Case 5:20-cv-07502-BLF Document 27 Filed 11/03/20 Page 1 of 10
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`JOHN DOE, et al.,
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`Plaintiffs,
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`v.
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`GOOGLE LLC, et al.,
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`Case No. 20-cv-07502-BLF
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`ORDER DENYING APPLICATION
`FOR TEMPORARY RESTRAINING
`ORDER
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`Defendants.
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`Plaintiffs John Doe, Michael Doe, James Doe, Henry Doe, Robert Doe, Christopher Doe,
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`Matthew Doe, Polly St. George, Scott Degroat, David J. Hayes, Daniel Lee, Mishel Mccumber,
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`Jeff Pedersen, Jordan Sather, and Sarah Westall (collectively, “Plaintiffs”) filed the complaint in
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`this action on October 26, 2020, asserting claims against Defendants Google LLC (“Google”) and
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`YouTube LLC (“YouTube”) for breach of contract, breach of covenant of good faith and fair
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`dealing, and violation of First Amendment right to freedom of speech. See Compl., ECF 1. The
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`next day, Plaintiffs filed a motion seeking a temporary restraining order (“TRO”) and an order to
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`show cause why a preliminary injunction should not issue. See Mot., ECF 8. In light of the time
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`between the conduct alleged in the complaint and the application for the TRO, The Court directed
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`Defendants to respond by October 30, 2020. ECF 16. The Court held a video hearing on the
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`motion on November 2, 2020, at which Plaintiffs and Defendants’ counsels appeared. As set forth
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`below, Plaintiffs’ motion is DENIED.
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`I.
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`BACKGROUND
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`Plaintiffs are “journalists, videographers, advocates, commentators and other individuals who
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`Case 5:20-cv-07502-BLF Document 27 Filed 11/03/20 Page 2 of 10
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`regularly exercise their right to free speech under the First Amendment of the Constitution of the
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`United States.” Compl. ¶ 1. Defendants are YouTube, an online video-sharing platform, and
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`Google, YouTube’s parent company.
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`Plaintiffs created eighteen channels on the YouTube platform. Id. Plaintiffs describe their
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`channels as “extremely controversial” “conservative news” channels that feature content about
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`“Hunter Biden and the Ukraine scandal,” “the ongoing corruption probe,” “social media
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`censorship,” “race relations or protests in America,” and “anonymous posts on political issues by
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`someone identifying themselves as ‘Q.’” Mot. at 8, 15; Compl. ¶ 8. Plaintiffs allege that as of
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`October 15, 2020, their channels attracted over 4.5 million subscribers and over 800 million
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`views. Id. In posting content to the YouTube platform, Plaintiffs entered into a contract with
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`YouTube, as detailed in YouTube’s Terms of Service (“TOS”). Compl. ¶ 1; see ECF 21-1, Exhs. 1
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`(TOS), 2 (Community Guidelines), 3 (harassment and cyberbullying policy), 4 (hate speech
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`policy), and 5 (channel or account terminations).
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`Although the complaint and TRO application provide only vague descriptions about the
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`content on Plaintiffs’ channels, Defendants offer further details. Defendants submitted the
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`declaration of a YouTube employee who works on the company’s Trust and Safety team.
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`YouTube Decl., ECF 21-1. The employee stated that Plaintiffs’ channels “were rife with content
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`espousing harmful conspiracy theories” and contained videos with “horrifying and unsubstantiated
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`accusations of violent and criminal conduct supposedly committed by specific individuals.”
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`Oppo., ECF 21, at 5 (citing YouTube Decl., ¶¶ 23-25). For example, the employee reported that
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`videos posted on the channel “JustInformed Talk” suggested that Hillary Clinton “was involved
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`with satanic rituals with children,” (including “human ritual sacrifice”) while videos posted on the
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`“TRUReporting” channel made claims about famous Americans, including that one “eats babies,”
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`another “killed his wife,” others are “pedophiles or ‘pedowoods,’” and others still “breed children
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`Case 5:20-cv-07502-BLF Document 27 Filed 11/03/20 Page 3 of 10
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`in order to sell them.” YouTube Decl. ¶¶ 23-24.
