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More Plaintiffs (and Lawyers) Need To Be Reminded That YouTube Isn’t a State Actor-Divino v. Google – Technology & Marketing Law Blog


This lawsuit, like many others earlier than it, claims that UGC providers like YouTube commit unlawful discrimination based mostly on how they reasonable content material. Despite its lack of novelty, this lawsuit received some media protection for 2 causes: (1) a lot of the prior lawsuits had been professional se, however this one had precise legal professionals with bar licenses and every thing, and (2) the lawsuit was filed on behalf of LGBTQ+ YouTubers whose felt discriminated in opposition to based mostly on their sexual orientation, quite than the extra conventional lawsuits by thin-skinned #MAGA conservatives.

Indeed, the legal professionals on this case represented a “conservative” plaintiff within the PragerU v. YouTube case (which, as you’ll see, produced the adversarial precedent that principally ends their very own case 💯). By advancing the identical claims on behalf of putatively “non-conservative” plaintiffs, the legal professionals possibly thought they had been cleverly demonstrating the complete vary of YouTube’s evil and lining up new allies.

Ironically, the lawsuit supplied prima facie proof undermining their very own instances. If everybody on all sides of the political spectrum really feel like they’re being discriminated in opposition to, it’s basically proof that none of them are being DISCRIMINATED in opposition to. At most, they’re being deprived equally.

Plus, there are second-order issues with claims of discrimination in content material moderation. Content moderation is a synonym for editorial discretion, and that may by no means be applied in a really equal approach. In reality, the intrinsic nature of publishing particularly “discriminates” by privileging some content material over others.

In any case, the lawsuit predictably fails on its lack of authorized deserves.

First Amendment. The court docket 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 the way it reaches this conclusion.

First, the plaintiffs cited YouTube’s statements in opposition to it. Just just like the Ninth Circuit stated in PragerU, the court docket says that advertising can’t rework a personal entity right into a state actor:

To the extent plaintiffs recommend that defendants have successfully declared themselves the equal of “state actors” and have to be treated as such for functions of the First Amendment, plaintiffs cite no authority for such a radical proposition.

Second, the plaintiffs argued that Section 230’s immunity quantities to authorities “endorsement” of on-line discrimination, and that’s sufficient to create state motion. The court docket responds that Section 230 doesn’t compel anybody to do something:

Section 230 doesn’t require non-public entities to do something, nor does it give the federal government a proper to oversee or get hold of details about non-public activity. Furthermore, nothing within the SAC has shown that any governmental actor has actively inspired, endorsed, or participated specifically conduct by YouTube. Specifically, plaintiffs don’t allege that YouTube utilized Restricted Mode designations to a few of plaintiffs’ movies or demonetized them “by compulsion of sovereign authority,” or that the United States “actively encouraged, endorsed, and participated” in discriminatory selections to use Restricted Mode designations to sure movies or to make them ineligible for monetization.

The court docket implies that the evaluation would possibly look in a different way if the federal government had a proper to acquire details about non-public activity. This makes me marvel if a number of the disclosure implications of the EARN IT Act or PACT Act may enhance the dangers that the federal government has turn out to be overly entangled with Internet firms. Not certain which approach that might reduce, nevertheless it’s a problem that might profit from additional evaluate.

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

Unlike the cable techniques operators in Denver Area, YouTube isn’t a government-regulated entity charged with offering public broadcasting providers. And in contrast to the statute at challenge in Denver Area, which permitted cable system operators to ban particular content material, Section 230 of the CDA doesn’t single out explicit sorts of speech as appropriate for personal censorship.

Section 230(c)(2) does privilege some courses of content material over others, however topic to a broad catch-all (providers can filter “otherwise objectionable” thing and nonetheless be eligible for the secure harbor) that has functionally mooted the content material distinctions and alleviated any constitutional stress over content-based distinctions. Many payments in Congress proposed to remove that catch-all, and this case raises the specter that doing so is likely to be an unconstitutional modification to 230(c)(2).

Lanham Act False Advertising. The plaintiffs declare that placing their movies in restricted mode implied that the movies contained dangerous stuff. This runs 100% into the adversarial PragerU precedent the plaintiffs’ legal professionals beforehand helped create:

plaintiffs’ principle is foreclosed by the Ninth Circuit’s choice in Prager III. Considering exactly the identical declare, the Ninth Circuit held that defendants’ statements about movies being unavailable in Restricted Mode weren’t actionable as “commercial advertising or promotion”; they had been merely correct explanations of the applying of defendants’ content material evaluate and monitoring procedures

To get across the squarely-on-point precedent, the plaintiffs argued that they compete with YouTube for viewers and advertisers. (A reminder that plaintiffs routinely overclaim, with out credible supporting proof, that they’re “competitors” of the defendant as a ploy to learn of pro-competition legal guidelines/norms. See, e.g., the Enigma v. Malwarebytes case). The court docket responds: ¯_(ツ)_/¯

The court docket dismisses the Lanham Act declare with out prejudice, so the plaintiffs can strive the Lanham Act declare once more if they need. The court docket additionally dismissed the entire state regulation claims as a result of it declines supplemental jurisdiction. This means the plaintiffs may strive once more in federal court docket, or they might take the whole case again to state court docket.

Section 230. The plaintiffs sought a declaration that Section 230 is unconstitutional. The court docket denies the request on procedural grounds. Courts have often rejected makes an attempt previously to declare Section 230 unconstitutional. See, e.g., Lewis v. Google, Richard v. Google, ADFI v. Lynch.

Just a reminder in regards to the implications of this lawsuit: It sought to power on-line publishers to vary their editorial practices. Though it was higher level on this case on behalf of plaintiffs not ordinarily thought of to be “conservative,” it’s been principally conservatives who’re weaponizing civil rights legal guidelines to advance the reason for censorship. Before you let your sympathies for the plaintiffs or hatred of the defendant cloud your authorized judgment, don’t lose sight of what this lawsuit represented.

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

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