The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Doe v. Google LLC, decided yesterday by the Ninth Circuit (Judges Margaet McKeown, Consuelo Callahan, and Lawrence Vandyke):
Appellants are fourteen self-described "conservative" content creators who spent years growing their YouTube channels and amassing more than 771 million views. These channels discussed topics such as "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.'" Appellants' videos were hosted on YouTube, a video sharing platform whose Terms of Service give it discretion to terminate accounts under certain circumstances, including if YouTube believed that there was "conduct that create[d] (or could create) liability or harm to any user, other third party, YouTube or [its] Affiliates."
Appellants allege that on October 15, 2020, YouTube terminated or suspended Appellants' channels, claiming that it was "taking another step in [its] efforts to curb hate and harassment by removing more conspiracy theory content used to justify real-world violence." … In their claim for a First Amendment violation, which is the premise for federal court jurisdiction, Appellants asserted that YouTube and Google—the parent company of YouTube—either conspired with the federal government, or were compelled by the federal government, to take down their video content. This, they argue, constitutes an activity akin to state action and supports the assertion of a constitutional claim against a private company for its conduct.
In support of their assertion, Appellants cite seven events involving federal officials regarding YouTube, Google, or general social media platform moderation policies that took place between 2019 and 2020: (1) statements by House Speaker Nancy Pelosi on possibly removing the protection provided to social media platforms under Section 230 of the Communications Decency Act; (2) a letter by Representative Adam Schiff to Google's CEO and YouTube's CEO encouraging the curbing of COVID-related misinformation on social media platforms; (3) a statement by Speaker Pelosi at a Georgetown University forum on COVID calling for greater accountability for "the division and the disinformation proliferating online"; (4) the Senate Commerce Committee's vote to compel the testimony of Google's CEO regarding content moderation; (5) the House of Representatives' passage of House Resolution 1154, a non-binding resolution condemning the "QAnon" conspiracy theory, encouraging Americans to "seek information from authoritative sources," and acknowledging social media platforms efforts to remove "QAnon groups and their content from their platforms"; (6) a Department of Justice antitrust lawsuit against Google for maintaining monopolies in general search services and search advertising; and (7) the questioning of Facebook founder Mark Zuckerberg by the Senate Judiciary Committee concerning programs used to "to coordinate censorship efforts targeting content creators and others who expressed disfavored viewpoints." …
The First Amendment commands that "Congress shall make no law … abridging the freedom of speech." The Supreme Court has held that "the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech." However, Appellants argue that YouTube's removal of their content comes within the state-action doctrine and that YouTube can be held liable for a First Amendment violation, because YouTube was either (1) compelled by the federal government to remove the content, or (2) so entangled with the federal government that there is a sufficient nexus between the government's conduct and YouTube's conduct….
Under the compulsion theory, a private entity's conduct may constitute state action "when the government compels the private entity to take a particular action." For a private entity's conduct to constitute state action, the government must have "exercised coercive power or ha[ve] provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [government]."
The government actions alleged in the complaint do not meet this standard. The antitrust suit against Google and the Senate Committee testimony of certain CEOs are only tangentially related to YouTube's content moderation decisions. Moreover, those events, like the acts that are more specifically directed at YouTube—for example, Speaker Pelosi's and Representative Schiff's comments—lack force of law, rendering them incapable of coercing YouTube to do much of anything. Cf. West v. Atkins (1988) (finding that, in the context of 42 U.S.C. § 1983, a state actor's challenged conduct has force of law when the actor has exercised power possessed by virtue of law and was made possible only because of their grant of authority by the state). In both their briefing and at oral argument, Appellants focus on House Resolution 1154, but in addition to having no force of law, the resolution mentions Google only in passing, and neither mentions nor asks anything of YouTube. Appellants have not alleged facts that suggest that the government compelled Appellees' actions.
Another fundamental problem with Appellants' compulsion theory is that the state-action doctrine only allows plaintiffs to hold the government liable for a private entity's conduct and does not support a claim against the private entity itself. Indeed, our precedent precludes such an inversion of liability. See Sutton v. Providence St. Joseph Med. Ctr. (9th Cir. 1999) (finding it is the state actor, and not the coerced private party, that should be held liable for a constitutional violation that arose from the state's compulsion). [Note that not all federal circuit courts have seen things this way, as Sutton acknowledged. -EV] Appellants' compulsion theory cannot sustain their First Amendment claim against YouTube and Google….
The Appellants' governmental nexus approach to the state-action doctrine is also unavailing. "Typically, the nexus has consisted of participation by the state in an action ostensibly taken by the private entity, through conspiratorial agreement …, official cooperation with the private entity to achieve the private entity's goal …, or enforcement and ratification of the private entity's chosen action …." "[A]t bottom, the inquiry is always whether the defendant has exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law."
Appellants do not allege that sort of close connection here. In support of their nexus theory, they focus on the Twitter exchange between Representative Schiff and YouTube's CEO. But as the district court explained, an exchange between an individual member of Congress and YouTube's CEO about COVID-19 simply does not allege the kind of entanglement between a government entity and private conduct necessary to support a finding of state action.
Similarly, Speaker Pelosi's statements and House Resolution 1154 are insufficient to show that anyone linked to the federal government was "so far insinuated" or "inextricably intertwined" with YouTube's content-moderation decisions that those decisions could be "fairly attributable" to the government. Indeed, Appellants have failed to show any link between the alleged actions by the Speaker and the House and YouTube's decision to remove Appellants' channels…. "Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality." ….
Even accepting Appellants' allegations of material fact as true and construing them in Appellants' favor, they fail to show the exercise of "power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law" necessary for YouTube's actions to be akin to state action such that the company might be held liable for a First Amendment violation….