As the O’Handley court explained, there are

several ways a plaintiff might validly allege a

constitutional violation based on a government actor

causing a social media company to act. O’Handley, 62

F.4th at 1162. First, a government actor could in some

circumstances be held liable for the company’s

actions. Id. This could occur if the government

“coerce[d]” the company in to “performing a particular

act” by threats of “adverse action,” or if the

government provided “positive incentives” so

powerful that the incentives “essentially compel[led]”

the action. Id. at 1158. Alternatively, the government

actor could be liable if the government and the

company entered into a conspiracy with a shared

“specific intent” to “violate constitutional rights.” Id.

at 1159; 1163. Second, the government actor could be

liable for its own conduct. Id. at 1162. This could occur

if the government coerced the company into censoring

disfavored speech. Id. at 1163. Or, a government actor

could be liable if the government actor took adverse

action in retaliation against protected speech. Id.

The O’Handley court analyzed all of these

possibilities, and found that none applied. 4 Id. at

1164. For the same reasons, none apply to Judicial

Watch’s Complaint: Under the controlling authority

of O’Handley, Judicial Watch has simply failed to

allege any facts that could show a constitutional

violation.

4 The O’Handley court also examined other theories that Mr.

O’Handley alleged, including an equal protection claim and

unconstitutional vagueness. See O’Handley, 62 F.4th at 1164.

Judicial Watch has not alleged these theories or any facts that

might support them, so this Court need not examine them.

25a

Secretary Weber is not Liable for

YouTube’s Decision to Remove

the September 22 Video

The O’Handley court held that “Secretary

Weber is not responsible for any of Twitter’s contentmoderation decisions with respect to O’Handley.” Id.

at 1162. First, the court found that the OEC had not

coerced Twitter. Id. at 1157-58. Crucially, the court

found that O’Handley failed to allege that OEC made

threats against Twitter. Id. at 1157. At most, the OEC

“requested” that Twitter take action, and Twitter

“was free to ignore” this request. Id. at 1158. Second,

the court found that O’Handley’s allegations were not

sufficient for a conspiracy between Twitter and the

government. At most, the allegations suggested a

“meeting of the minds to promptly address election

misinformation, not a meeting of the minds to violate

constitutional rights as would be required.” Id. at

1159.

The same is true here: Secretary Weber and the

OEC are not responsible for any of YouTube’s content

moderation decisions with respect to Judicial Watch,

including YouTube’s decision to remove the

September 22 Video. First, there is no allegation that

would support a finding that the OEC coerced

YouTube. Judicial Watch has not alleged that the

OEC made any threats against YouTube. The emails

between YouTube and the OEC quoted in the

complaint do not show any such threats. See Compl.

¶¶ 20-23. The “interconnected relationship” that

Judicial Watch alleges exists between the OEC and

26a

YouTube is not coercion either. See Compl. ¶ 27. No

allegations support an inference of coercion, all facts

alleged rather appear to be “persuasion” of the sort

that the Ninth Circuit held was permissible. See

O’Handley, 62 F.4th at 1164. Nor is there any

allegation of “positive incentives” that “essentially

compel[led]” YouTube to act as it did. See O’Handley,

62 F.4th at 1158. And second, there is no allegation of

a conspiracy, or of any meeting of the minds with the

intent to deprive Judicial Watch of its constitutional

rights. In sum, Judicial Watch has made no

allegations that could make Secretary Weber or the

OEC liable for YouTube’s removal of the video.

ii.

The OEC’s Conduct was not

Unconstitutional

As explained in O’Handley, even if Secretary

Weber is not liable for YouTube’s acts, this “does not

preclude [a plaintiff] from challenging the Secretary’s

own conduct.” O’Handley, 62 F.4th at 1162. However,

in analyzing her conduct, the O’Handley court found

Secretary Weber not liable. Id. at 1163.

1. There are no Allegations of

Unconstitutional Coercion

First, the court found that O’Handley’s

allegations did not amount to unconstitutional

coercion by Secretary Weber or the OEC. 5 Id. The

This is closely related to the coercion analysis above, but

distinct in that it focuses on the government’s own conduct,

rather than inquiring as to whether the government should be

liable for the coerced conduct of another actor.