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`On October 2, 2020, the United States House of Representatives passed Resolution 1154 that
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`“condemn[ed] QAnon and reject[ed] the conspiracy theories it promotes” based on the fact that
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`QAnon conspiracy motivated anti-Semitism and domestic extremists to engage in criminal or
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`violent activity. Condemning QAnon and rejecting the conspiracy theories it promotes, H.R. Res.
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`1154, 116th Cong. (2020). The Resolution further highlighted that “Facebook, Twitter, and
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`Google [had already] removed or blocked QAnon groups and content from their platforms for
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`violating their policies against misinformation, bullying, hate speech, and harassment.” Id.
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`On October 15, 2020, YouTube announced that it would “tak[e] another step in [its] efforts to
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`curb hate and harassment by removing more conspiracy theory content used to justify real-world
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`violence.” See “Managing harmful conspiracy theories on YouTube,” YouTube, Oct. 15, 2020,
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`https://blog.youtube/news-and-events/harmful-conspiracy-theoriesyoutube. The post explicitly
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`mentioned QAnon. Id. To this end, YouTube amended its Community Guidelines harassment and
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`cyberbullying policy to include a new example of prohibited behavior: “Targeting an individual
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`and making claims they are involved in human trafficking in the context of a harmful conspiracy
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`theory where the conspiracy is linked to direct threats or violent acts.” Compare ECF 14, Exh. C
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`(Internet Archive, October 15, 2020) with ECF 14, Exh. D (Internet Archive, October 17, 2020).
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`That same day, YouTube “abruptly instigated a mass purge of conservative accounts,
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`including those operated by plaintiffs, based on its ‘hate and harassment’ policies” (“the
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`Takedown”). Compl. ¶ 6. This purge included Plaintiffs’ YouTube channels. Defendants
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`confirmed that YouTube “terminated (i.e., removed) Plaintiffs’ channels from the YouTube
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`service for multiple violations of the Community Guidelines.” YouTube Decl. ¶ 22. Plaintiffs
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`contend that the Takedown occurred before YouTube amended its Community Guidelines. Mot. at
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`6. Defendants, however, maintain that the Takedown occurred only after the Community
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`Case 5:20-cv-07502-BLF Document 27 Filed 11/03/20 Page 4 of 10
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`Guidelines were amended. YouTube Decl. ¶ 22.
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`Plaintiffs submitted evidence that they received an email notice from YouTube that their
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`YouTube channel had been suspended or deleted. See ECF 14 at 8 ¶ 8, 11 ¶ 8, 14 ¶ 8, 17 ¶ 8, 20 ¶
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`8, 22 ¶ 8, 25 ¶ 8, 27 ¶ 8, 29 ¶ 8, 31 ¶ 8, 34 ¶ 8, 36 ¶ 8, 38 ¶ 8, 40 ¶ 8, 43 ¶ 8 (declarations). The
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`notice referenced YouTube’s cyberbullying and harassment policy, although Plaintiffs believe that
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`“[their] content was not cyberbullying or harassing in the ways described in the policy that existed
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`on or before October 15, 2020.” Id. YouTube’s Trust and Safety team member explained that
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`YouTube terminated Plaintiffs’ channels because videos in those channels “may incite others to
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`‘take action’ and may cause harm to our users or other people.” YouTube Decl. ¶ 26. The
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`employee pointed to a May 2019 Federal Bureau of Investigation bulletin that cited QAnon as
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`among the conspiracy theories that “very likely will emerge, spread, and evolve in the modern
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`information marketplace, occasionally driving both groups and individual extremists to carry out
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`criminal or violent acts.” Id.
