Section 230 Ends Demonetized YouTuber’s Lawsuit–Lewis v. Google

June 4, 2020 · by · in Content Regulation, Derivative Liability, Licensing/Contracts, Marketing

Lewis ran a YouTube channel called “Misandry Today.” Misandry is hatred of men, like misogyny but with reversed genders. I didn’t look at Lewis’ content but I worry that its examples of alleged misandry actually might be presented to advance a misogynistic narrative. Whatever the case, YouTube demonetized, restricted, or removed some of his videos. He sued YouTube for:

  • violating the First Amendment
  • national origin discrimination (allegedly, YouTube acted because he “is a patriotic American citizen who promotes Constitutional rights of Americans, Christian beliefs and American laws and culture”)
  • Lanham Act false advertising
  • fraud
  • breach of the implied covenant of good faith/fair dealing
  • tortious interference

He also claimed Section 230 is unconstitutional “because it allows Defendants to censor without liability and because the statute is vague, overbroad, and internally inconsistent.”

Remarkably, this is NOT a pro se lawsuit. Lewis’ lawyer is Andrew Lee Martin of Colorado, a/k/a “drewmesq@aol.com.” Nevertheless, the court easily grants Google’s 12(b)(6) motion to dismiss and sends this case to its seemingly inevitable appeal.

Constitutional Challenges to Section 230. Reflecting the prevailing (and baffling) conservative obsession with Section 230(c)(2)(A), Lewis apparently challenges the constitutionality only of that. The court says he lacks standing for that challenge because YouTube only relied on Section 230(c)(1). Regarding Section 230(c)(1), the court says that it doesn’t conflict with the First Amendment because (c)(1) doesn’t restrict any speech (indeed, as I’ve explained, it’s a speech-enhancing statute to supplement the First Amendment’s protections for free speech). This isn’t a new legal conclusion; other cases include the 2003 Green v. AOL ruling (cited); Richard v. Facebook; and American Freedom Defense Initiative v. Lynch.

Section 230(c)(1). The court evaluates the standard three-element test for Section 230:

  • ICS Provider. YouTube/Google are ICS providers. Cites to Bennett v. Google; Black v. Google; Gonzalez v. Google; Lancaster v. Alphabet.
  • Publisher/Speaker Treatment. “Plaintiff charges Defendants with wrongfully demonetizing, censoring, restricting and removing his videos. The Ninth Circuit has made clear that removing or restricting postings falls within a publisher’s traditional functions.” Cites to Barnes v. Yahoo; Ebeid v. Facebook; Roommates.com. The court adds that demonetization decisions are analogous to removal decisions, so they too qualify as editorial decisions (“Both fall under the rubric of publishing activities”).
  • Third-Party Information. Lewis’ videos are third-party content to YouTube. Cites to Riggs v. MySpace; Ebeid; Lancaster.

Having satisfied all three elements, YouTube qualifies for the Section 230(c)(1) immunity. This ends all of Lewis’ claims other than the Constitutional challenges–including, of note, the alleged Civil Rights Act Title II discrimination claim. See the uncited Wilson v. Twitter case. To reiterate the lawsuit’s lack of merit, the court then independently rejects each claim on its prima facie elements.

Violation of the First Amendment. Lewis claimed that YouTube became a state actor due to its alleged entanglements with the federal and various foreign governments. The court says YouTube didn’t act under the color of state law.

Civil Rights Act Title II. The court says Title II applies only to “physical facilities” (another cite to the old Noah v. AOL case). Contrary cases under Title III (the ADA) don’t apply due to different statutory language.

Lanham Act False Advertising. Lewis lacks standing because he’s a YouTube consumer, not competitor. Furthermore, any YouTube claims about being an open forum didn’t injure his reputation. Per the PragerU case, those statements are also puffery.

Fraud. YouTube didn’t have any disclosure duties to Lewis; and YouTube’s TOS disclosed lots of things.

Good Faith and Fair Dealing:

the contracts he had with Defendants authorized them to remove, restrict and demonetize his posted videos unilaterally, at their discretion….Defendants’ removal or demonetization of Plaintiff’s videos with “Hateful content” or hate speech was authorized by the parties’ agreements and cannot support a claim for breach of the implied covenant of good faith and fair dealing.

Tortious Interference. Lewis basically didn’t allege any of the elements.

Implications

There is a robust genre of “butthurt conservative” lawsuits, with each case advancing Breitbart-quality legal arguments to try to overcome the Constitutionally protected editorial discretion of Internet services. Honestly, blogging these cases is exhausting due to the mind-numbing repetitiveness of their bogus arguments. While Section 230 did apply to this case, the opinion showed how these cases will fail with or without Section 230. (See also Freedom Watch v. Google, which failed without any reference to Section 230). That’s why I find it so exasperating that “conservatives” want to eviscerate Section 230 even though that wouldn’t produce the results they profess to want.

Still, Section 230 helps accelerate the inevitable denouement in these cases (one of the reasons why I think Section 230 is “better” than the First Amendment). If we lifted Section 230’s clear rule of law currently discouraging unmeritorious plaintiffs, the result would be a litigation tsunami of cases by butthurt social media users.

Finally, the Constitutional challenge to Section 230 failed here, as it should. Here’s a better example of what *isn’t* constitutional: pretty much every desired outcome of Trump’s anti-Section 230 Executive Order.

Case citation: Lewis v. Google LLC, 2020 WL 2745253 (N.D. Cal. May 21, 2020). The complaint. The complaint has many amazing lines; my favorite: “GOOGLE knowingly and actively foments insurrection against the United States government by: (1) funding non-profit organizations like the Southern Poverty Law Center.” Just a reminder, this was NOT a pro se lawsuit.

Bonus Coverage: We Are the People, Inc. v. Facebook, Inc., 2020 WL 2908260 (S.D.N.Y. June 3, 2020). Due to its TOS, the court granted Facebook’s venue transfer request in another case over the removal of the plaintiff’s content.

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