`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 1 of 13
`
`
`MICHAEL D. GRANSTON
` Deputy Assistant Attorney General
`ERIC WOMACK
` Assistant Branch Director
`INDRANEEL SUR
`Trial Attorney
`Civil Division, Federal Programs Branch
`indraneel.sur@usdoj.gov
`D.C. Bar No. 978017
`P.O. Box 883
`Washington, D.C. 20044
`Telephone: (202) 616-8488
`Facsimile: (202) 616-8470
`
`
`Counsel for the United States of America
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`
`
`
`
`KIMBERLY CARLESTE
`NEWMAN, et al.,
`
`Plaintiffs,
`
`vs.
`
`GOOGLE LLC, et al.,
`
`Defendants.
`
`Case No. 5:20-cv-04011-LHK
`
`MEMORANDUM OF LAW FOR
`INTERVENOR UNITED STATES
`IN SUPPORT OF THE
`CONSTITUTIONALITY OF
`47 U.S.C. § 230(c), AND IN RESPONSE
`TO DEFENDANTS’ MOTION TO
`DISMISS
`
`Action Filed: June 16, 2020
`Trial Date: None Set
`Rule 5.1 Notice Filed: June 16, 2020
`
`
`
`
`
`
`
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c)
`Case No. 5:20-cv-04011-LHK
`
`
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`
`
`
`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 2 of 13
`
`
`
`
`TABLE OF CONTENTS
`
`
`INTRODUCTION .......................................................................................................... 1
`
`STATEMENT ................................................................................................................. 3
`
`ARGUMENT .................................................................................................................. 6
`
`I.
`
`II.
`
`The Court Should First Decide The Potentially Dispositive
`Statutory Issues Because They May Obviate The Need To
`Address Plaintiffs’ Constitutional Challenge ........................................ 6
`
`If The Court Reaches the Question, It Should Conclude That
`Section 230(c) Is Constitutional .............................................................. 7
`
`CONCLUSION ............................................................................................................... 9
`
`
`
`
`
`
`
`
`
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c) - i -
`Case No. 5:20-cv-04011-LHK
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`
`
`
`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 3 of 13
`
`
`
`
`TABLE OF AUTHORITIES
`
`
`
`Cases
`
`Denver Area Educ. Telecommc’s Consortium, Inc. v. FCC,
`518 U.S. 727 (1996) .......................................................................................... 2, 7, 8, 9
`
`Divino Grp. LLC v. Google LLC,
`No. 19-CV-04749-VKD, 2021 WL 51715 (N.D. Cal. Jan. 6, 2021) ...... 1, 2, 6, 7, 8, 9
`
`N.Y.C. Transit Auth. v. Beazer,
`440 U.S. 568 (1979) ...................................................................................................... 6
`
`Prager Univ. v. Google LLC (“Prager I”),
`No. 17-cv-06064-LHK, 2018 WL 1471939 (N.D. Cal. Mar. 26, 2018) ..................... 9
`
`Prager University v. Google LLC (“Prager III”),
`951 F.3d 991 (9th Cir. 2020) ............................................................................ 2, 4, 8, 9
`
`Roberts v. AT&T Mobility LLC,
`877 F.3d 833 (9th Cir. 2017) .................................................................................... 2, 9
`
`Statutes
`
`28 U.S.C. § 2403 ........................................................................................................... 6, 7
`
`47 U.S.C. § 230(C) ................................................................................................... 1, 5, 9
`
`Pub. L. No. 104-104, 110 Stat. 56 (1996) ....................................................................... 1
`
`Executive Materials
`
`Executive Order 13,925, 85 Fed. Reg. 34079 (May 28, 2020) ..................................... 7
`
`
`
`
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c) - ii -
`Case No. 5:20-cv-04011-LHK
`
`
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`
`
`
`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 4 of 13
`
`
`INTRODUCTION
`As part of this action seeking to impose liability for the alleged content
`moderation decisions of the Internet platform YouTube, Plaintiffs have raised a
`constitutional challenge to § 230(c) of the Communications Decency Act of 1996
`(“CDA”) (Pub. L. No. 104-104, § 509, 110 Stat. 56, 138, codified at 47 U.S.C.
