Case 1:16-cv-01437-JEB Document 6-1 Filed 09/28/16 Page 1 of 22

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN FREEDOM DEFENSE
INITIATIVE,
PAMELA GELLER,
ROBERT SPENCER,

Civil Action No. 1:16-cv-01437-JEB

JIHAD WATCH,
Plaintiffs,
v.
LORETTA LYNCH, in her official capacity
as Attorney General of the United States,
Defendant.

FEDERAL DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT

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TABLE OF CONTENTS
PAGE
PRELIMINARY STATEMENT .................................................................................................... 1
STATUTORY AND FACTUAL BACKGROUND ...................................................................... 2
I.

Section 230 of the Communications Decency Act. .................................................2

II.

Factual Background. ................................................................................................4

STANDARD OF REVIEW ............................................................................................................ 5
ARGUMENT .................................................................................................................................. 7
I.

PLAINTIFFS LACK STANDING TO BRING THIS ACTION CHALLENGING
THE CONSTITUTIONALITY OF SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT................................................................7
A. Plaintiffs’ Alleged Injury Is Not Fairly Traceable to Section 230 .................. 8
B. This Court Cannot Redress Plaintiffs’ Alleged Injury. ................................. 10

II.

PLAIINTIFFS FAIL TO IDENTIFY ANY STATE ACTION THAT COULD
IMPLICATE THE FIRST AMENDMENT...........................................................11

CONCLUSION ............................................................................................................................. 17

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TABLE OF AUTHORITIES
CASES

PAGE(S)

