The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
No Government Action (and Thus No First Amendment Violation) in Suspension of Plaintiffs' YouTube Accounts
So holds a federal district court, rejecting plaintiff's theories that (among other things) the government compelled the suspension, and that the government and YouTube were engaged in "joint action."
From Doe v. Google LLC, decided today by Judge Beth Labson Freeman:
Plaintiffs assert that Defendants have deprived them of their First Amendment rights by suspending their YouTube accounts…. Plaintiffs argue that they have pled sufficient facts to plausibly allege state action under … [the theory of government] compulsion ….
{[From an earlier decision in the same case, the background facts: -EV] Plaintiffs created eighteen channels on the YouTube platform. Plaintiffs describe their channels as "extremely controversial" "conservative news" channels that feature content about "Hunter Biden and the Ukraine scandal," "the ongoing corruption probe," "social media censorship," "race relations or protests in America," and "anonymous posts on political issues by someone identifying themselves as 'Q.'" Plaintiffs allege that as of October 15, 2020, their channels attracted over 4.5 million subscribers and over 800 million views.}
Plaintiffs' First Amended Complaint cites statements by U.S. Rep. Adam Schiff and Speaker of the House Nancy Pelosi and an October 2020 House Resolution, which "have pressed Big Tech" into censoring political speech with threats of limiting Section 230 of the Communications Decency Act ("CDA") and other penalties….
For a private party's conduct to constitute state action under a compulsion theory, it must involve "such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky (1982). To plead such a claim, a party must allege that the government "commanded a particular result in, or otherwise participated in, his specific case." Plaintiffs must point to a "state regulation or custom having the force of law that compelled, coerced, or encouraged" the alleged private conduct. Further, a compulsion claim against a private party requires pleading "some additional nexus that [makes] it fair to deem the private entity a governmental actor in the circumstances."
The Court finds that the statements by federal lawmakers Plaintiffs point to are insufficient to plead that the government "commanded a particular result in, or otherwise participated in, [Plaintiffs'] specific case." Plaintiffs point to generalized statements from lawmakers pertaining to "coronavirus-related misinformation," "disinformation proliferating online," "QAnon-related speech," and "conspiracy theories."
None of the statements mention Plaintiffs' names, their YouTube or Google accounts, their channels, or their videos. Plaintiffs argue that state actors "commanded a particular result" in their case because "Plaintiffs have alleged that Congress demanded that the unpopular speech dubbed 'misinformation,' and QAnon-related speech be limited and erased, which is precisely what Plaintiffs allege Defendants did." The Court disagrees that broad lawmaker proclamations regarding "misinformation" or "QAnon-related speech," for example, are sufficient to show that the government "commanded" the suspension of Plaintiffs' accounts. Even if Defendants had complied with these lawmaker statements to the letter, they would still have had the ultimate discretion on what videos or accounts fit into buckets like "misinformation" or "QAnon-related speech."
The Court also disagrees with Plaintiffs that they have alleged sufficient facts about the content of their videos to link their removal to the broad categories of online content mentioned in the lawmakers' statements. For example, Plaintiffs plead no facts to indicate that their videos pertained to COVID-19, so none of the statements from members of Congress relating to COVID-19 misinformation have any relevance to Defendants' alleged conduct. Further, Plaintiffs plead only vague facts about other subjects that leave open the question as to whether all Plaintiffs posted about these subjects, or only some of them. And none of the lawmaker statements Plaintiffs cite contain clear action items relevant to Plaintiffs' allegations. Id. ¶ 32 (encouraging YouTube to "display messages to any users who have engaged with harmful coronavirus-related misinformation"); id. ¶ 34 (generally discussing "misconduct" related to "the division and the disinformation proliferating online"); id., Ex. F at 81 (encouraging action on the part of the FBI, intelligence community, and "all Americans").
Plaintiffs claim that Defendants' conduct is state action because it was in response to the threat of various government penalties—the repeal of CDA Section 230 protections, "show trials" in front of the U.S. Senate, and a DOJ antitrust suit against Google—allegedly linked to whether Defendants appropriately moderated certain types of content. The threats of penalties Plaintiffs point to are insufficient to convert private conduct into state action here. The Ninth Circuit has found that pleading "a private actor's conduct is subject to penalties … is … insufficient to convert private action into that of the state." Moreover, Plaintiffs fail to point to any penalties that necessarily or even likely would have followed if Defendants did not suspend their accounts. See, e.g., FAC ¶ 10 (citing a DOJ antitrust case against Google with no alleged relationship to content moderation decisions); id. ¶ 34 (discussing generally that "social media executives … will be held accountable for [their] misconduct"); id. ¶ 33 (discussing removal of CDA Section 230 protections without any clear action item or ultimatum); Opp. at 12-13 (citing cases related to congressional subpoena and investigation powers). These speculative "threats" to Defendants do not plausibly constitute "state regulation or custom having the force of law."