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`Plaintiffs filed suit in this Court alleging that Defendants violated their contractual and First
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`Amendment rights when they “excised them and their political viewpoints from the YouTube
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`platform without notice, just days 19 before the 2020 presidential election.” Compl. ¶¶ 1, 69-215
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`(claims for relief). Plaintiffs request the Court issue a TRO that the “Defendants, along with their
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`agents, employees, and successors, shall be restrained and enjoined from breaching their contract
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`with Plaintiffs, as set forth in YouTube’s Terms of Service, by taking down their videos and/or
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`YouTube channels that discuss, analyze, or mention “QAnon.”” Mot. at 18. Plaintiffs seek an
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`injunction compelling YouTube to restore their content.
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`II.
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`LEGAL STANDARD
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`Preliminary injunctive relief, whether in the form of a temporary restraining order or a
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`preliminary injunction, is an “extraordinary and drastic remedy,” that is never awarded as of right.
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`Case 5:20-cv-07502-BLF Document 27 Filed 11/03/20 Page 5 of 10
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`Munaf v. Geren, 553 U.S. 674, 689-690 (2008) (internal citations omitted). “It is so well settled as
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`not to require citation of authority that the usual function of a preliminary injunction is to preserve
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`the status quo ante litem pending a determination of the action on the merits.” Tanner Motor
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`Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808 (9th Cir. 1963). A temporary restraining order is “not
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`a preliminary adjudication on the merits but rather a device for preserving the status quo and
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`preventing the irreparable loss of rights before judgment.” Sierra On-Line, Inc. v. Phoenix
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`Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984) (citation omitted).
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`The standard for issuing a temporary restraining order is identical to the standard for issuing a
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`preliminary injunction. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839
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`n.7 (9th Cir. 2001); Lockheed Missile & Space Co. v. Hughes Aircraft, 887 F. Supp. 1320, 1323
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`(N.D. Cal. 1995). An injunction is a matter of equitable discretion and is “an extraordinary remedy
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`that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter
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`v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking preliminary
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`injunctive relief must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to
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`suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in
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`his favor, and [4] that an injunction is in the public interest.” Id. at 20. “[I]f a plaintiff can only
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`show that there are serious questions going to the merits – a lesser showing than likelihood of
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`success on the merits – then a preliminary injunction may still issue if the balance of hardships tips
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`sharply in the plaintiff's favor, and the other two Winter factors are satisfied.” Friends of the Wild
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`Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks and citations omitted).
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`Because the Plaintiffs here seek a mandatory injunction—one that “orders a responsible party
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`to ‘take action’’—“[they] must establish that the law and facts clearly favor [their] position, not
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`simply that [they are] likely to succeed.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH &
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`Co., 571 F.3d 873, 879 (9th Cir. 2009) (quoting Meghrig v. KFC W., Inc., 516 U.S. 479, 484
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`Case 5:20-cv-07502-BLF Document 27 Filed 11/03/20 Page 6 of 10
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`(1996); Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015).
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`III. DISCUSSION
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`After carefully considering the parties arguments in the briefing and at the motion hearing, the
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`Court concludes Plaintiffs have not satisfied the requirements for issuance of a TRO.
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`A. Anonymous Declaration
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`As an initial matter, the Court considers Defendants’ submission of a declaration by an
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`anonymous YouTube employee who works on YouTube’s Trust and Safety team. See YouTube
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`Decl.; see also ECF 25. Plaintiffs objected, arguing that Defendants were required to explain the
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`circumstances justifying anonymity. See ECF 23 at 1. The Court requested Defendants
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`demonstrate good cause for the anonymous declaration along with a signed version of the affidavit
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`be delivered to the Court in hard copy for in camera review. See ECF 25. The Court concludes that
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`there is good cause to redact the name of the declarant. And, having conducted an in camera
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`review of the declaration, the Court is satisfied that a real individual employed at YouTube as
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`described in the declaration has signed it.