1st Westco Corp. v. Sch. Dist. of Phila,
6 F.3d 108 (3d Cir. 1993)..................................................................................................... 11, 13
*Am. Manuf. Mut. Ins. Co. v. Sullivan,
526 U.S. 40 (1999) ........................................................................................................ 12, 13, 15
Arpaio v. Obama,
797 F.3d 11 (D.C. Cir. 2015) ...................................................................................................... 6
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................................... 6
Ass’n of Inv. Brokers v. SEC,
676 F.2d 857 (D.C. Cir. 1982) .................................................................................................. 11
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .................................................................................................................... 6
Blum v. Yaretsky,
457 U.S. 991 (1982) .................................................................................................................. 12
Blumenthal v. Drudge,
992 F. Supp. 44 (D.D.C. 1998) ................................................................................................... 2
Brentwood Academy v. Tennessee Secondary Sch. Athletic Assoc.,
531 U.S. 288 (2001) .................................................................................................................. 11
Browning v. Clinton,
292 F.3d 235 (D.C. Cir. 2002) .................................................................................................... 6
Carafano v. Metrosplash.com, Inc.,
339 F.3d 1119 (9th Cir. 2003) .................................................................................................... 3
Chamber of Commerce of U.S. v. Whiting,
563 U.S. 582 (2011) .................................................................................................................... 9
*Clapper v. Amnesty Int’l USA,
133 S. Ct. 1138 (2013) ................................................................................................................ 7
Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm.,
412 U.S. 94 (1973) .................................................................................................................... 11
DaimlerChrysler Corp. v. Cuno,
547 U.S. 332 (2006) .................................................................................................................... 6
*Denver Area Educ. Telecomms. Consortium, Inc. v. F.C.C.,
518 U.S. 727 (1996) ...................................................................................................... 11, 14, 15
EEOC v. St. Francis Xavier Parochial Sch.,
117 F.3d 621 (D.C. Cir. 1997) .................................................................................................... 6
Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC,
521 F.3d 1157 (9th Cir. 2008) .................................................................................................... 4
Fla. Audubon Soc’y v. Bentsen,
94 F.3d 658 (D.C. Cir. 1996) ...................................................................................................... 8
*Flagg Bros. v. Brooks,
436 U.S. 149 (1978) .................................................................................................................. 13
*Hudgens v. N.L.R.B.,
424 U.S. 507 (1976) .............................................................................................................. 8, 11
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Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,
515 U.S. 557 (1995) .................................................................................................................... 8
Islamic Am. Relief Agency v. Gonzales,
477 F.3d 728 (D.C. Cir. 2007) .................................................................................................... 6
Jackson v. Metropolitan Edison Co.,
419 U.S. 345 (1974) .................................................................................................................. 12
Kemp v. Eiland,
139 F. Supp. 3d 329 (D.D.C. 2015) ............................................................................................ 6
Klayman v. Zuckerberg,
753 F.3d 1354 (D.C. Cir. 2014) .............................................................................................. 2, 3
Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375 (1994) ................................................................................................................ 5, 6
*Kolinske v. Lubbers,
712 F.2d 471 (D.C. Cir. 1983) .................................................................................................. 13
*Lugar v. Edmondson Oil Co.,
457 U.S. 922 (1982) .................................................................................................................. 13
*Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ........................................................................................................... passim
*Lyng v. Northwest Indian Cemetery Protective Ass’n,
485 U.S. 439 (1988) .................................................................................................................... 8
Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241 (1974) .................................................................................................................... 8
Nat’l Taxpayers Union v. U.S. Social Sec. Admin.,
376 F.3d 239 (4th Cir. 2004) ...................................................................................................... 9
New York Republican State Comm. v. S.E.C.,
799 F.3d 1126 (D.C. Cir. 2015) ................................................................................................ 10
*Okpalobi v. Foster,
244 F.3d 405 (5th Cir. 2001) ................................................................................................ 9, 11
*Roberts v. AT&T Mobility LLC,
No. 15-CV-03418-EMC, 2016 WL 1660049 (N.D. Cal. Apr. 27, 2016) ........................... 14, 15
Simon v. Eastern Ky. Welfare Rights Organization,
426 U.S. 26 (1976) ...................................................................................................................... 8
State of W. Virginia v. United States Dep’t of Health & Human Servs.,
145 F. Supp. 3d 94 (D.D.C. 2015) .............................................................................................. 6
Stratton Oakmont, Inc. v. Prodigy Services Co.,
1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995)........................................................................ 3
Tulsa Professional Collection Services, Inc. v. Pope,
485 U.S. 478 (1988) .................................................................................................................. 15
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc.,
454 U.S. 464 (1982) .................................................................................................................... 7
Village of Bensenville v. F.A.A.,
457 F.3d 52 (D.C. Cir. 2006) .................................................................................................... 12
Zeran v. Am. Online, Inc.,
129 F.3d 327 (4th Cir. 1997) .................................................................................................. 2, 3
STATUTES
47 U.S.C. § 230(b) .......................................................................................................................... 3
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47 U.S.C. § 230(c) ...................................................................................................................... 2, 9
47 U.S.C. § 230(c)(1)...................................................................................................................... 2
47 U.S.C. § 230(c)(2)-(A) .............................................................................................................. 4
47 U.S.C. § 230(e)(3)..................................................................................................................... 2
RULES
Fed. R. Civ. P. 12(b)(1)............................................................................................................. 5, 15
Fed. R. Civ. P. 12(b)(6)............................................................................................................. 6, 15

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PRELIMINARY STATEMENT
Plaintiffs are dissatisfied with the manner in which private social media companies—
Facebook, YouTube, and Twitter—are moderating the speech Plaintiffs post to their social media
accounts. But instead of suing the company responsible for running a particular social-media
platform, Plaintiffs have sued the Attorney General of the United States, arguing that her
enforcement of Section 230 of the Communications Decency Act (“CDA”) is facilitating private
censorship and that this facilitation violates the First Amendment of the United States
Constitution. This case is without merit and should be dismissed for two reasons.
First, Plaintiffs cannot establish Article III standing. Plaintiffs’ alleged injury—a private
social-media company’s removal of content from a particular user’s account pursuant to that
company’s private terms of service—is not an action that is fairly traceable to the United States
or the federal statute Plaintiffs identify in their Complaint—Section 230 of the CDA. Instead,
Plaintiffs’ allegations make clear that they are aggrieved by the decisions of private third parties,
whom the United States does not control and whose actions it cannot predict. Plaintiffs’ alleged
injury is also not redressable by their requested relief. Plaintiffs request that the Court declare
Section 230 to be unconstitutional and to enjoin the Attorney General from enforcing this
provision. But the Attorney General does not enforce Section 230 against private parties. To the
contrary, this provision merely provides an immunity that a private party can invoke as a defense
in a private civil lawsuit. Because the Attorney General does not enforce Section 230 against
anyone, an injunction prohibiting such non-existent enforcement would be meaningless and
would not redress Plaintiffs’ alleged injury.
Second, even if Plaintiffs could establish Article III standing, they fail to state a
cognizable constitutional claim because they do not identify any state action that could implicate

