Brock v. Zuckerberg

MANDELA BROCK, Plaintiff, v. MARK ZUCKERBERG, et al., Defendants.

No. 20-cv-7513 (LJL)

United States District Court, S.D. New York

June 25, 2021

OPINION AND ORDER

LEWIS J. LIMAN UNITED STATES DISTRICT JUDGE

Pro se Plaintiff Mandela Brock (“Plaintiff” or “Brock”) filed this action on September 14, 2020 against Facebook, Inc. (“Facebook”), Mark Zuckerberg (“Zuckerberg”), Sheryl Sandberg (“Sandberg”), and John and Jane Does 1-100 (collectively, “Defendants”). By amended complaint, Plaintiff added Sean Parker (“Parker”) and Mark Pincus (“Pincus”) as Defendants. Plaintiff claims Defendants violated his constitutional rights to free speech and due process by allegedly removing and blocking his Facebook posts. Plaintiff also alleges a series of civil Racketeer Influenced and Corrupt Organizations (“RICO”) violations.

Defendants move to dismiss under Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6) on the grounds that Plaintiff's complaint fails to state a claim for relief. Alternatively Defendants move to transfer the case to the United States District Court for the Northern District of California under 28 U.S.C. § 1404(a).

For the following reasons, the Court grants the motion to dismiss with prejudice. It also denies the motion to transfer as moot.

BACKGROUND

Plaintiff Mandela Brock brought this action against Facebook Zuckerberg, Sandberg and later Parker for “unconstitutionally censor[ing]” his content on the Facebook platform.^[1] Dkt. No. 2 (“Compl.”) ¶ 4.

Facebook is a California-based technology company that operates a variety of online services and applications, including its flagship “Facebook” social media platform. Dkt No. 29 at 12. Mark Zuckerberg serves as Chief Executive Officer of Facebook and Sheryl Sandberg serves as Chief Operating Officer.^[2] Id. On the Facebook platform individuals can upload content, share posts, create groups, and comment on other posts. See Compl., Ex. A-1, A-2. According to Defendants, all persons who use Facebook must agree to Facebook's User Agreement. Dkt. No. 28 at 1 (the “Agreement”). The Agreement includes Facebook's “Terms of Use, ” “Statement of Rights and Responsibilities, ” and “Terms of Service.” Id. Facebook's Terms of Service, Dkt. No. 18-1, prohibit users from “shar[ing] anything: [t]hat violates . . . our Community Standards . . . [t]hat is unlawful, misleading, discriminatory or fraudulent.” Dkt. No. 18-1 at 4. Plaintiff is registered to use Facebook under the username “Mandela El'Shabazz.” Compl., Ex. A.^[3]

Plaintiff claims Facebook “censored” his content on its platform at least thirty times between March 2020 and September 2020. Dkt. No. 21 (“Amended Complaint” or “AC”) ¶ 4. He alleges that Facebook first “censored” his posts on or around March 15, 2020 and that Facebook's removal of his posts “intensified” following the George Floyd protests in May 2020. Id. ¶ 5. Plaintiff's posts were flagged and removed by Facebook for violating the company's “Community Standards” on spam, Compl., Exs. A, C, and F, and its “Community Standards” on hate speech, Compl., Exs. A, C, D, K, and M. Plaintiff's posts were also flagged for being “abusive, ” Compl., Ex. L, and for being “partly false, ” Compl., Exs. R and Q.

In response to Facebook's removal and flagging of his content, Plaintiff alleges violations of his constitutional rights under the First, Fifth, Sixth, and Fourteenth Amendments. Compl. ¶¶ 16-20, 21-26; AC ¶¶ 23-27, 28-33. Plaintiff claims Facebook, Zuckerberg, and Sandberg violated Plaintiff's “right to free speech” by allowing the “Facebook Oversight Board, ”^[4] which he presumes is responsible for ensuring user compliance with Facebook's Community Standards, to “censor” his content. Compl. ¶¶ 17-18; AC ¶¶ 24-25. Plaintiff then alleges Defendants violated his “due process” rights by failing to provide him with an opportunity to “put forward a stated . . . defense” for his posts. Compl. ¶ 17; AC ¶ 24. Plaintiff also claims that Zuckerberg, Sandberg, and Parker “permitted, tolerated, and w[ere] deliberately indifferent to a clear pattern of suppression of free speech, discrimination, and partisanship abuse.” Compl. ¶ 22; AC ¶ 29.