`§ 230(c)). In seeking Rule 12(b)(6) dismissal of the operative complaint, YouTube
`has invoked the statute as an affirmative defense to Plaintiffs’ claims, and Plaintiffs
`have responded by arguing, among other things, that the statute violates the First
`Amendment insofar as it shields YouTube from liability for Plaintiffs’ claims.
`Plaintiffs also seek a declaratory judgment to that effect.
`The United States intervenes today in response to Plaintiffs’ constitutional
`challenge, as the United States did in the prior action to which this action is related,
`Divino Group LLC v. Google LLC, No. 5:19-cv-04749-VKD (N.D. Cal.) (“Divino”).
`The similarity of the cases is indicated by Plaintiffs’ attachment of the United
`States’ brief in intervention in Divino to the operative complaint in this action as
`Exhibit C. The United States relies on the arguments in that brief in intervention,
`and limits its arguments herein only to points necessary to address matters not
`raised in the Divino brief. See Ex. C to Rev. 2d Am. Compl (“SAC”), Doc. 27 at
`ECF pp. 227-43 (“U.S. Divino Br.”).
`First, under the doctrine of constitutional avoidance, this Court should start
`by deciding the statutory and common law arguments raised in the Rule 12(b)(6)
`motion, because those non-constitutional grounds may obviate the need for decision
`on any constitutional question. See Divino, 2021 WL 51715, at *11 (N.D. Cal. Jan.
`6, 2021) (declining to decide constitutional question, including because of avoidance
`doctrine). Because the United States is intervening here for the limited purpose of
`defending the constitutionality of § 230(c), it does not take a position on whether
`Plaintiffs have plausibly alleged any claim for relief, or whether, if plausibly
`alleged, any claim falls within the liability limitation provided by § 230(c).
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c) - 1 -
`Case No. 5:20-cv-04011-LHK
`
`
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`
`
`
`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 5 of 13
`
`
`Second, if the Court concludes that it must reach the constitutional question,
`Plaintiffs’ challenge should be rejected on the merits. Section 230(c) does not
`regulate Plaintiffs’ primary conduct. Instead, the statute establishes a rule
`prohibiting liability for certain conduct by online platforms, including YouTube.
`Assuming the liability prohibition is at issue in this action, that liability prohibition
`would not violate the First Amendment because—as Prager University v. Google
`LLC, 951 F.3d 991 (9th Cir. 2020) (“Prager III”) squarely held—YouTube is not a
`state actor capable of denying freedom of speech, and § 230(c) thus would not deny
`Plaintiffs any constitutional claim they otherwise would have. See U.S. Divino Br.
`at ECF pp. 239-43.
`Somewhat varying from their approach to the constitutional argument in
`Divino, Plaintiffs now rely almost entirely on the plurality opinion in Denver Area
`Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996),
`in arguing that § 230(c) is unconstitutional. But the Denver Area plurality opinion
`cannot be read to support an expansion of the state action precedents applied in
`Prager III. See Roberts v. AT&T Mobility LLC, 877 F.3d 833, 839-41 (9th Cir.
`2017). Plaintiffs have not alleged in this case a relationship between YouTube and
`the government anywhere akin to the unusual relationship at issue in Denver Area.
`So this Court need go no further than to follow Prager III, and hold that YouTube
`is not a state actor constrained by the First Amendment. See Divino, 2021 WL
`51715, at *7 (following AT&T Mobility in refusing to extend Denver Area
`plurality).
`In short, as in Divino, if Plaintiffs’ constitutional challenge in this action to
`§ 230(c) is reached after deciding all non-constitutional questions, that challenge
`should be rejected.
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c) - 2 -
`Case No. 5:20-cv-04011-LHK
`
`
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`
`
`
`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 6 of 13
`
`
`STATEMENT
`The United States has previously described at length the statutory
`background concerning § 230(c) of the CDA, and accordingly will not repeat that
`background here. See U.S. Divino Br. at ECF pp. 233-35.
