More Plaintiffs (and Lawyers) Need To Be Reminded That YouTube Isn’t a State Actor–Divino v. Google

January 8, 2021 · by · in Content Regulation, Derivative Liability, Marketing

This lawsuit, like many others before it, claims that UGC services like YouTube commit illegal discrimination based on how they moderate content. Despite its lack of novelty, this lawsuit got some media coverage for two reasons: (1) most of the prior lawsuits were pro se, but this one had actual lawyers with bar licenses and everything, and (2) the lawsuit was filed on behalf of LGBTQ+ YouTubers whose felt discriminated against based on their sexual orientation, rather than the more traditional lawsuits by thin-skinned #MAGA conservatives.

Indeed, the lawyers in this case represented a “conservative” plaintiff in the PragerU v. YouTube case (which, as you’ll see, produced the adverse precedent that basically ends their own case 💯). By advancing the same claims on behalf of putatively “non-conservative” plaintiffs, the lawyers maybe thought they were cleverly demonstrating the full range of YouTube’s evil and lining up new allies.

Ironically, the lawsuit provided prima facie evidence undermining their own cases. If everyone on all sides of the political spectrum feel like they are being discriminated against, it’s essentially proof that none of them are being DISCRIMINATED against. At most, they are being disadvantaged equally.

Plus, there are second-order problems with claims of discrimination in content moderation. Content moderation is a synonym for editorial discretion, and that can never be implemented in a truly equal way. In fact, the intrinsic nature of publishing necessarily “discriminates” by privileging some content over others.

In any case, the lawsuit predictably fails on its lack of legal merits.

First Amendment. The court flatly concludes: “plaintiffs do not state a claim under 42 U.S.C. § 1983 for violation of the First Amendment because defendants are not state actors.” Here’s how it reaches this conclusion.

First, the plaintiffs cited YouTube’s statements against it. Just like the Ninth Circuit said in PragerU, the court says that marketing can’t transform a private entity into a state actor:

To the extent plaintiffs suggest that defendants have effectively declared themselves the equivalent of “state actors” and must be treated as such for purposes of the First Amendment, plaintiffs cite no authority for such a radical proposition.

Second, the plaintiffs argued that Section 230’s immunity amounts to government “endorsement” of online discrimination, and that’s enough to create state action. The court responds that Section 230 doesn’t compel anyone to do anything:

Section 230 does not require private entities to do anything, nor does it give the government a right to supervise or obtain information about private activity. Furthermore, nothing in the SAC suggests that any governmental actor has actively encouraged, endorsed, or participated in particular conduct by YouTube. Specifically, plaintiffs do not allege that YouTube applied Restricted Mode designations to some of plaintiffs’ videos or demonetized them “by compulsion of sovereign authority,” or that the United States “actively encouraged, endorsed, and participated” in discriminatory decisions to apply Restricted Mode designations to certain videos or to make them ineligible for monetization.

The court implies that the analysis might look differently if the government had a right to obtain information about private activity. This makes me wonder if some of the disclosure implications of the EARN IT Act or PACT Act could increase the risks that the government has become overly entangled with Internet companies. Not sure which way that would cut, but it’s an issue that would benefit from further review.

The court rejects an analogy to the 1990s-era Denver Area Supreme Court opinion, treating it as specific to broadcasting:

Unlike the cable systems operators in Denver Area, YouTube is not a government-regulated entity charged with providing public broadcasting services. And unlike the statute at issue in Denver Area, which permitted cable system operators to ban specific content, Section 230 of the CDA does not single out particular types of speech as suitable for private censorship.

Section 230(c)(2) does privilege some classes of content over others, but subject to a broad catch-all (services can filter “otherwise objectionable” material and still be eligible for the safe harbor) that has functionally mooted the content distinctions and alleviated any constitutional pressure over content-based distinctions. Many bills in Congress proposed to eliminate that catch-all, and this case raises the specter that doing so might be an unconstitutional amendment to 230(c)(2).

Lanham Act False Advertising. The plaintiffs claim that putting their videos in restricted mode implied that the videos contained bad stuff. This runs 100% into the adverse PragerU precedent the plaintiffs’ lawyers previously helped create:

plaintiffs’ theory is foreclosed by the Ninth Circuit’s decision in Prager III. Considering precisely the same claim, the Ninth Circuit held that defendants’ statements about videos being unavailable in Restricted Mode were not actionable as “commercial advertising or promotion”; they were simply accurate explanations of the application of defendants’ content review and monitoring procedures

To get around the squarely-on-point precedent, the plaintiffs argued that they compete with YouTube for viewers and advertisers. (A reminder that plaintiffs routinely overclaim, without credible supporting evidence, that they are “competitors” of the defendant as a ploy to benefit of pro-competition laws/norms. See, e.g., the Enigma v. Malwarebytes case). The court responds: ÂŻ\_(ツ)_/ÂŻ

The court dismisses the Lanham Act claim without prejudice, so the plaintiffs can try the Lanham Act claim again if they want. The court also dismissed all of the state law claims because it declines supplemental jurisdiction. This means the plaintiffs could try again in federal court, or they could take the entire case back to state court.

Section 230. The plaintiffs sought a declaration that Section 230 is unconstitutional. The court denies the request on procedural grounds. Courts have occasionally rejected attempts in the past to declare Section 230 unconstitutional. See, e.g., Lewis v. Google, Richard v. Google, ADFI v. Lynch.

Just a reminder about the implications of this lawsuit: It sought to force online publishers to change their editorial practices. Though it was advanced in this case on behalf of plaintiffs not ordinarily considered to be “conservative,” it’s been principally conservatives who are weaponizing civil rights laws to advance the cause of censorship. Before you let your sympathies for the plaintiffs or hatred of the defendant cloud your legal judgment, don’t lose sight of what this lawsuit represented.

Case citation: Divino Group LLC v. Google LLC, 2021 WL 51715 (N.D. Cal. Jan. 6, 2021). The complaint.

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