Daniels v. Alphabet Inc.

MARSHALL DANIELS, Plaintiff, v. ALPHABET INC., et al., Defendants.

Case No. 20-cv-04687-VKD

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

March 31, 2021

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

Re: Dkt. No. 18

In this action against defendants Alphabet, Inc. ("Alphabet"), Google LLC ("Google"), YouTube, LLC ("YouTube"), and Does 1 through 10, plaintiff Marshall Daniels asserts the following claims: (1) violation of Mr. Daniels's First Amendment rights under 42 U.S.C. § 1983; (2) breach of the implied covenant of good faith and fair dealing; (3) conversion; (4) unjust enrichment; (5) breach of contract; (6) money had and received; (7) unfair competition under California Business and Professions Code §§ 17200, et seq.; (8) fraud in the inducement; and (9) wire fraud. Dkt. No. 1. Mr. Daniels asserts his First Amendment claim against all defendants and asserts the remaining claims against only YouTube and the Doe defendants. This Court has federal question jurisdiction over Mr. Daniels's § 1983 claim and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a). Dkt. No. 1 ¶ 36. The Court also has jurisdiction over this diversity action under 28 U.S.C. § 1332.¹

Defendants move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and based on the immunity provided by Section 230 of theCommunications Decency Act ("CDA"), 47 U.S.C. § 230(c) and defendants' own First Amendment rights. Dkt. No. 18. The Court heard oral argument on defendants' motion on October 6, 2020.² Dkt. No. 24. Having considered the parties' briefs and the arguments made at the hearing, the Court grants defendants' motion to dismiss with leave to amend only as to Mr. Daniels's breach of contract claim.

I. BACKGROUND³

A. The Parties

Defendant Alphabet is a Delaware corporation with its principal place of business in Mountain View, California, and the parent of company of defendants YouTube and Google. Dkt. No. 1 ¶ 41. Defendant YouTube is a Delaware limited liability company with principal places of business in Mountain View and San Mateo, California. Id. ¶ 43. YouTube is an online video hosting platform. See id. ¶¶ 6, 8. Defendant Google is a Delaware corporation with a principal place of business in Mountain View, California. Id. ¶ 42. Among other things, Google provides support for and offers advertising and monetization services to YouTube users. See id. ¶¶ 9-10, 13, 30.

Mr. Daniels describes himself as a "teacher, scholar, musician, fighter, and father." Id. ¶ 5. He resides in New York. Id. ¶ 40. Under the name "Young Pharaoh," he has uploaded videos and live commentary concerning "social, political and educational" issues to YouTube since July 2015. Id. ¶¶ 5, 6.

B. YouTube's Service

Use of YouTube's service requires agreement to YouTube's Terms of Service.⁴ See id.¶¶ 85, 39, 54; see also Dkt. No. 18-2 at 2 ("Please read this Agreement carefully and make sure you understand it. If you do not understand the Agreement, or do not accept any part of it, then you may not use the Service."). The Terms of Service in operation at the time the complaint was filed state that "YouTube is under no obligation to host or serve Content," and that "[u]sing the Service does not give you ownership of or rights to any aspect of the Service . . . ." Dkt. No. 18-2 at 3. The Terms of Service further state with respect to removal of content:

If we reasonably believe that any Content is in breach of this Agreement or may cause harm to YouTube, our users, or third parties, we may remove or take down that Content in our discretion. We will notify you with the reason for our action unless we reasonably believe that to do so: (a) would breach the law or the direction of a legal enforcement authority or would otherwise risk legal liability for YouTube or our Affiliates; (b) would compromise an investigation or the integrity or operation of the Service; or (c) would cause harm to any user, other third party, YouTube or our Affiliates.

Id. at 4.

The Terms of Service incorporate the YouTube Community Guidelines; YouTube's Policy, Safety, and Copyright Policies; and, where applicable, the Advertising on YouTube Policies. Id. at 2. The Terms of Service also include YouTube's COVID-19 Medical Misinformation Policy, which states:

YouTube doesn't allow content that spreads medical misinformation that contradicts the World Health Organization (WHO) or local health authorities' medical information about COVID-19. This is limited to content that contradicts WHO or local health authorities' guidance on:

• Treatment

• Prevention

• Diagnostic

• Transmission

Dkt. No. 18-8 at 1.