Plaintiffs can point to no authority to support a compulsion theory of state action based on penalties, particularly "threats" as speculative as the ones they point to here. See, e.g., Abu-Jamal v. NPR (D.D.C. 1997) (pressure from individual members of Congress did not bring about state action because "not one of these people has any legal control over [defendant's] actions."); Daniels v. Alphabet Inc. (N.D. Cal. 2021) ("[S]peculative assertions about the possibility defendants will be subpoenaed to testify before Congress or exposed to some other peril if they ignore letters from Congressional representatives do not support a theory of government action."). Courts have declined to find state action even where government penalties are far less speculative than what Plaintiffs allege, like where a law or regulation tied to state funding applies. Blum ("[P]enalties imposed for violating the regulations add nothing to respondents' claim of state action."); Heineke v. Santa Clara Univ. (9th Cir. 2020); Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) ("The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State[.]"); see also Manhattan Comm. Access Corp. v. Halleck (2019) ("Put simply, being regulated by the State does not make one a state actor.") Here, no law or regulation applies—in fact, the main "threat" Plaintiffs allege is the repeal of a law (Section 230 of the CDA)….
The Court also finds that Plaintiffs have not pled facts sufficient to plausibly allege the "something more" element required for a compulsion claim against a private defendant under Plaintiffs claim that they have pled facts that Defendants and the government "were jointly pursuing an unconstitutional end." But Plaintiffs rely primarily on a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki that has no alleged relevance to Plaintiffs' content, since it pertains to COVID-19 misinformation. Moreover, as discussed below, Plaintiffs have failed to allege facts sufficient to plead that Defendants were engaged in joint action with the government….
Plaintiffs [also] assert that there is state action under a joint action theory, pointing to a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki in which Ms. Wojnicki states, "We appreciate your partnership and will continue to consult with Members of Congress as we address the evolving issues around #COVID19." …
Joint action is present where the government has "so far insinuated itself into a position of interdependence with [a private entity] that it must be recognized as a joint participant in the challenged activity." Further, a private defendant must be a "willful participant in joint action with the state or its agents." Joint action requires a "substantial degree of cooperative action" between private and public actors.
As a threshold matter, the Schiff-Wojnicki Twitter exchange Plaintiffs point to in support of their joint action claim clearly pertains to misinformation regarding COVID-19. As the Court discussed above, Plaintiffs have failed to allege any facts indicating that their posts pertained to COVID-19. Accordingly, it is unclear how this Twitter exchange supports a joint action theory pertaining to the suspension of Plaintiffs' channels. Since the Twitter exchange appears to be the fact Plaintiffs primarily rely on to allege joint action, Plaintiffs' failure to plead the relevance of this fact renders their joint action claim essentially unsupported. Further, it is simply implausible to read a casual Twitter exchange between one member of Congress and YouTube's CEO as joint action. Plaintiffs' theory would effectively cause companies to cease communicating with their elected representatives for fear of liability ….
Further, Plaintiffs' allegations fail to plausibly plead a "substantial degree of cooperative action" between Defendants and the government. Based on Plaintiffs' allegations, their content was removed through the following series of events: federal lawmakers publicly flagged general categories of content for Defendants to consider moderating and issued threats to compel Defendants to comply, Defendants independently chose what content fit into the lawmakers' general categories, and Plaintiffs' channels happened to be some of the content Defendants decided to remove. Courts have dismissed cases for lack of state action despite significantly more alleged cooperation between public and private actors compared to what Plaintiffs allege here. Pinhas v. Summit Health, Ltd., (9th Cir. 1989) (affirming dismissal for lack of state action in decision by private hospital pursuant to review process approved by state); Heineke (affirming dismissal for lack of state action where private actor "receives federal and state funds … conditioned on compliance with federal and state anti-discrimination laws and regulations"); Abu-Jamal (no plausible joint action at pleading stage where defendant is alleged to have a "close relationship" with the government); Jackson v. Metropolitan Edison Co. (1974) (affirming dismissal for lack of state action where defendant "was a heavily regulated, privately owned utility"); Blum (no state action with "state subsidization of the operating and capital costs of the [private] facilities, payment of the medical expenses of more than 90% of the patients in the facilities, and the licensing of the facilities by the State").
The cases Plaintiffs cite also indicate that far more is necessary to plead joint action than what they have alleged here. Plaintiffs cite U.S. v. Price (1966), which involved a scheme between state officers and private citizens where "[s]tate officers participated in every phase of the alleged venture: the release from jail, the interception, assault and murder. It was a joint activity, from start to finish." Plaintiffs have failed to plead anything close to the Price scheme. Ms. Wojnicki's tweet about "partnership" and "continu[ing] to consult with Members of Congress" does not suggest that government officials were involved at every step of Plaintiffs' suspension. At most, Plaintiffs appear to allege that government officials identified categories of information Defendants should consider removing—there is no allegation that government officials were in the room or somehow directly involved in the decision to suspend Plaintiffs.
Further, Plaintiffs cite Lugar v. Edmondson Oil Co. (1982). In that case, the Supreme Court found joint action where a private party "invok[ed] the aid of state officials to take advantage of state-created attachment procedures." In the present case, there are no allegations that Defendants invoked state or federal procedure to bring about the suspension of Plaintiffs' accounts. Defendants merely suspended Plaintiffs from Defendants own private platform….