`Plaintiffs in this action describe themselves as “African American content
`creators” who make videos, including many that “discuss issues of importance to
`their communities.” SAC ¶¶ 1, 65(c); see SAC ¶ 56 (Plaintiffs “identify as African
`American, or” are in “other protected racial classifications under the law”).
`YouTube, owned by Google, is allegedly the dominant Internet video platform, with
`“complete, absolute, and ‘unfettered’ control over access to approximately 95% of
`all video content that is available to the public world-wide,” and mastery over
`“posting” and “revenue monetization for the rights of the 2.3 billion consumers”
`who use YouTube. SAC ¶ 39.
`Plaintiffs allegedly contracted with YouTube, licensing it to distribute their
`videos while agreeing that YouTube retained various rights—including the right to
`enforce its community guidelines, and the right to determine “in its sole discretion”
`whether the videos contained “material . . . in violation of” the agreement. SAC
`¶¶ 102, 105; see also Defs.’ Rule 12 Memorandum at 4, Doc. 29 (Nov. 2, 2020)
`(“Mem.”) (describing platform’s “content guidelines” as “designed to ensure that
`ads do not appear alongside videos with content that certain audiences might find
`objectionable”). YouTube “monetize[s]” the videos by selling advertisements for
`display along with them, and some Plaintiffs have paid YouTube to promote their
`videos (individually or grouped into channels) to potential viewers. See SAC ¶¶ 42,
`63, 65(d). YouTube allegedly retains “unfettered ‘discretion’ to serve as sole
`‘censors’ of content” on the site. SAC ¶ 63.
`One way that YouTube exercises that discretion is through its “Restricted
`Mode.” “Restricted Mode” works “much like a curtain” to “block[] access” by
`“younger, sensitive audiences to video content that contains certain specifically
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c) - 3 -
`Case No. 5:20-cv-04011-LHK
`
`
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`
`
`
`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 7 of 13
`
`
`enumerated ‘mature’ aspects.” SAC ¶ 136. When a viewer turns on “Restricted
`Mode” for a personal account (or when it is activated by a parent or system
`administrator, such as one acting on behalf of a public library, school, or other work
`place) and lands on a video placed in “Restricted Mode,” YouTube displays a
`warning, stating that the video is unavailable and that to view the video the viewer
`would “need to disable Restricted Mode.” SAC ¶¶ 24, 140, 325. YouTube allegedly
`tells viewers who inquire that videos are shunted into “Restricted Mode” when they
`include, among other things, “overly detailed conversations about or depictions of
`sex or sexual activity,” “inappropriate language, including profanity,” or other
`sensitive content. SAC ¶¶ 65(c), 142, 144, 154. “On average, 1.5–2% of users view
`YouTube through Restricted Mode.” See Prager III, 951 F.3d at 996 (describing
`Restricted Mode).
`YouTube has styled itself (including in testimony to Congress) as a “neutral
`public forum.” SAC ¶¶ 79, 92. But Plaintiffs allege YouTube has used its
`“monopoly power over the video posting and viewership market” against Plaintiffs,
`“because Defendants do not like or agree with the speakers’ race, identity or point
`of view; or because Defendants are too cheap to actually review the videos posted
`to the platform, and desire to rely on inexpensive [Artificial Intelligence, or “A.I.”],
`algorithms, and other filtering tools for purposes of selling advertisements and
`curating videos on YouTube.” SAC ¶ 149. In particular, Plaintiffs allege that
`YouTube placed some of their videos into “Restricted Mode,” or rendered certain
`videos ineligible for generation of advertising revenue by “demonetizing” them,
`justified by YouTube’s false assertions that the videos contained “inappropriate”
`content. See SAC ¶¶ 65(a), 65(c), 474, 496; see SAC ¶¶ 182, 215, 251, 287, 327
`(allegations regarding particular named Plaintiffs). Plaintiffs allege that they have
`been “forc[ed]” to “self-censor,” in that they “avoid or hide references” to “terms
`such as” “Black Lives Matter.” SAC ¶ 65(a); see SAC ¶¶ 128, 190, 261.
