Doe v. Google LLC

Background

Plaintiffs described themselves as “conservative content creators” who posted videos on YouTube under YouTube’s Terms of Service. They alleged that Defendants suspended their YouTube accounts on October 15, 2020. The first amended complaint asserted a First Amendment claim, a breach-of-contract claim, and a claim for breach of the duty of good faith and fair dealing.

Defendants moved to dismiss the first amended complaint under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. The court treated Plaintiffs’ constitutional claim as a claim under Bivens because the complaint appeared to assert it under 42 U.S.C. § 1983, a statute generally used for constitutional claims against state actors, even though the complaint alleged conduct by federal officials.

First Amendment Claim

The court held that Plaintiffs did not plausibly allege that Defendants’ conduct amounted to government action. Because Google and YouTube are private companies, Plaintiffs had to plead facts showing that the challenged account suspensions could fairly be treated as actions of the government.

The court considered four theories of government action:

- Public function: The court held that this theory was foreclosed by Ninth Circuit precedent, which ruled that YouTube does not perform a traditionally exclusive public function by regulating speech on a public forum. - Government compulsion: Plaintiffs relied on statements by federal lawmakers, an October 2020 House resolution, and alleged threats involving Section 230 of the Communications Decency Act and other penalties. The court held that these generalized statements did not command or otherwise participate in the suspension of Plaintiffs’ specific accounts. The statements did not identify Plaintiffs, their accounts, channels, or videos, and Plaintiffs did not identify a law or regulation with the force of law that compelled the suspensions. The court also found that Plaintiffs failed to plead the additional connection required for a compulsion claim against a private party. - Joint action: Plaintiffs relied primarily on a Twitter exchange between Representative Adam Schiff and YouTube CEO Susan Wojcicki that referred to a partnership and consultation concerning COVID-19 misinformation. The court found that the exchange did not show substantial cooperative action relating to Plaintiffs’ account suspensions, particularly because Plaintiffs did not allege that their posts concerned COVID-19. The court also noted that the allegations showed, at most, that lawmakers identified general categories of content, while Defendants independently decided what content to remove. - Governmental nexus: The court found that Plaintiffs relied on essentially the same allegations as under their joint-action theory and failed to allege a sufficiently close connection between the government and the specific suspensions.

Based on the failure of all four theories, the court held that Plaintiffs had not adequately pleaded government action and therefore had not stated a proper First Amendment claim.

State-Law Claims

Plaintiffs also asserted state-law claims for breach of contract and breach of the duty of good faith and fair dealing. They relied on supplemental jurisdiction, which allows a federal court to hear related state-law claims when the case also includes a federal claim within the court’s original jurisdiction.

After dismissing the only federal claim, the court declined to exercise supplemental jurisdiction over the state-law claims. It stated that little judicial economy would be lost because it had only preliminarily considered those claims while addressing Plaintiffs’ earlier request for a temporary restraining order. The court dismissed the state-law claims without prejudice to refiling in state court.

Section 230 and Leave to Amend

Defendants argued that Section 230 of the Communications Decency Act would protect them from liability if Plaintiffs had stated a viable claim. Because the court dismissed the federal claim and declined supplemental jurisdiction over the state-law claims, it declined to decide whether Section 230 applied.

The court found that amendment would be futile as to the First Amendment claim. It therefore dismissed that claim with prejudice. The order directed that a separate judgment issue and that the Clerk close the file. The court dismissed the state-law claims without prejudice to refiling in state court.