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`B. Likelihood of Success on the Merits
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` “The first factor under Winter is the most important—likely success on the merits.” Garcia,
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`786 F.3d at 740. As noted above, because Plaintiffs seek a mandatory injunction, they “must
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`establish that the law and facts clearly favor [their] position, not simply that [they are] likely to
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`succeed.” Id. at 740. Plaintiffs fall short of this bar.
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`Although Plaintiffs’ lawsuit is based on contract and First Amendment theories, their TRO
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`application focuses on their contract-based claims. See, e.g., Mot. at 12-15 (arguing that Plaintiffs
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`did not materially breach the TOS contract). Plaintiffs argue that under the TOS there are only
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`three circumstances under which Defendants may terminate or suspend their channels:
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`“YouTube may suspend or terminate your access, your Google
`account, or your Google account’s access to all or part of the Service
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`Case 5:20-cv-07502-BLF Document 27 Filed 11/03/20 Page 7 of 10
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`if (a) you materially or repeatedly breach this Agreement; (b) we are
`required to do so to comply with a legal requirement or a court order;
`or (c) we believe there has been conduct that creates (or could create)
`liability or harm to any user, other third party, YouTube or our
`Affiliates.”
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`Mot. at 12; see ECF 21-1, Exh. 1, “Account Suspension & Termination.” Defendants respond that
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`this provision is inapt here because it only governs YouTube’s right to “suspend or terminate your
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`access, your Google account, or your Google account’s access to all or part of the Service.” Oppo.
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`at 8-9; see ECF 21-1, Exh. 1, “Account Suspension & Termination.” They argue that YouTube did
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`not suspend or terminate Plaintiffs’ access to YouTube or their Google accounts, but rather
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`suspended Plaintiffs’ channels and removed the videos and other features associated with those
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`channels. Oppo. at 9. The Takedown, Defendants contend, is thus governed by the TOS provisions
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`titled “Content on the Service” and “Removal of Content by YouTube.” Id.; see ECF 21-1, Exh. 1.
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`These provisions state that
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`Content is the responsibility of the person or entity that provides it
`to the Service. YouTube is under no obligation to host or serve
`Content. If you see any Content you believe does not comply with
`this Agreement,
`including by violating
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`Guidelines or the law, you can report it to us.
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`ECF 21-1, Exh. 1, “Content on the Service,” and
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`If we reasonably believe that any Content is in breach of this
`Agreement or may cause harm to YouTube, our users, or third
`parties, we may remove or take down that Content in our discretion.
`We will notify you with the reason for our action unless we
`reasonably believe that to do so: (a) would breach the law or the
`direction of a legal enforcement authority or would otherwise risk
`legal liability for YouTube or our Affiliates; (b) would compromise
`an investigation or the integrity or operation of the Service; or (c)
`would cause harm to any user, other third party, YouTube or our
`Affiliates. You can learn more about reporting and enforcement,
`including how to appeal on the Troubleshooting page of our Help
`Center.
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`ECF 21-1, Exh. 1, “Removal of Content by YouTube.” The Defendants claim that YouTube
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`permissibly suspended Plaintiffs’ channels after concluding that the channels “amounted to
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`material that could cause real-world harm to users and third parties.” Oppo. at 9 (citing YouTube
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`Decl. ¶¶ 22-26).
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`Upon reviewing YouTube’s TOS agreement in totality, the Court agrees with Defendants.
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`Defendants plausibly argue that the actions they took were made under YouTube’s TOS Provision
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`“Removal of Content by YouTube.” See Lewis v. Google LLC, 461 F. Supp. 3d 938, 962 (N.D.
