Case 4:21-cv-00548-YGR Document 21 Filed 04/09/21 Page 1 of 5
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`MARIA RUTENBURG,
`Plaintiff,
`
`v.
`
`TWITTER, INC.,
`Defendant.
`
`Case No. 4:21-cv-00548-YGR
`
`ORDER DISMISSING CASE FOR LACK OF
`SUBJECT-MATTER JURISDICTION
`
`Re: Dkt. Nos. 11, 16
`
`
`
`
`
`
`Plaintiff Maria Rutenburg brings this action against defendant Twitter, Inc. based on
`Twitter’s decisions to: (1) delete, remove, and/or apply warning labels to certain tweets regarding
`dishonest claims of election fraud from former President Donald Trump’s account; and
`(2) suspend and thereafter permanently remove Trump’s Twitter account from the Twitter
`platform.1 As alleged in the complaint and reflected in the record, Twitter took these actions in
`response to Trump’s promotion of a stolen election, as well as the inflammatory tweets to the now
`infamous insurrection at the United States Capitol in January 6, 2021. Based on these actions,
`Rutenburg brings one cause of action, a violation of Rutenburg’s federal constitutional rights
`under the First and Fourteenth Amendments pursuant to 42 U.S.C. section 1983.
`The matter is now before the Court based on the parties’ briefing in response to the Court’s
`Order to Show Cause. (Dkt. No. 16.) Specifically, the Court requested the parties to brief
`whether this action should be dismissed given that Twitter, as a private non-state actor, cannot be
`held liable for the 1983 claim at issue. Having reviewed the parties’ briefing, the Court orders that
`this case be DISMISSED for lack of subject matter jurisdiction.
`
`
`1 Rutenburg commenced this lawsuit on January 22, 2021, two days after current United
`States President Joseph R. Biden assumed office.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Northern District of California
`United States District Court
`
`

`

`Case 4:21-cv-00548-YGR Document 21 Filed 04/09/21 Page 2 of 5
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Rutenburg filed a motion for a temporary restraining order shortly after commencing this
`action. (See Dkt. No. 9, 10.) The Court summarily denied this motion (see Dkt. No. 11),
`explaining that a fundamental flaw in Rutenburg’s entire case is that the claimed rights under the
`First Amendment (and the corollary claims under the Fourteenth Amendment) cannot be enforced
`against a private entity such as defendant Twitter. See Manhattan Cmty. Access Corp. v. Halleck,
`139 S.Ct. 1921, 1928 (2019) (“The text and original meaning of those Amendments, as well as
`this Court's longstanding precedents, establish that the Free Speech Clause prohibits only
`governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment
`of speech.” (emphasis in original)); Belgau v. Inslee, 975 F.3d 940, 946 (9th Cir. 2020) (“The
`Supreme Court has long held that ‘merely private conduct, however discriminatory or wrongful,’
`falls outside the purview of the Fourteenth Amendment.” (citing Blum v. Yaretsky, 457 U.S. 991,
`1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982))); Roberts v. AT&T Mobility LLC, 877 F.3d 833,
`837 (9th Cir. 2017) (“A threshold requirement of any constitutional claim is the presence of state
`action. . . . Because the First Amendment right to petition is a guarantee only against abridgment
`by [the] government, . . . state action is a necessary threshold which [a plaintiff] must cross before
`we can even consider whether [a defendant] infringed upon [a plaintiff’s] First Amendment rights
`. . . .” (internal citations and quotation marks omitted)); Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
`157 (1978) (“While as a factual matter any person with sufficient physical power may deprive a
`person of his property, only a State or a private person whose action may be fairly treated as that
`of the State itself . . . may deprive him of an interest encompassed within the Fourteenth
`Amendment's protection . . . .” (internal citations and quotation marks omitted)). Following this
`denial, the Court issued the instant Order to Show Cause. (Dkt. No. 16.)
`A complaint can be dismissed for lack of subject matter jurisdiction if its federal claim is
`“so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely
`devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Env’t,
`523 U.S. 83, 89 (1998). A court may even “act on its own initiative” to dismiss such an inadequate
`complaint. See, e.g., Lampros v. Baker, 650 F. App’x 354, 355 (9th Cir. 2016) (upholding a sua
`sponte dismissal of a Section 1983 claim because the plaintiff had failed to allege state action).
`2
`
`Northern District of California
`United States District Court
`
`