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c) - 4 -
`Case No. 5:20-cv-04011-LHK
`
`
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`
`
`
`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 8 of 13
`
`
`the episodes of “Restricted Mode” and
`to Plaintiffs,
`According
`demonetization misuse they allege are not isolated; rather, YouTube “increased the
`racial profiling and ‘targeting’ of African American and members of other protected
`racial classifications under the law who use YouTube.” SAC ¶ 53. YouTube
`purportedly has a “policy and practice of using A.I., algorithms, and other filtering
`tools to classify, curate, censor, and sell advertisements for YouTube videos based
`on metadata Defendants create from information regarding the race, identity and
`viewpoint of creators, subscribers and viewers, rather than the content of the
`videos.” SAC ¶¶ 182, 215, 251; see SAC ¶¶ 54-55 (citing transcript of communication
`with Google Support staff in Bangalore, India as allegedly constituting concession
`by YouTube that it has a “pattern, practice or ‘policy’ of denying users equal access
`. . . based on their race, sexual orientation, or other individual identities or
`viewpoints”).
`Among other claims in their Complaint, Plaintiffs seek a declaration that 47
`U.S.C. § 230(c), if applied “in any way to permit and immunize race, sex, or other
`identity or viewpoint based profiling and regulation of content and access on
`YouTube is unconstitutional and violates the First Amendment.” SAC, Prayer for
`Relief, ¶ 1(c) (emphasis added); see SAC ¶ 17(i) (summarizing relief sought as
`judgment that, inter alia, “Section 230(c)
`including declaratory
`is an
`unconstitutional ‘permissive’ speech restriction law”); accord SAC ¶¶ 109-11
`(further summarizing Plaintiffs’ theory of constitutional invalidity). Defendants
`moved to dismiss under Rule 12(b)(6). Doc. 29 (Nov. 2, 2020) (“Mem.”). They
`contend that the SAC fails to state any facially plausible claim for relief. Mem. 7-
`21. In the alternative, they assert that the claims are “separately barred,” first, by
`§ 230(c)(1), because they seek to impose liability for YouTube’s editorial decisions,
`Mem. 21-22, and, second, by § 230(c)(2)(B), because the claims seek compensation
`for “action[s]” YouTube took “to enable or make available” to viewers “the technical
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c) - 5 -
`Case No. 5:20-cv-04011-LHK
`
`
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`
`
`
`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 9 of 13
`
`
`means to restrict access” to material considered to be “objectionable.” Mem. 22-23.
`Defendants then assert that the statute is constitutional. Mem. 23-25.
`In opposing dismissal, Plaintiffs contend that YouTube’s misconduct falls
`outside § 230(c). Pls.’ Opp’n to Defs.’ Mot. to Dismiss 20-24 (Doc. 43, Jan. 25, 2021)
`(further revised and corrected version) (“Opp.”). Moreover, if § 230(c) is construed
`to bar the claims, Plaintiffs argue that the statute is unconstitutional as applied,
`because it is purportedly a “permissive speech law,” akin to the statute at issue in
`Denver Area. Opp. 24-25.
`This Court has not yet certified any constitutional question under 28 U.S.C.
`§ 2403 and Rule 5.1. On February 9, 2021, the Court ordered that by March 22,
`2021, “the government must file (1) a notice of intervention or non-intervention,
`and (2) if the government so chooses, a response . . . to Defendants’ motion to
`dismiss.” Doc. 49.
`
`ARGUMENT
`I. The Court Should First Decide The Potentially Dispositive Statutory
`Issues Because They May Obviate The Need To Address Plaintiffs’
`Constitutional Challenge
`As an initial matter, this Court should not address the constitutionality of
`§ 230(c) unless the Court first determines that Defendants’ motion to dismiss
`cannot be resolved on non-constitutional grounds. See U.S. Divino Br. at ECF pp.
`238-39 (urging adherence to constitutional avoidance doctrine); see also Divino,
`2021 WL 51715, at *11 (“bear[ing] in mind the doctrine of constitutional avoidance”
`among several reasons for declining to decide constitutional challenge to § 230(c)).