27a

United States Supreme Court has held that the

government may not compel an intermediary to

censor disfavored speech. See Bantam Books, Inc. v.

Sullivan, 372 U.S. 58, 68-72 (1963). But as the

O’Handley court explained, there is “a line between

coercion and persuasion,” and mere persuasion is

“permissible government speech.” O’Handley, 62

F.4th at 1163. The OEC’s communications with

Twitter were mere persuasion, and “Twitter then

decided how to respond.” Id. Although O’Handley

argued that “intimidation is implicit,” the court

explained that this is not the case because “the OEC’s

mandate gives it no enforcement power,” and even if

the OEC had enforcement power over Twitter,

“[a]gencies are permitted to communicate in a nonthreatening manner with the entities they oversee

without creating a constitutional violation.” Id.

The same is true here; as discussed above,

there is no allegation in Judicial Watch’s complaint

that would support the inference that the OEC

coerced YouTube to censor disfavored speech. The

emails cited in the Complaint, and the allegations

regarding an “interconnected relationship” amount at

most to persuasion. See Compl. ¶¶ 20-23; ¶ 27. These

allegations are a far cry from the facts of Bantam

Books, where the government officers made “thinly

veiled threats” of prosecution to coerce a private actor.

See 372 U.S. at 68. The persuasion alleged here is

permissible government speech. See O’Handley, 62

F.4th at 1163.

28a

2. The Retaliation Claim Fails

Because There was no Adverse

Action

Second, the O’Handley court held that

O’Handley did not sufficiently allege impermissible

retaliation. Id. Retaliation requires that a plaintiff

show: “(1) he engaged in constitutionally protected

activity; (2) as a result, he was subjected to adverse

action by the defendant that would chill a person of

ordinary firmness from continuing to engage in the

protected activity; and (3) there was a substantial

causal relationship between the constitutionally

protected activity and the adverse action.” Id.

(quoting Blair v. Bethel School District, 608 F.3d 540,

543 (9th Cir. 2010)). The court held that O’Handley

failed on the second prong, because the OEC’s

communications to Twitter expressing concerns about

a post are not an adverse action. Id. As the court

explained, California has “a strong interest in

expressing its views on the integrity of its election

process” and sharing those views directly, rather than

speaking publicly, “does not dilute [California’s]

speech rights or transform permissible government

speech into problematic adverse action.” Id. at 116364.

In the hearing on Mary 11, 2023, Judicial

Watch argued that a combination of four activities by

the OEC amounted to an adverse action. Those

activities were: (1) monitoring Judicial Watch’s

speech (see Compl. ¶¶ 29, 35); (2) making a “false

assessment” that the September 22 video was

misleading (see Compl. ¶¶ 10, 12-15; 26; 28; 25); (3)

29a

failing to make a finding required by law (see Compl.

¶ 24); and (4) using a “close working relationship” and

“dedicated pathways” to cause YouTube to remove the

September 22 Video (see Compl. ¶¶ 20-23, 27).

The O’Handley holding controls here and

requires this Court to find that the OEC’s conduct was

not an adverse action. As the O’Handley court

explained, “[t]he most familiar adverse actions are

exercise[s] of governmental power that are

regulatory, proscriptive, or compulsory in nature and

have the effect of punishing someone for his or her

speech.” O’Handley, 62 F.4th at 1163 (quoting Blair v.

Bethel School District, 608 F.3d 540, 544 (9th Cir.

2010)). “[F]or adverse, retaliatory actions to offend

the First Amendment, they must be of a nature that

would stifle someone from speaking out.” Blair, 608

F.3d at 544. Examples of adverse actions include loss

of a job, revocation of a business license, retaliation

against a prisoner by prison officials, or targeting of

citizens by law enforcement. Id.

Even considered in combination, the four

activities Judicial Watch points to do not constitute

an adverse action. The combined activities are

significantly different from the prototypical examples

listed above, and do not punish Judicial Watch for its

speech. See O’Handley, 62 F.4th at 1163. The

O’Handley court made clear that California

communicating its views directly to a social media

company “does not dilute its speech rights or

transform permissible government speech into

problematic adverse action.” Id. at 1164. And

although this communication was only the final

30a

activity, the additional activities of monitoring social

media posts and making allegedly “false” assessments

do not change the fundamental character of the OEC’s

actions. The sum total of the behavior was that

California formed views and then expressed those

views in a permissible way. Id. at 1164. As to the third

activity, even if Judicial Watch is correct that the

OEC violated California law by failing to make a

finding—a claim this Court cannot hear for the

reasons discussed below—no authority suggests this

violation of the law would transform conduct that

does not otherwise qualify into an adverse action.

