Lewis v. Google LLC

461 F.Supp.3d 938

Bob LEWIS, Plaintiff,

v.GOOGLE LLC, et al., Defendants.

Case No. 20-cv-00085-SK

United States District Court, N.D. California.

Signed May 20, 2020

Andrew Lee Martin, Andrew Martin and Associates, Denver, CO, for Plaintiff.

John Edward Schmidtlein, Williams & Connolly LLP, Washington, DC, Steven Zansberg, Steven David Zansberg, Ballard Spahr LLP, Denver, CO, for Defendants.

ORDER ON MOTION TO DISMISS

Regarding Docket Nos. 23, 24, 27

SALLIE KIM, United States Magistrate Judge

This matter comes before the Court upon consideration of the motion to dismiss filed by Defendants Google Inc. and YouTube, LLC (collectively, "Defendants"). Having carefully considered the parties' papers, relevant legal authority, and the record in the case, the Court hereby GRANTS Defendants' motion for the reasons set forth below. Also pending is a motion for a temporary restraining order and preliminary injunction and a motion for expedited discovery, both filed by Plaintiff Bob Lewis. The Court DENIES Plaintiff's motions as MOOT.

BACKGROUND

Plaintiff "is a societal, cultural, and political commentator who owns and operates the website located at internet DNS address: MisandryToday.com, operates the YouTube Channel Misandry Today, and is the author of The Feminist Lie, It Was Never About Equality." (Dkt. No. 19 (Second Amended Complaint), ¶ 16.) Plaintiff Bob Lewis posts content on YouTube and brings this action to challenge Defendants' treatment of his posted content. (Id. ) He alleges that Defendants are censoring and demonetizing his videos because of Defendants' opposition to Plaintiff's Christian religious affiliation, "national origin as a patriotic American citizen who supports American tradition and culture," and for exercising his First Amendment rights. (Id. , ¶ 1.)

YouTube has a program which enables participants to receive a share of advertising revenue generated from advertisements posted on videos, which the parties label as "monetization." If YouTube determines that certain content is not suitable for advertisement, YouTube may restrict the advertisement, and that action is referred to as "demonetization."

A. State Actor Allegations.

Plaintiff alleges that Defendants are agents of and are "joint enterprise state actors on behalf of the nations of The Peoples Republic of China, the EU, and the signatory governments of the Christchurch Call agreement." (Id. , ¶ 2.) Defendants allegedly enforce Chinese, EU, and Christchurch Call signatory government laws within the United States by criminalizing "hate speech" in violation of the United States Constitution. (Id. )

1. China.

Defendants, along with other technology leaders, meet with the President of China in Seattle in September 2015. (Id. , ¶ 20.) Defendants have at least four offices in China staffed with hundreds of employees and, therefore, are required by the 2017 Chinese National Intelligence Law to "function as a joint enterprise collaborator and agent of the Chinese government." (Id. , ¶ 27.)

Until at least July 2019, Defendants worked on developing a search engine called Project Dragonfly for China that would be compatible with China's state sponsored censorship and intelligence activities. (Id. , ¶¶ 28, 30, 31.)

2. European Union.

In 2012, Defendants created a "Trusted Flagger" program. (Id. , ¶ 37.) On September 22, 2016, Defendants made the following statement:

Back in 2012, we noticed that certain people were particularly active in reporting Community Guidelines violations with an extraordinarily high rate of accuracy. From this insight, the Trusted Flagger program was born to provide more robust tools for people or organizations who are particularly interested in and effective at notifying us of content that violates our Community Guidelines.

As part of this program, Trusted Flaggers receive access to a tool that allows for reporting multiple videos at the same time.

Our Trusted Flaggers' results around flagging content that violates our Community Guidelines speak for themselves: their reports are accurate over 90% of the time. This is three times more accurate than the average flagger.

(Id. ) Ninety percent of the time a Trusted Flagger flags a video for removal, that video is taken offline. (Id. ) One news outlet reported that British authorities are among the Trusted Flaggers. The report stated that of the 200 people and organizations included in the pool of Trusted Flaggers, ten slots were filled by governmental agencies. (Id. , ¶ 38.)

Another news organization reported that Defendants, along with Facebook, Twitter and Microsoft were working with the European Union to fight hate speech. (Id. , ¶ 39.) Google's public policy and government relations director made the following public statement: "we have always prohibited illegal hate speech on our platforms ... We are pleased to work with the Commission to develop co-and self-regulatory approaches to fighting hate speech online." (Id. )

Defendants signed the European Union's Code of Conduct Agreement in which they committed to removing illegal hate speech. (Id. , ¶ 41.) Defendants are abiding by the European Union's Code of Conduct and have been expanding the censorship of hate speech into the United States. (Id. , ¶ 45.)