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the First Amendment. It is axiomatic that the First Amendment applies only to the
government’s restriction of speech, and not to a private individual or entity’s decision to permit
or restrict speech. Yet Plaintiffs challenge a quintessentially private decision in this case—a
social media company’s control of its platform pursuant to its terms of service. Under wellestablished state-action principles, Plaintiffs cannot show that Section 230 caused the
constitutional deprivation they allege, or that the entities causing the injury—private social
media companies—are state actors. Therefore, Plaintiffs fail to state a claim under the First
Amendment and judgment should be entered in favor of the United States.
STATUTORY AND FACTUAL BACKGROUND
I.

Section 230 of the Communications Decency Act
Section 230 of the Communications Decency Act (“CDA”) immunizes providers of

interactive computer services from civil liability for content created by third-party users. See 47
U.S.C. § 230(c); Klayman v. Zuckerberg, 753 F.3d 1354, 1355-56 (D.C. Cir. 2014). Section
230(c)(1) of the CDA commands that “[n]o provider or user of an interactive computer service
shall be treated as the publisher or speaker of any information provided by another information
content provider.” 47 U.S.C. § 230(c)(1). Section 230(e)(3), in turn, gives that provision
preemptive effect, by expressly preempting any cause of action that would hold an interactivecomputer-service provider liable as a speaker or publisher of speech provided by others. See id.
§ 230(e)(3). By enacting Section 230, “Congress decided not to treat providers of interactive
computer services like other information providers such as newspapers, magazines or television
and radio stations, all of which may be held liable for publishing or distributing obscene or
defamatory material written or prepared by others.” Blumenthal v. Drudge, 992 F. Supp. 44, 49
(D.D.C. 1998).

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Section 230 immunity generally serves two important policy goals. First, Section 230
“maintain[s] the robust nature of Internet communication,” by eliminating “the threat that tortbased lawsuits pose to freedom of speech.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th
Cir. 1997); see also Klayman, 753 F.3d at 1355–56 (explaining that Section 230 is intended “to
preserve the vibrant and competitive free market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or State regulation[.]”) (citing 47 U.S.C.
§ 230(b)(2)). As the Fourth Circuit has explained:
It would be impossible for service providers to screen each of their
millions of postings for possible problems. Faced with potential
liability for each message republished by their services, interactive
computer service providers might choose to severely restrict the
number and type of messages posted. Congress considered the
weight of the speech interests implicated and chose to immunize
service providers to avoid any such restrictive effect.
Zeran, 129 F.3d at 331.
Second, Section 230 removes disincentives to self-regulation by assuring interactivecomputer-service providers that they can safely self-police their online services for offensive
material without fear that their editorial choices might subject them to liability. Zeran, 129 F.3d
at 331; see also Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003)
(“Congress enacted this provision . . . to encourage voluntary monitoring for offensive or
obscene material.”). In this respect, the legislative history shows that Section 230 was intended
to overrule the disincentives to self-regulation created by a New York state-court decision,
Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995).
See, e.g., Zeran, 129 F.3d at 331. Stratton Oakmont held that an interactive-computer-service
provider could be liable for libelous statements posted by an unnamed third-party. Id. The court
reasoned that the provider could be held liable as a publisher of the libelous statements because

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“it advertised its practice of controlling content on its service and because it actively screened
and edited messages posted on its bulletin boards.” Id. Section 230 removes the disincentives to
self-regulation created by Stratton Oakmont and other similar decisions, and thus forbids
imposing liability for actions taken by a service provider to restrict some, but not all, content
posted by third parties. See Fair Hous. Council of San Fernando Valley v. Roommates.Com,
LLC, 521 F.3d 1157, 1163 (9th Cir. 2008) (“Congress sought to spare interactive computer
services this grim choice by allowing them to perform some editing on user-generated content
without thereby becoming liable for all defamatory or otherwise unlawful messages that they
didn’t edit or delete.”). Accordingly Section 230(c)(2) provides “Good-Samaritan” protections
from civil liability for interactive-computer-service providers for “any action voluntarily taken in
good faith to restrict access to or availability of material” that the provider considers to be
objectionable. 47 U.S.C. § 230(c)(2).
II.

