Newman v. Google LLC

Background

Kimberly Carleste Newman, Lisa Cabrera, Catherine Jones, Denotra Nicole Lewis, Andrew Hepkins, Harvey Stubbs, Khalif Muhammad, Keu Reyes, and Osiris Ley, who operated YouTube channels, sued Google LLC and YouTube, LLC. The plaintiffs alleged that defendants’ moderation and advertising systems treated them differently because they were African American or of Mexican or Puerto Rican descent, or because of their viewpoints. They claimed that defendants restricted videos in Restricted Mode, removed advertising from videos, reduced visibility in search and recommendations, disrupted livestreams, and took other allegedly discriminatory actions.

The Revised Second Amended Complaint asserted federal claims under 42 U.S.C. § 1981, the Lanham Act, and the First Amendment, along with state-law claims including breach of contract, discrimination under California’s Unruh Civil Rights Act, unfair business practices, and claims under the California Constitution. The plaintiffs also sought a declaration about whether Section 230 of the Communications Decency Act protected defendants’ conduct or was unconstitutional.

Defendants moved to dismiss the complaint in its entirety. Plaintiffs moved to strike portions of the dismissal motion and attached exhibits, or alternatively to convert the motion into one for summary judgment.

Federal Claims

The court dismissed the Section 1981 racial-discrimination claim because the complaint did not allege facts supporting an inference that defendants intentionally and purposefully discriminated against plaintiffs because of race. The court noted that plaintiffs alleged that their videos were restricted or demonetized because of race, but treated those allegations as unsupported beliefs rather than factual allegations showing intentional racial discrimination. The court also noted that many of plaintiffs’ videos remained available and eligible for advertising revenue. Allegations about defendants’ treatment of LGBTQ+ users did not show intentional racial discrimination against these plaintiffs, and allegations about a meeting at which defendants allegedly discussed algorithmic bias were too vague. The court granted leave to amend this claim.

The court dismissed the First Amendment claim because Google and YouTube were private entities, not state actors for purposes of the challenged editorial decisions. It rejected plaintiffs’ arguments that YouTube’s widespread use made it a private government or that Section 230 created state action. The court concluded that Section 230 did not compel, encourage, endorse, or involve the federal government in defendants’ editorial decisions. The court granted leave to amend this claim.

The court dismissed the Lanham Act false-advertising claim. It relied on controlling Ninth Circuit precedent holding that YouTube’s Restricted Mode statements explained a user tool and were not “commercial advertising or promotion.” The court also concluded that the Restricted Mode notice did not make a specific misleading representation about plaintiffs’ videos and that the alleged injuries resulted from the videos’ unavailability, not from the notice itself. The court granted leave to amend this claim.

State Claims and Section 230 Declaration

After dismissing all federal claims, the court declined to exercise supplemental jurisdiction, meaning authority to hear related state-law claims, over plaintiffs’ nine remaining state-law causes of action. The court dismissed those claims because the case was still at the pleading stage and declining jurisdiction conserved federal resources and promoted respect for California courts’ role in resolving California-law questions. The court granted leave to amend because plaintiffs might be able to plead a federal claim that would support supplemental jurisdiction over the state claims.

The court also dismissed plaintiffs’ request for a declaration about Section 230. It did not decide whether Section 230 applied to defendants’ conduct or whether Section 230 was constitutional. The court reasoned that plaintiffs appeared to be seeking a declaration in anticipation of an affirmative defense, which is generally improper, and that deciding the constitutional question was unnecessary after the federal claims were dismissed and supplemental jurisdiction was declined. The court granted leave to amend this claim.

Motion to Strike

The court denied plaintiffs’ motion to strike and their alternative request to convert the dismissal motion into a motion for summary judgment. It gave two independent reasons why the motion to strike could be denied: the motion was filed separately from the opposition brief in violation of Civil Local Rule 7-3(a), and a motion to dismiss is not a pleading subject to Federal Rule of Civil Procedure 12(f)’s motion-to-strike procedure.

The court also declined to convert the motion into a summary-judgment motion. It concluded that most, if not all, of the challenged exhibits were documents incorporated by reference into the complaint, including YouTube’s terms of service and related agreements. In any event, the court stated that it did not rely on any challenged exhibit to decide the dismissal motion.

Disposition

The court granted defendants’ motion to dismiss the Revised Second Amended Complaint in its entirety with leave to amend and denied plaintiffs’ motion to strike. The order gave plaintiffs 30 days to file an amended complaint. It stated that failure to amend, or failure to correct the deficiencies identified in the order and defendants’ motion, would result in dismissal of the deficient claims with prejudice. Plaintiffs could not add new claims or parties without a stipulation or court permission.

Classification

This is a procedural order because the case was resolved through a Rule 12(b)(6) failure-to-state-a-claim ruling and related jurisdictional decisions, rather than a final merits determination after litigation of the underlying claims.