3. Christchurch Call Agreement.

A news organization reported that multiple governments, including Britain, Canada, Australia, Jordan, Senegal, Indonesia, Norway and Ireland, and big technology companies, including Defendants, pledged to tackle terrorist and extremist violence online in response to the attack on the Christchurch mosque. (Id. , ¶ 52.) The United States refused to sign on due to freedom of speech concerns. (Id. , ¶ 53.)

Defendants committed to sharing information with other online service providers and foreign governments and notifying each other when they take down online content they disagree with. (Id. , ¶ 55.) Online service providers, including Defendants, also agreed to work with the signatory governments to shut down accounts. (Id. , ¶ 56.)

4. Google's Interactions with the United States Government.

Google won an exclusive, no-bid $27 million contract to provide the National Geospatial-Intelligence Agency with geospatial visualization services. (Id. , ¶ 196.)

Additionally, news organizations have reported that the Pentagon, the Census Bureau, and intelligence agencies are working with Google and other large technology companies on the Pentagon's artificial intelligence and to fend off "fake news" and online disinformation campaigns (Id. , ¶¶ 197-199.)

B. Defendants' Conduct in the United States.

Defendants operate the largest publicly accessible commercial website for people to purchase, rent, and view videos, movies and television shows in the United States. (Id. , ¶ 64.)

All registered users of YouTube.com are required to sign YouTube's Terms of Service. (Id. , ¶ 81.) YouTube's Terms of Service require users to stipulate they will not submit any content or material contrary to YouTube's Guidelines, or contrary to local, national, or international laws and regulations. (Id. , ¶ 84.)

C. Defendants' Conduct Towards Plaintiff.

Plaintiff joined YouTube as a registered user on August 13, 2016. (Id. , ¶ 118.) Plaintiff created a channel called "Misandry Today" and online he used the name of DDJ. (Id. , ¶ 119.) Plaintiff published his first YouTube video, a commercial for his book The Feminist Lie, It Was Never About Equality, on May 29, 2017. (Id. , ¶ 120.) Plaintiff published a video commentary entitled, "The Social Media Constitutional Crisis" on YouTube.com on October 28, 2017. (Id. , ¶ 121.) Plaintiff published a video commentary entitled, "The Feminist & SJW Treason" on YouTube.com on November 3, 2017. (Id. , ¶ 122.) Plaintiff published a video commentary entitled, "The Legal Controversies Surrounding Social Media Companies" on YouTube on March 20, 2018. (Id. , ¶ 123.)

Starting on October 28, 2017, YouTube demonetized many of Plaintiff's videos. (Id. , ¶ 124.) Plaintiff filed appeals with YouTube. He won many of his appeals, but he lost 19. (Id. , ¶ 124.) For the appeals he won, YouTube did not compensate Plaintiff for the revenue he lost from the demonetization. (Id. ) YouTube also restricted and removed some of Plaintiff's videos. (Id. , ¶¶ 163, 165-169.)

YouTube maintains at least one, and possibly more, blacklists. (Id. , ¶ 171.) Defendants also created at least two programming frameworks which enable Defendants to "shadow ban," conceal, demote, or censor videos and other online content. (Id. , ¶¶ 172, 174.)

YouTube allows content creators to share advertisement revenue in return for posting video content, which is known as monetization and is part of Google's Adsense program. (Id. , ¶ 193.) Website owners can join Google's Adsense program and get paid for advertisements on their websites. (Id. , ¶ 194.) Google also runs an auction which allows advertisers to bid on ad placement. (Id. , ¶ 195.)

D. YouTube's Terms and Guidelines.¹

To participate in YouTube's partner program and receive a share of advertising revenue generated from advertisements posted on videos ("monetization"), participants must agree to YouTube's Partner Program Terms. (Dkt. No. 28, ¶ 4, Ex. A.). The Partner Program Terms incorporate the YouTube's Terms of Service and YouTube's Partner Program Policies (now referred to as the "YouTube Monetization Policies"), which refer to YouTube's Advertiser-Friendly Content Guidelines. (Id. , ¶¶ 5, 8, 10, 11, Exs. A, C, D.) YouTube's Terms of Service incorporates YouTube's Community Guidelines. (Id. , ¶ 9, Ex. B.)

YouTube's Partner Program Terms provide in relevant part that "YouTube is not obligated to display any advertisements alongside your videos and may determine the type and format of ads available on the YouTube Service." (Id. , Ex. A, ¶ 1.1.) YouTube's Community Guidelines state:

If you think content is inappropriate, use the flagging feature to submit it for review by our YouTube staff. Our staff carefully reviews flagged content 24 hours a day, 7 days a week to

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