Based on the reasoning of the O’Handley court, the

OEC’s conduct was not an adverse action. See id. And

for the same reasons, no individual activity alleged

amounts to adverse action.

Thus, the retaliation claim fails on the second

prong, because—as dictated by O’Handley—no

adverse action against Judicial Watch occurred. The

Court need not reach the remaining prongs.

3. O’Handley

Distinguishable

not

Judicial Watch attempted in its Opposition to

distinguish from O’Handley. See Opp. at 14-15. These

arguments fail, and the Court finds O’Handley

controlling on all issues except where explicitly stated

otherwise.

Judicial Watch argues first that the allegations

here suggest a more direct link between the OEC’s

and YouTube’s actions with respect to Judicial Watch

31a

than between the OEC’s and Twitter’s actions with

respect to O’Handley. See Opp. at 14. This purported

distinction makes no difference, because in both cases

a causal line can be drawn sufficient for standing, and

the holding in O’Handley did not rest on a lack of

causation.

Next, Judicial Watch argues that the specific

actions the OEC took here are different from those in

O’Handley. See Opp. at 14-15. Here, Judicial Watch

argues, it has alleged more than just that the OEC

flagged a video, but also alleged that the OEC

monitored speech, made a “false assessment,” and

violated California law by failing to make a finding.

But O’Handley involved nearly identical allegations

made in different words. O’Handley alleged that the

OEC set out on a program to “quash politicallydisfavored or inconvenient speech” including “speech

implicating [the Secretary of State’s] administration

of elections.” ECF No. 20-1 ¶ 72-77. This is similar to

the allegation of monitoring. Although Judicial Watch

alleges that it specifically was monitored (Compl. ¶

29), while O’Handley involved monitoring of a broad

category of speakers, the Court sees no distinction,

particularly because the O’Handley allegations make

clear that O’Handley’s tweets specifically were caught

up in the monitoring. See ECF No. 20-1 ¶¶ 72-77.

O’Handley also alleged that his tweet was labeled

“misinformation” despite not actually being

misinformation. See ECF No. 20-1 ¶ 74. This is very

similar to Judicial Watch’s allegation of a “false

assessment.” The Ninth Circuit did not find this

allegation relevant to whether there was adverse

action. See O’Handley, 62 F.4th at 1162-63. And

32a

although O’Handley did not make the argument that

the OEC was required to make a finding of fact, he

raised other allegations regarding purported

violations of law by the OEC. See ECF No. 20-1 ¶ 52

(“[the secretary of state] awarded this contract [to

SKDK] despite having no budgetary authority”). And

in any case, if there was any cause of action based on

these purported violations of the law, it would be a

state law claim, which the Court cannot hear for the

reasons described below. Finally, O’Handley too—like

Judicial Watch—alleged and complained of a “close

working relationship” between the social media

company and the OEC. In sum, the purported

differences between O’Handley’s allegations and

Judicial Watch’s, to the extent they are differences at

all, do not change the outcome.

4. Judicial Watch’s As-Applied

Challenge Fails

Judicial Watch raises one additional legal

argument not specifically addressed in O’Handley:

that California Election Code Section 10.5 is an

unconstitutional regulation of speech. See Opp. at 1517. Judicial Watch argues that Section 10.5, “as

interpreted and enforced by Defendant here” “suffers

from overbreadth” and is “an unconstitutional

content- and/or viewpoint-based regulation of speech

that cannot satisfy strict scrutiny.” Opp. at 15. This

appears to be part of Judicial Watch’s second cause of

action. See Compl. ¶¶ 40-42. Judicial Watch made

clear in its Opposition that the challenge against

Section 10.5 “focuses on the validity of how Defendant

has understood and applied her authority under

33a

Section 10.5 in this instance.” Opp. at 15. In other

words, this is an as-applied challenge, not a facial

challenge, as Judicial Watch has not alleged or

argued that Section 10.5 is unconstitutional in all

cases.