`

`Case 4:21-cv-00548-YGR Document 21 Filed 04/09/21 Page 3 of 5
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Here, in response to the Order to Show Cause, Rutenburg asserts that “Twitter’s conduct
`constitutes state action.” Dkt. No. 17 at 1. This is crucial for Rutenburg to allege because Section
`1983 provides a remedy for the deprivation of federal rights—but only when that deprivation is
`caused by conduct that is “fairly attributable to the State” and therefore undertaken under color of
`state law. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 937 (1982) (emphasis supplied).
`Despite her arguments to the contrary, Twitter is not, in fact, a state actor for purposes of Section
`1983, and therefore cannot be held liable for an alleged deprivation of a federal right.
`As Twitter correctly explains, Lugar sets forth two requirements to determine when
`conduct is attributable to the state. Id. The first requirement concerns the exercise of state
`authority. In connection with a violation of the plaintiff’s federal constitutional rights, a defendant
`must have “exercise[d] . . . some right or privilege created by the State.” Id. at 937. Meanwhile,
`the second requirement, often described as the “state actor” requirement, asks whether the
`defendant is “a person who may fairly be said to be a state actor.” Id.; see also Collins v.
`Womancare, 878 F.2d 1145, 1151 (9th Cir. 1989).
`Here, Rutenburg’s allegation does not and cannot satisfy these two requirements. First,
`Rutenburg makes no allegation that Twitter exercised any state right or privilege to restrict her
`access to former President Trump’s Tweets. Lugar instructs that the alleged deprivation of
`constitutional rights must be rooted in the exercise of a state’s sovereign power. 457 U.S. at 940;
`see also Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922-23 (9th Cir. 2011)
`(analyzing a Section 1983 claim in terms of whether the deprivation was caused by the exercise of
`a right or privilege “created by the State”). Instead, Rutenburg points to a supposed delegation of
`authority from former President Trump to operate what she contends is a public forum. See Dkt.
`No. 2 ¶¶ 4, 57. At best, the amended complaint merely describes how Twitter using its own
`technical means reportedly disabled, removed, and otherwise restricted former President Trump’s
`Tweets and accounts. See id. ¶¶ 3, 28, 30, 32, 33, 37, 40, 42, 44, 47. None of this has any
`connection with the exercise of authority by a sovereign state. Thus, the amended complaint fails
`to allege any conduct with a nexus to a state privilege or power.
`
`
`3
`
`Northern District of California
`United States District Court
`
`

`

`Case 4:21-cv-00548-YGR Document 21 Filed 04/09/21 Page 4 of 5
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Second, Rutenburg’s allegations do not demonstrate that Twitter is an entity that may
`fairly be said to be a state actor. It is undisputed that Twitter is a private company. See Dkt. No. 2
`¶ 14 (“Twitter is a ubiquitous social media company.”); Dkt. No. 17 at 2 (“Twitter is a private
`company.”). Federal courts have uniformly rejected attempts to treat similar social media
`companies as state actors under Section 1983. See, e.g., Prager Univ. v. Google LLC, No. 17-CV-
`06064-LHK, 2018 WL 1471939, at *8 (N.D. Cal. Mar. 26, 2018), aff’d, 951 F.3d 991 (9th Cir.
`2020) (concluding that YouTube did not perform a public function simply by hosting speech on a
`private digital-video platform for the public); Howard v. AOL, 208 F.3d 741, 754 (9th Cir. 2000)
`(finding no subject-matter jurisdiction for a Section 1983 claim because AOL was not a state
`actor, even if it allegedly acted as a “quasi-public utility” that involves “a public trust.”); Ebeid v.
`Facebook, Inc., No. 18-CV-07030-PJH, 2019 WL 2059662, at *6 (N.D. Cal. May 9, 2019)
`(rejecting the argument that Facebook was a state actor because it allegedly regulated speech in a
`public forum); Nyabwa v. Facebook, No. 2:17-CV-24, 2018 WL 585467, at *1 (S.D. Tex. Jan. 26,
`2018) (finding that the plaintiff had failed to state a First Amendment claim because Facebook
`was not the government); Shulman v. Facebook.com, No. CV 17-764 (JMV), 2017 WL 5129885,
`*4 (D.N.J. Nov. 6, 2017) (rejecting the plaintiff’s constitutional claims against Facebook because
`Facebook was not a state actor); Kinderstart.com LLC v. Google, Inc., No. C06-2057 JFRS, 2007
`WL 831806, *13–15 (N.D. Cal. Mar. 16, 2007) (rejecting arguments that Google was a state actor
`for constitutional claims); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 631–32 (D. Del. 2007)
`(ruling that Google is a private entity not subject to the plaintiff’s constitutional claims); and
`Cyber Promotions, Inc. v. Am. Online, Inc., 948 F. Supp. 436, 442 (E.D. Pa. 1996) (concluding
`that AOL “does not stand in the shoes of the State”). Furthermore, as the United States Supreme
`Court recently recognized, “[m]erely hosting speech by others is not a traditional, exclusive public
`function and does not alone transform private entities into state actors subject to First Amendment
`constraints.” Halleck, 139 S. Ct. at 1930. Simply put, Rutenburg cannot transform Twitter into a
`“state actor” based on an allegation that the company “administered” former President Trump’s
`account, which is all that is alleged in the amended complaint.
`
`
`4
`
`Northern District of California
`United States District Court
`
`

`

`Case 4:21-cv-00548-YGR Document 21 Filed 04/09/21 Page 5 of 5
`
`
`
`In sum, Rutenburg has failed to demonstrate that Twitter is a state actor sufficient to
`trigger liability for an alleged deprivation of federal rights under Section 1983. Rutenburg
`conflates decisions finding that former President Trump’s usage of Twitter is a public forum,
`constraining his ability to summarily block critics, and impermissibly attempts to extend this
`underlying logic to Twitter. This fails where Twitter is not a state actor, and is not exercising any
`sovereign state authority. Rutenburg’s citations do not persuade, where such cases concern state
`actors, including elected state or local officials. Rutenburg otherwise fails to cite to a single case
`where a Court has found a private non-state actor liable under Section 1983 for alleged violations
`of constitutional rights in similar circumstances.
`Accordingly, the foregoing reasons, the Court DISMISSES this action for lack of subject
`matter jurisdiction.
`The Clerk of the Court is directed to close this case.
`IT IS SO ORDERED.
`Dated: April 9, 2021
`
`
`
`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
`
`
`
`5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Northern District of California
`United States District Court
`
`