Yelp, Twitter and Facebook Aren’t State Actors–Quigley v. Yelp

This is a pro se lawsuit against Yelp, Twitter, Facebook and other major companies, so we know the plaintiff’s chances are nil. The plaintiff claims he was unconstitutionally banned by these services and sought a TRO against their bans. The court has little problem concluding that the services aren’t state actors and therefore do not have any constitutional obligations to the plaintiff:

* “he asserts defendants perform a public function by disseminating news and fostering free and public political debate….The dissemination of news and fostering of debate cannot be said to have been traditionally the exclusive prerogative of the government.”

* “plaintiff argues the government financed and created the internet for the benefit of individuals and website owners, and thereby encourages e-commerce. Even assuming the accuracy of this description of the government’s activity with respect to the internet, plaintiff has not articulated a
theory of encouragement or coercion sufficient to show state action because he has neither argued nor alleged that the government encouraged or coerced defendants to take the challenged actions — blocking him from their websites’ comments sections.”

* “plaintiff conclusorily claims the existence of a joint enterprise between defendants and the government, which he states can be inferred from defendants providing information to the electorate on the government’s behalf. This theory, however is not supported by plausible allegations in the complaint”

* “plaintiff proclaims a pervasive entwinement between defendants and the government because the government maintains accounts on the defendants’ websites, and uses their websites to communicate with citizens. Whether or not these claims are true, plaintiff fails to articulate the sort of entwinement that would converts a private party’s actions to state action”

The court does not mention Section 230(c)(2), which provides a safe harbor for online account termination and content blocking. Section 230(c)(2) doesn’t override the constitution, so the plaintiff’s allegations temporarily negated the Section 230(c)(2) defense. With the state action doctrine out of the way, Section 230(c)(2) may mop up any remaining issues.

The court also does not mention the Packingham v. North Carolina ruling, which had some broad language about social media’s importance to our society’s discourse that got some people thinking that courts will be more careful ratifying account terminations or user bans. Perhaps a future challenge will test this issue more squarely, but this opinion looks exactly the same as it would have looked pre-Packingham.

The state action doctrine has potentially earth-shattering implications for the Internet, but the canon of cases discussing it in the past decade are relatively scrappy. See, e.g., Langdon v. Google, Jayne v. Google, Buza v. Yahoo, and Young v. Facebook. Most of the recent cases also involve pro se plaintiffs, and I think the online-service-as-state-actor issue is too big and complicated for pro se success.

Case citation: Quigley v. Yelp, 2017 U.S. Dist. LEXIS 103771 (N.D. Cal. July 5, 2017). The complaint (which has some colorful and tweetable lines).