Court Rejects Lawsuit Alleging YouTube Engaged in Racially Biased Content Moderation–Newman v. Google

June 29, 2021 · by · in Content Regulation, Derivative Liability, Marketing

Plaintiffs are African-American, Mexican, or Puerto Rican operators of YouTube channels, some of which were monetized. The plaintiffs claim the YouTube’s moderation practices targeted them based on their race, including putting their videos into Restricted Mode, demonetizing videos, and various other disadvantageous practices (shadowbanning, ad bombing, etc.). The plaintiffs sued YouTube for the following claims: “(1) request for a declaratory judgment regarding the scope and constitutionality of Section 230 of the CDA; (2) equitable claim for an accounting of debts; (3) conversion; (4) replevin; (5) breach of contract; (6) breach of implied covenant of good faith and fair dealing; (7) promissory estoppel; (8) discrimination in contract in violation of 42 U.S.C. § 1981; (9) discrimination in violation of the Unruh Civil Rights Act; (10) false advertising in violation of the Lanham Act, 15 U.S.C. § 1125; (11) unlawful, deceptive, and unfair business practices in violation of California Business & Professions Code § 17200, et seq. (“UCL”); (12) violation of Article I, Section 2 of the California Constitution; and (13) violation of the First Amendment of the United States Constitution.” The court grants a motion to dismiss.

Section 1981. “Plaintiffs’ only factual allegation in support of an inference that Defendants intentionally and purposefully discrimination against Plaintiffs is Plaintiffs’ belief that Defendants’ moderation decisions were made because of Plaintiffs’ race.” The court says the plaintiffs’ personal feelings of discrimination isn’t sufficient evidence to support the allegations. Furthermore,

The fact that so many of Plaintiffs’ videos remain freely available on YouTube and capable of receiving advertising revenue weighs against an inference that Defendants have intentionally and purposefully discriminated against Plaintiffs on the basis of race. Were race the motivating factor behind Defendants’ moderation decisions, the Court would expect that Plaintiffs’ videos would be largely unavailable and demonetized. For many Plaintiffs, the opposite appears to be true.

First Amendment. YouTube isn’t a state actor. “Plaintiffs would have the Court ignore the Ninth Circuit’s clear holding [in Prager U. v YouTube] that Defendants’ challenged conduct on YouTube does not qualify as state action under the First Amendment. The Court will not do so.”

The plaintiffs also tried the mockable argument that invoking Section 230 constitutes state action. The court responds: “Section 230 lacks the necessary coercive features that the United States Supreme Court has identified as the hallmark of coerced private state action” (cite to Divino).

Lanham Act. The Ninth Circuit rejected identical Lanham Act claims in Prager U. v. YouTube. Reminder: the losing law firm in the Prager case (as well as the Divino case) represented the plaintiffs in this case, so the plaintiffs’ lawyers established the legal rules that contribute to their loss here 💯.

Also, the plaintiffs’ alleged injury (loss of monetization) comes from YouTube’s content moderation decisions, not from any of its alleged false advertising.

Implications

Having dismissed the federal claims, the court declines supplemental jurisdiction over the remaining state law claims. I presume the plaintiffs will amend their federal complaint again (probably to the same effect), but they also can take their case to state courts now or later and see if they can salvage something there (they can’t).

Judge Koh wrote another strong opinion, but the opinion’s (appropriately doctrinal) resolution of specific legal doctrines obscures the case’s critical policy angles. Putting aside the legal nuances, the plaintiffs claim that YouTube engaged in race-based discriminatory content moderation, but there’s no way for plaintiffs to prove this because there’s no baseline of what “unbiased” content moderation looks like. Instead, an unavoidable truth of content moderation: everyone believes that the Internet services are “biased” against them…but it’s impossible for Internet services to be biased against everyone. Without a simple-to-apply legal defense that content moderation is always and inevitably biased and the law offers no remedy for that, we will experience a repetitive cycle of plaintiff attempts to weaponize the law against that truth.

Case citation: Newman v. Google LLC, 2021 WL 2633423 (N.D. Cal. June 25, 2021). The complaint.

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