Plaintiff also alleges Facebook and the Individual Defendants violated RICO. 18 U.S.C. § 1962; AC ¶¶ 34-71. Plaintiff's RICO claims primarily relate to Defendants' motion to transfer the case to the United States District Court for the Northern District of California, pursuant to the forum selection clause in Facebook's Terms of Service. AC ¶¶ 20-22. Plaintiff alleges Defendants-in seeking to enforce the forum selection clause-are operating a “jurisdictional shell game.” Id. ¶ 11.

PROCEDURAL HISTORY

On September 14, 2020, Plaintiff filed an initial complaint against Facebook, Zuckerberg, Sandberg, and John Doe 1-100 and Jane Doe 1-100.^[5] Compl. at 3. Defendants moved to dismiss the initial complaint, or alternatively to transfer venue to the United States District Court for the Northern District of California pursuant to 28 U.S.C. § 1404(a) on November 20, 2020. Dkt. No. 17.

Plaintiff filed the Amended Complaint on December 16, 2020. Pursuant to the Court's individual practices, Defendants' motion to dismiss was denied as moot. Dkt. No. 26. In the Amended Complaint, Plaintiff added Defendants Parker (in his personal and corporate capacities) and Pincus. Pincus is the litigation attorney who appeared for Facebook, Zuckerberg, and Sandberg in this case. Id. On December 30, 2020, the Court dismissed the claims against Pincus as frivolous. Dkt. No. 26. Plaintiff appealed the Court's decision to dismiss the claims against Pincus. Dkt. No. 30. The Second Circuit dismissed Plaintiff's appeal pursuant to 28 U.S.C. § 1291 on June 3, 2021. Dkt. No. 36. Pincus, on behalf of Zuckerberg, Sandberg, and Facebook, filed a new motion to dismiss for failure to state a claim, or alternatively, to transfer venue on January 11, 2021. Dkt. No. 29. Plaintiff responded to the motion to dismiss on February 28, 2021. Dkt. No. 30. On March 8, 2021, Defendants filed a reply memorandum of law in further support of their motion to dismiss. Dkt. No. 34.

LEGAL STANDARD

In considering a motion to dismiss pursuant to Rule 12(b)(6), a court must “accept the material facts as alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Phelps v. Kapnolas, 308 F.3d 180, 184 (2d Cir. 2002) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)). However, “[t]o 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)). The Court is obligated to construe pro se pleadings broadly and liberally, interpreting them so as to raise the strongest arguments they suggest. See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007); Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000).

However, while the Court construes pro se pleadings liberally, this does not relieve pro se plaintiffs of the requirement that they plead enough facts to “nudg[e] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Nor does it relieve them of the obligation to otherwise comply with the pleading standards set forth by the Federal Rules of Civil Procedure. See Saidin v. N.Y.C. Dep't of Educ., 498 F.Supp.2d 683, 687 (S.D.N.Y. 2007); see also Locicero v. O'Connell, 419 F.Supp.2d 521, 525 (S.D.N.Y. 2006) (requiring that pro se litigants allege sufficient facts to indicate deprivation of a constitutional right).

DISCUSSION

Plaintiff alleges Facebook's removal and blocking of his posts violated both his constitutional rights and various “New York State” claims. AC ¶¶ 23-27 28-33; Dkt. No. 33 ¶¶ 28-29. The Court construes the Complaint as primarily alleging claims under the Free Speech Clause of the First Amendment and the Communications Decency Act, 47 U.S.C. § 230. Plaintiff also alleges Defendants' motion to transfer constituted “racketeering activity” and violated several federal statutes. AC ¶¶ 34-71. The Court addresses these claims in turn.

I. Claims Related to Alleged Removal of Content

A. Claims Under the First Amendment

1. Claims Against Facebook

“Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.” Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (quoting Flagg v. Yonkers Sav. & Loan Ass' n, 396 F.3d 178, 186 (2d Cir. 2005)); see also Hudgens v. N.L.R.B., 424 U.S. 507, 513 (1976) (“[T]he constitutional guarantee of free speech is a guarantee only against abridgment by government.”); Rodriguez v. Winski, 973 F.Supp.2d 411, 419 (S.D.N.Y. 2013) (“It is axiomatic that the First Amendment protects the rights to speak, publish, and assemble against abridgement only by the government.”).

The actions of a private corporation only constitute state action “(i) when the private entity performs a traditional exclusive public function; (ii) when the government compels the private entity to take a particular action or (iii) when the government acts jointly with the private entity.” Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 1928 (2019) (internal quotations and citations omitted). Notably, “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Id. at 1930. Therefore, private companies which maintain public online forums may “exercise editorial discretion over the speech and speakers in [s...