Although O’Handley did not address these

specific arguments, it nonetheless controls.

O’Handley argued that Section 10.5 was void for

vagueness. O’Handley, 62 F.4th at 1164. The court

construed this in part as an as-applied challenge, and

concluded that “O’Handley’s as-applied challenge also

fails because Elections Code § 10.5 was never applied

against him.” Id. The same is true here. The OEC took

extremely similar actions in O’Handley as it did here,

by messaging a social media company with concerns

about one specific post. At the hearing on May 11,

2022, Judicial Watch pointed to the allegations in

paragraph 28 of its complaint in an attempt to show

that Section 10.5 was applied against Judicial Watch.

The relevant part of that paragraph is the allegation

that the “OEC was acting under Section 10.5 of the

California Election Code.” See Compl. ¶ 28.

O’Handley made a nearly identical allegation, that

the defendants “used California Election Code § 10.5”

against O’Handley. The Ninth Circuit nevertheless

held that the OEC had not applied Section 10.5

against the plaintiff, and that this foreclosed any asapplied challenge. See O’Handley, 62 F.4th at 1164.

The Court makes the same finding here: The

Complaint fails to plausibly allege that Section 10.5

was applied against Judicial Watch, so Judicial

Watch’s as-applied challenge fails.

34a

C. Sovereign Immunity Bars the State Law

Claims

Judicial Watch alleges that Secretary Weber’s

conduct “violated Plaintiff’s rights under article I.,

sections 2(a) and 3(a) of the California Constitution.

Compl. ¶ 44. Both parties agree that this claim is

barred by sovereign immunity under the Eleventh

Amendment to the United States Constitution.

Sovereign immunity generally bars federal

courts from hearing suits against states. Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-102

(1984). This also applies to suits against state officials

where “relief sought nominally against an officer”

“would operate against” the state itself. Id. at 101.

Here, that is exactly what this suit is; Judicial Watch

sued Secretary Weber, but the relief it seeks would

operate to limit the actions of the State of California.

Thus, sovereign immunity applies.

There is a limited exception for suits alleging

that a state official’s actions violate the federal

constitution. Id. at 102; see also Ex parte Young, 209

U.S. 123, 159-160 (1908). This exception would allow

this Court to hear Judicial Watch’s federal

constitutional claims. But it does not apply to state

constitutional claims. Pennhurst, 465 U.S. at 102

(explaining that Ex Parte Young only applies to “suits

alleging conduct contrary to ‘the supreme authority of

the United States.’”). Thus, this Court is barred from

considering Judicial Watch’s claim pursuant to the

California Constitution, and it must be dismissed.

35a

D. Dismissal Will Be Without Leave to

Amend

Courts generally grant leave to amend

dismissed claims, unless “it is clear the complaint

could not be saved by any amendment.” Manzarek,

519 F.3d at 1031.

Here, the Court finds that amendment would

be futile, and sees no way that Judicial Watch could

amend sufficiently to state a claim upon which relief

could be granted. The actions Secretary Weber and

OEC allegedly took did not violate the United States

Constitution or any other federal law, and Secretary

Weber is immune from state law claims. The Court

notes that the District Court in O’Handley took this

same approach, for similar reasons. O’Handley v.

Padilla, 579 F. Supp. 3d 1163, 1203. (N.D. Cal. 2022),

aff’d sub nom. O’Handley v. Weber, 62 F.4th 1145 (9th

Cir. 2023). All claims will be dismissed without leave

to amend.

CONCLUSION

For the reasons stated above, Secretary

Weber’s Motion is GRANTED as to all claims. Judicial

Watch’s Complaint is dismissed without leave to

amend pursuant to Rule 12(b)(6). Both the First and

Second Requests for judicial notice are GRANTED.

IT IS SO ORDERED.

36a

Dated: May 22, 2023

__________________________________

_________

MAAME EWUSI-MENSAH FRIMPONG

United States District Judge

37a

APPENDIX F

FIRST AMENDMENT

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.

38a

FOURTEENTH AMENDMENT

Section 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

39a

APPENDIX G

ROBERT PATRICK STICHT (SBN 138586)

JUDICIAL WATCH, INC.