C. Mr. Daniels's Videos

On April 21, 2020, Mr. Daniels live-streamed a video entitled, "Fauci Silenced Dr. JudyMikovits from Warning the American Public" ("the Fauci video"). Dkt. No. 1 ¶ 9. At some point, Mr. Daniels discovered from one of his subscribers that Google and YouTube removed the video. Id. Mr. Daniels says he learned that Google and YouTube removed the Fauci video for violating the YouTube Community Guidelines. He then contacted Google Support to appeal the removal decision, but "no information was provided about what in the video purportedly violated" the Community Guidelines. Id. (emphasis original). Mr. Daniels alleges that a Google Support representative whom he reached via YouTube's "chat" feature agreed to "'look into this so I can share more' and promptly terminated the 'chat' session after Mr. Daniels indicated that he felt his channel was being targeted and that there was nothing wrong with the video." Id. Mr. Daniels does not indicate whether he received further information from YouTube. Regardless, he uploaded the Fauci video again, and it was deleted again on the ground that "This video has been removed for violating YouTube's Community Guidelines." Id.

On May 28, 2020, Mr. Daniels live-streamed a video entitled, "George Floyd, Riots & Anonymous Exposed as Deep State Psyop for NOW" ("the George Floyd video"). Id. ¶ 10. Mr. Daniels says that in the George Floyd video he shared his belief that "the protests are the result of an operation to cause civil unrest, unleash chaos, and turn the public against the President." Id. He "urged African-Americans to stop contributing to social discord." Id. He also "criticized the mayor of Minneapolis, the police, and George Floyd, as well as questioning the motives of the Antifa movement." Id. After three days, YouTube removed the video for violating its policy on harassment and bullying. Id.; see also Dkt. No. 18, Exs. 3 and 4 (Community Guidelines and harassment and cyberbullying policies). Mr. Daniels says he has appealed YouTube's decision to remove the George Floyd video, but he does not describe the outcome of this appeal. Dkt. No. 1 ¶ 10.

Mr. Daniels says that YouTube has "shadowbanned" him and refuses to permit advertising on his videos or channels, even though he is a YouTube Partner entitled to be paid based on watch time and growth in the number of subscribers to his channel. Id. ¶ 11. He also says that YouTube has retained money that his fans and followers have donated to him through Google's SuperChat function. According to Mr. Daniels, Google represents to its users that "SuperChat and SuperStickers are ways to monetize your channel through the YouTube Partner Program. These features let your viewers purchase chat messages that standout and sometimes pin them to the top of a chat feed." Id. ¶ 13. The SuperChat and Super Stickers functions can only be used with videos that comply with YouTube's Community Guidelines. Id. Mr. Daniels maintains that Google and YouTube refuse to identify the policy or guideline they believe his videos violate. Id.

D. Statements from Members of Congress

Mr. Daniels alleges that Congressional representatives coerced defendants into taking action to remove content from the YouTube platform that resulted in YouTube's removal of his videos from the YouTube service. The complaint cites a letter dated February 14, 2019 from Representative Adam Schiff on official letterhead ("the 2019 Schiff letter") to Google CEO Sundar Pichai in which Rep. Schiff states: "I am writing out of my concern that YouTube is surfacing and recommending messages that discourage parents from vaccinating their children, a direct threat to public health, and reversing progress made in tackling vaccine-preventable diseases. . . . There is strong evidence to suggest that at least part of the source of this [anti-vaccination] trend is the degree to which medically inaccurate information about vaccines surface[s] on the websites where many Americans get their information, among them YouTube and Google search." Id. ¶ 20, Ex. A at 1. In the letter, Rep. Schiff asks Google to provide additional information on its plans to provide medically accurate information on vaccinations to its users, and he approves of YouTube's announcement that it would no longer recommend videos that violate its Community Guidelines, including conspiracy theories or medically inaccurate videos. Id., Ex. A at 2. Rep. Schiff also "encourage[s] further action to be taken related to vaccine misinformation." Id.

Mr. Daniels says that on July 16, 2019, a Google representative testified before the Senate Judiciary Committee that Google had begun "targeting" anti-vaccination speech. Id. ¶ 20.

The complaint also cites an April 29, 2020 letter from Rep. Schiff to Google executives on official letterhead ("the 2020 Schiff letter") in which Rep. Schiff commends Google for the steps it had already taken "to highlight information from official health sources and to remove or limit content that promotes harmful medical misinformation" related to the COVID-19 pandemic. Id.¶ 21, Ex. B at 1. In the letter, Rep. Schiff states: "YouTube's commitment to remove videos with information that is medically unsubstantiated or contradicts World Health Organization (WHO) recommendations is an...