`This Court should adhere to that doctrine of constitutional avoidance here,
`and decline to rule on the constitutionality of § 230(c) unless the motion to dismiss
`cannot be resolved on other grounds. Where “dispositive” statutory grounds may
`be available, it is “incumbent on” this Court to examine and decide the case on those
`grounds first. Cf. N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568, 582 (1979) (“Before
`deciding the constitutional question, it was incumbent on [lower courts] to consider
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c) - 6 -
`Case No. 5:20-cv-04011-LHK
`
`
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`
`
`
`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 10 of 13
`
`
`whether the statutory grounds might be dispositive.”). The United States is
`intervening solely for the purpose of defending the constitutionality of § 230(c), and
`takes no position on the merits of any non-constitutional issues, including whether
`Plaintiffs’ claims (if plausibly alleged) are claims for which Defendant cannot be
`held liable under § 230(c).
`In that regard, Plaintiffs’ allegations regarding Executive Order 13,925
`(SAC ¶¶ 374-77, 402-03) (“Order”) are of no consequence to the motion to dismiss,
`or to the United States’s right to intervene in this action under 28 U.S.C. § 2403 or
`through the Rule 5.1 process. As an initial matter, the Order confers no rights on
`Plaintiffs or any other private party enforceable in this action. See Order § 8(c), 85
`Fed. Reg. 34079, 34083 (May 28, 2020) (“This order . . . does not, create any right
`. . . enforceable . . . by any party against the United States . . . or any other person”).
`In any event, Plaintiffs are wrong to assert that there is a “conflict” between the
`Order and the United States’ intervention in this action, given that the United
`States is taking no position on whether Plaintiffs’ alleged claims fall within the
`scope of § 230(c), and nothing in the Order purports to take a position on the
`constitutionality of § 230(c). See Order §§ 1-2, 4(a), 85 Fed. Reg. at 34079-81. Thus,
`as in Divino, the Order has no effect on the motion to dismiss or on the
`Government’s intervention. See 2021 WL 51715, at *4 (declining Plaintiffs’ request
`to take judicial notice of Order, because “the Executive Order has no bearing on
`defendants’ motion to dismiss”).
`II. If The Court Reaches the Question, It Should Conclude That
`Section 230(c) Is Constitutional
`If the Court were to reach the constitutional question, it should conclude that
`Plaintiffs’ challenge fails on the merits. See U.S. Divino Br. at ECF pp. 239-43.
`In a variation on their constitutional challenge in Divino, Plaintiffs’
`constitutional challenge now appears to focus solely on the plurality opinion in
`Denver Area, 518 U.S. at 738-39, 766. Compare Divino Pls.’ Rule 12(b)(6) Opp. 19-
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c) - 7 -
`Case No. 5:20-cv-04011-LHK
`
`
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`
`
`
`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 11 of 13
`
`
`21, 31-34 (Doc. 28) (Feb. 24, 2020) (not citing Denver Area), with Opp. 23-24, 28-30
`(citing Denver Area). But even that apparent distinction is merely a matter of
`emphasis: The Divino Plaintiffs did explicitly rely on Denver Area in their brief
`responding to the United States’ intervention brief. See Divino Pls.’ Resp. to U.S.
`Mot. to Intervene 1-2, 4-6 (Doc. 55) (May 26, 2020). And the court in Divino
`considered and rejected Plaintiffs’ contention that YouTube is a state actor
`constrained by the First Amendment, including Plaintiffs’ argument based on
`Denver Area. See Divino, 2021 WL 51715, at *6-7.
`Plaintiffs’ reliance on Denver Area is misplaced, as the court in Divino
`correctly reasoned. The Ninth Circuit has squarely held that YouTube is not a
`state actor capable of violating the First Amendment. See Prager III, 951 F.3d at
`999. And, accordingly, § 230(c) does not deprive Plaintiff of a First Amendment
`claim they would otherwise be able to maintain against YouTube.