425 Third Street SW, Suite 800

Washington, D.C. 20024

Telephone: (202) 646-5172

Fax: (202) 646-5199

Email: rsticht@judicialwatch.org

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

JUDICIAL WATCH, INC.,

Plaintiff,

SHIRLEY WEBER, in her

official capacity as

Secretary of State of the

State of California,

Case No. 2:22-cv6894

COMPLAINT FOR

DECLARATORY

AND

INJUNCTIVE

RELIEF

Defendants.

Plaintiff

JUDICIAL

WATCH,

INC.

(“JUDICIAL WATCH”) brings this action against

Defendant SHIRLEY WEBER (“WEBER”), in her

40a

official capacity as Secretary of State of the State of

California, for violating Plaintiff’s rights under the

First and Fourteenth Amendments to the

Constitution of the United States and article I,

sections 2(a) and 3(a) of the California Constitution.

As grounds therefor, Plaintiff alleges as follows:

JURISDICTION AND VENUE

The Court has jurisdiction over Plaintiff

JUDICIAL WATCH’s federal civil rights claims

pursuant to 28 U.S.C. §§ 1331 and 1343(a). The Court

has jurisdiction over Plaintiff JUDICIAL WATCH’s

California Constitution claim pursuant to 28 U.S.C. §

1367.

Venue is proper in this district pursuant

to 28 U.S.C. § 1391(b) because Defendant WEBER

resides in this judicial district.

PARTIES

Plaintiff JUDICIAL WATCH, INC. is a

not-for-profit, educational organization incorporated

under the laws of the District of Columbia and

headquartered at 425 Third Street SW, Suite 800,

Washington, DC 20024. Plaintiff seeks to promote

transparency, accountability, and integrity in

government and fidelity to the rule of law. As part of

this public education mission, Plaintiff regularly

monitors developments in election law, brings

lawsuits to promote election integrity, and publicly

comments on and criticizes government actions that,

in Plaintiff’s view, undermine election integrity.

41a

Defendant SHIRLEY WEBER is the

Secretary of State of the State of California. As

Secretary of State, Defendant is California’s chief

elections officer and is responsible for administering

provisions of the Election Code, including section 10.5

of the California Election Code. Cal. Gov. Code §

12172.5; Cal. Elec. Code § 10.5. As the Secretary of

State, Defendant also oversees the Office of Elections

Cybersecurity (“OEC”) and acts through OEC officials

and employees. Cal. Elec. Code § 10.5(a). She is being

sued in her official capacity.

STATEMENT OF THE FACTS

It is not the role of the state to police the

opinion of citizens, yet OEC did just that when she

monitored Plaintiff’s YouTube channel, purportedly

assessed the contents of a video Plaintiff posted on the

channel as being “misleading,” and caused the video

to be removed from YouTube’s video sharing and

social media platform.

Plaintiff has maintained a YouTube

channel since May 16, 2006. Among Plaintiff’s other

social media presences, Plaintiff’s YouTube channel is

an important means of communicating with its

followers and supporters and disseminating

information to the public in furtherance of the

organization’s public education mission.

Plaintiff has posted over 4,200 videos on

its YouTube channel that, as of the date of this

complaint, have garnered nearly 94 million views.

42a

Plaintiff’s YouTube channel has more than 502,000

subscribers.

On September 22, 2020, Plaintiff posted

on its YouTube channel a video entitled

“**ELECTION INTEGRITY CRISIS** Dirty Voter

Rolls, Ballot Harvesting & Mail-in-Voting Risks!”

The 26-minute video featured Judicial

Watch President Tom Fitton discussing vote-by-mail

processes, changes to states’ election procedures,

ballot collection (sometimes referred to as “ballot

harvesting”), and states’ failures to clean up their

voter rolls, among other topics. Mr. Fitton’s comments

were informed by successful lawsuits brought by

Plaintiff against Los Angeles County and Defendant

in 2017 to compel the county and State to comply with

the National Voter Registration Act’s voter list

maintenance requirements (Judicial Watch, Inc., et

al. v. Logan, et al., Case No. 2:17-08948 (C.D. Cal.