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`Cal. 2020) (“YouTube’s terms and guidelines explicitly authorize YouTube to remove or
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`demonetize content that violate its policies, including ‘Hateful content.’ Therefore, Defendants’
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`removal or demonetization of Plaintiff’s videos with ‘Hateful content’ or hate speech was
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`authorized by the parties’ agreements and cannot support a claim for breach of the implied
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`covenant of good faith and fair dealing.”); Mishiyev v. Alphabet, Inc., 444 F. Supp. 3d 1154, 1159
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`(N.D. Cal. Mar. 13, 2020), appeal docketed, No. 10-15657 (9th Cir. Apr. 14, 2020) (YouTube did
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`not breach TOS by removing plaintiffs’ videos where the TOS “authorized YouTube to do exactly
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`that”). Both Plaintiffs’ declarations and the email notice forwarded by the Defendants indicate that
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`the action Defendants took was against Plaintiffs’ YouTube accounts, not their Google accounts.
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`See ECF 14 at 8 ¶ 8, 11 ¶ 8, 14 ¶ 8, 17 ¶ 8, 20 ¶ 8, 22 ¶ 8, 25 ¶ 8, 27 ¶ 8, 29 ¶ 8, 31 ¶ 8, 34 ¶ 8, 36
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`¶ 8, 38 ¶ 8, 40 ¶ 8, 43 ¶ 8 (“suspension or deletion of my channel”); ECF 21-1, Exh. 9. (“YouTube
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`account”); see also YouTube Decl. ¶ 28.
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`The parties also dispute whether the Community Guidelines were amended before or after the
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`Takedown occurred. The Court notes that there is contested evidence before it on this point, which
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`in and of itself prevents the Plaintiffs from meeting their high burden. And, even if the Court were
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`to accept Plaintiffs’ Takedown timeline, that YouTube added a new example of violative conduct
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`to its harassment and cyberbullying policy does not change the calculus here. Indeed, it is
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`undisputed that at the time of the Takedown, the harassment and cyberbullying policy otherwise
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`remained the same and still prohibited “[c]ontent that threatens individuals is not allowed on
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`YouTube.” ECF 14, Exhs. C, D; ECF 21-1, Exh. 3.
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`With respect to Plaintiffs’ argument that YouTube contractually owed them an explanation for
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`why their channels were suspended or deleted, Plaintiffs’ own declarations belie this theory as
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`they state that YouTube referenced its harassment and cyberbullying policy in its email notices to
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`the Plaintiffs. See ECF 14 at 8 ¶ 8, 11 ¶ 8, 14 ¶ 8, 17 ¶ 8, 20 ¶ 8, 22 ¶ 8, 25 ¶ 8, 27 ¶ 8, 29 ¶ 8, 31 ¶
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`8, 34 ¶ 8, 36 ¶ 8, 38 ¶ 8, 40 ¶ 8, 43 ¶ 8; see also ECF 21-1, Exh. 9. The contract did not require
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`that Plaintiffs agree with the reasoning YouTube provided. And, in addition to providing Plaintiffs
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`with cause for the termination, it provided them with an appeal process. ECF 21-1, Exh. 1 at 4,
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`“Removal of Content by YouTube” (“You can learn more about reporting and enforcement,
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`including how to appeal on the Troubleshooting page of our Help Center.”), Exh. 9. The Plaintiffs
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`do not appear to have attempted to avail themselves of this process.
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`Finally, Plaintiffs conceded at the motion hearing that they did not establish a First
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`Amendment theory in their TRO application. Accordingly, the Court does not consider the merits
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`of such a theory at this time.
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`C. Remaining Factors
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`Because the Court has concluded that Plaintiffs have failed to show, at “an irreducible
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`minimum that there is a fair chance of success on the merits,” the Court cannot enter injunctive
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`relief based on the remaining three factors. Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th
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`Cir. 1984).
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`IV. ORDER
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`The Court DENIES Plaintiffs’ motion for a TRO. This Order is without prejudice to
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`Plaintiffs’ filing a motion for preliminary injunction
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`IT IS SO ORDERED.
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`Case 5:20-cv-07502-BLF Document 27 Filed 11/03/20 Page 10 of 10
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`Dated: November 3, 2020
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`______________________________________
`BETH LABSON FREEMAN
`United States District Judge
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`28
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`Northern District of California
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`United States District Court
`
`