`Denver Area does not support a different conclusion. Denver Area
`concerned § 10(c) of the Cable Television Consumer Protection and Competition
`Act of 1992, which regulated “public access channels” required by local
`governments for public, educational, and governmental programming, and
`permitted a cable system operator to allow or prohibit “programming” on those
`public access channels that the operator “reasonably believes . . . depicts sexual . .
`. activities or organs in a patently offensive manner.” 518 U.S. at 727. The plurality
`opinion written by Justice Breyer concluded that there was state action sufficient
`to apply the First Amendment, and went on to invalidate that provision under strict
`scrutiny. 518 U.S. at 738-39, 766.
`The Denver Area plurality did not, however, establish a separate
`“permissive speech” doctrine in the manner asserted by Plaintiffs. Instead, the
`plurality grounded its state action analysis on the unique power wielded by cable
`system operators over leased and public access channels. Indeed, the Ninth Circuit
`has interpreted Denver Area narrowly, emphasizing that it was a “splintered”
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c) - 8 -
`Case No. 5:20-cv-04011-LHK
`
`
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`
`
`
`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 12 of 13
`
`
`decision, and underscoring that it warrants only a “confined reading,” not a reading
`that suggests an expansion of state action precedent. See AT&T Mobility, 877 F.3d
`at 839-41.
`Section 230(c) simply does not resemble the cable system statute invalidated
`by the Denver Area plurality. There, as AT&T Mobility summarized, “cable
`operators were empowered by statute to censor speech on public television, and as
`a result were ‘unusually involved’ with the government given their monopolistic-
`like power over cable systems.” 877 F.3d at 841 (citing Denver Area, 518 U.S. at
`739 (plurality op.), 782 (Kennedy, J., concurring in part, concurring in the judgment
`in part, and dissenting in part). But, as the court noted in Divino, 2021 WL 51715,
`at *7, such “unique characteristics of cable systems are not at issue here,” 877 F.3d
`at 841. Plaintiffs have not alleged, and have no basis for alleging, government
`involvement
`in YouTube’s activities akin to the “unusual[]” government
`“involve[ment]” at issue in Denver Area, and that decision is not a basis for
`concluding YouTube is a state actor subject to the First Amendment. See Prager
`III, 951 F.3d at 999; AT&T Mobility, 877 F.3d at 841; see also Prager Univ. v.
`Google LLC (“Prager I”), No. 17-cv-06064-LHK, 2018 WL 1471939, at *8 (N.D. Cal.
`Mar. 26, 2018) (concluding that Denver Area did not support contention that
`YouTube is a state actor), aff’d, 951 F.3d at 999.
`Denver Area thus adds nothing to Plaintiffs’ constitutional contention, and
`§ 230(c) accordingly does not violate the First Amendment as alleged by Plaintiffs.
`CONCLUSION
`For the foregoing reasons, in addition to those set forth by the United States
`in Divino, the Court should decide Defendants’ Rule 12(b)(6) motion without
`reaching any constitutional question if possible. If the Court reaches Plaintiffs’
`challenge to the constitutionality of 47 U.S.C. § 230(c), it should reject the
`challenge.
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c) - 9 -
`Case No. 5:20-cv-04011-LHK
`
`
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`
`
`
`
`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
`
`Case 5:20-cv-04011-LHK Document 54 Filed 03/22/21 Page 13 of 13
`
`
`DATED: March 22, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`MICHAEL D. GRANSTON
`Deputy Assistant Attorney General
`
`ERIC WOMACK
`Assistant Branch Director
`
`INDRANEEL SUR
`Trial Attorney
`
`By: /s/ Indraneel Sur
`
`INDRANEEL SUR
`U.S. Department of Justice
`Counsel for the United States of America
`
`
`
`
`
`
`UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF
`CONSTITUTIONALITY OF 47 U.S.C. § 230(c) - 10 -
`Case No. 5:20-cv-04011-LHK
`
`U.S. DEPARTMENT OF JUSTICE
`Civil Division, Federal Programs Branch
`P.O. Box 883
`Washington, DC 20044
`Tel: (202) 616-8488
`
`
`