Dec. 13, 2017)), and against Governor Gavin Newsom

and Defendant in 2020 challenging the Governor’s

attempt to unilaterally change the State’s 2020

election procedures to an all vote-by-mail system

(Issa, et al. v. Newsom, et al., Case No. 2:20-cv-01044)

(C.D. Cal. May 21, 2020). The former resulted in a

Consent Decree that compelled Defendant and Los

Angeles County to implement several new practices

and procedures to clean up state and county voter

registration rolls. The latter compelled the State of

California to comply with the Elections Clause (art. I,

sec. 4) and the Electors Clause (art. II, sec. 1) of the

U.S. Constitution to change its 2020 voting

43a

procedures to an all vote-by-mail system. Plaintiff

received a substantial fee award in Issa.

10.

The views that Mr. Fitton shared in the

September 22, 2020 video were supported not just by

Judicial Watch’s own substantial experience

advancing election integrity and successful litigation

against Defendant, but also by nonpartisan and

bipartisan studies and reports and numerous other

sources. Mr. Fitton’s comments were neither false nor

misleading, nor was there any evidence that Mr.

Fitton’s comments “may suppress voter participation

or cause confusion and disruption of the orderly and

secure administration of elections.” Cal. Elec. Code §

10.5(b)(2).

11.

On or about September 25, 2020,

YouTube informed Plaintiff that it had removed

Plaintiff’s video. The video has not been available on

YouTube since that date.

12. Plaintiff subsequently learned through a

California Public Records Act (“PRA”) request

directed to Defendant’s office that OEC had

purportedly assessed Plaintiff’s video to be

misleading and caused the video to be removed from

YouTube’s video sharing platform.

13.

Specifically, according to records

obtained by Plaintiff in response to Plaintiff’s

December 30, 2020 PRA request, on or about

September 22, 2020, OEC listed the video on its

“Misinformation Tracking Sheet” or “Misinformation

Tracker.”

44a

14.

Under

the

column

entitled

“Screenshots/Text/Link,” followed by a link to

Plaintiff’s video on YouTube, OEC wrote:

The states are taking reasonable steps to

clean up the rolls and that led in part to

a settlement with Los Angeles county in

Californian Michigan they chant the

court uh one court judge changed the

rules to allow them to count ballots 14

days after the election and mandated

ballot harvesting and what is ballot

harvesting it basically means anybody

can take anyone’s ballot and bring it to

the polling place again more opportunity

(sic).

15.

Under

the

column

entitled

“Misinformation,” OEC copied the text under the

“Screenshots/Text/Link” column, then wrote:

Ballot Collection/Harvesting; Voter

Rolls. Head of conservative group

Judicial Watch hosts video alleging

Democrats benefit from incorrect voter

rolls and ballot collection. Has 2,398

views as of 4:07pm 9/22.

16.

Under the column entitled “Indicator,”

OEC wrote, “Ballot Collection.”

45a

17.

Under the column entitled “Social Media

Action Taken,” OEC wrote, “Video was removed from

YouTube.”

18.

Under the column entitled “Result,”

OEC wrote, “Removed.”

19.

Also according to records obtained

through the PRA, OEC communicated with YouTube

and/or Google, which are subsidiaries of Alphabet,

Inc., to have Plaintiff’s video taken down.

20.

Specifically, on or about on September

24, 2020, OEC Social Media Coordinator Akilah Jones

emailed civics-outreach@google.com and copied four

YouTube employees with the subject line, “REPORT

VIDEO: **ELECTION INTEGRITY CRISIS** Dirty

Voter Rolls, Ballot Harvesting & Mail-in-Voting

Risks!” In the email, Jones wrote:

Hi YouTube Reporting Team,

I am reporting the following video

because

misleads

community

members about elections or other civic

processes and misrepresents the safety

and security of mail-in ballots. Thank

you for your time and attention to this

matter.

All the best, Akilah.

46a

21.

At or about 11:16 a.m. (ET) on

September 25, 2020, YouTube and/or Google

representative Andrea Holtermann replied to Jones:

Hi Akilah,

Thank for reaching out. We will look into

this and get back to you as soon as we

can.

22.

Later that same day, Plaintiff noticed

that the video had been taken down.

23.

On September 27, 2020, YouTube and/or

Google’s Holtermann confirmed to Jones that

Plaintiff’s video had been removed:

Hi Akilah,

Circling back on this. Thank you for

raising this content to our attention, this

has been removed from the platform for

violating our policies. Please do not

hesitate to reach out if there are any