Factual Background
Plaintiffs are two non-profit organizations—the American Freedom Defense Initiative

(“AFDI”) and Jihad Watch—and two of these organization’s individual officers—Pam Geller
and Robert Spencer (collectively “Plaintiffs”)—who allege that they exercise their right to
freedom of speech through the use of social media, including Facebook, Twitter, and YouTube.
See Compl. ¶¶ 6, 10, 11, 18. Plaintiffs allege a single constitutional claim under the First
Amendment. Compl. ¶¶ 128-141. Plaintiffs generally claim that “Facebook, Twitter, and
YouTube censor voices they dislike, and Facebook and Twitter often allow threats directed
against those same voices to remain, thereby engaging in unlawful discrimination and
censorship, all of with is made possible by § 230 of the CDA.” Compl. ¶ 125. Plaintiffs also
complain about specific instances in which Facebook, YouTube, or Twitter allegedly have

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censored Plaintiffs’ social media activity on the basis of content or in a discriminatory manner:
(1) Plaintiff Geller alleges that Facebook removed certain content from her “Islamic-JewHatred” page and her “Stop Islamization of America” page pursuant to Facebook’s Community
Standards, Compl. ¶¶ 78-87; (2) Plaintiff Geller alleges that YouTube officials removed a video
from her YouTube channel “that was of a first-hand undercover investigation conducted in the
Al-Farooq mosque in Nashville, Tennessee,” Compl. ¶ 102; (3) Plaintiff Spencer alleges that the
name of his organization, Jihad Watch, is protected by U.S. copyright and trademark law, and
that Facebook and Twitter have incorrectly determined that the use of this name by another user
does not constitute trademark infringement, Compl. ¶¶ 118-20; and (4) Plaintiff Spencer alleges
that an unnamed individual has used Twitter and Facebook to issue threats to his safety, and that
Twitter and Facebook have declined to remove the material. Compl. ¶¶ 121-24.
To remedy the manner in which Facebook, Twitter, and YouTube are censoring
Plaintiffs’ social media accounts, Plaintiffs ask the Court to declare that Section 230 of the
Communications Decency Act is unconstitutional and to enjoin any enforcement of the statute.
Compl. at 24, Prayer for Relief ¶ A-B. Plaintiffs contend that Section 230 “permits Facebook,
Twitter, YouTube and others to engage in government-sanctioned discrimination and the
suppression of free speech.” Compl. ¶ 2; see also id. ¶ 66 (“[B]y way of § 230 of the CDA, the
federal government is empowering discrimination and the censorship of speech in these vast
democratic forums.”); id. ¶ 67 (“Section 230 permits content- and viewpoint-based censorship of
speech.”); id. ¶ 68 (“Section 230 confers broad powers of censorship, in the form of a ‘heckler’s
veto,’ upon Facebook, Twitter, and YouTube censors, who can censor constitutionally protected
speech and engage in discriminatory business practices with impunity by virtue of this power
conferred by the federal government.”); id. ¶ 74 (“Section 230 permits Facebook, Twitter, and

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YouTube to engage in government sanctioned discrimination and censorship of free speech.”).
The sole Defendant named in the Complaint is Loretta Lynch, sued in her official capacity as
Attorney General of the United States. Compl. ¶ 28.
STANDARD OF REVIEW
Defendant moves to dismiss Plaintiffs’ claims under Rule 12(b)(1) for lack of subject
matter jurisdiction, on the ground that Plaintiffs have failed to establish standing. In reviewing a
motion to dismiss under Rule 12(b)(1), a court is guided by the principle that “[f]ederal courts
are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377
(1994). Thus, “a federal court must presume that it ‘lack[s] jurisdiction unless the contrary
appears affirmatively from the record.’” State of W. Virginia v. United States Dep’t of Health &
Human Servs., 145 F. Supp. 3d 94, 98 (D.D.C. 2015) (quoting DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 342 n. 3 (2006)). “The burden of demonstrating the contrary, including
establishing the elements of standing, ‘rests upon the party asserting jurisdiction.’” Id. (quoting
Kokkonen, 511 U.S. at 377). When considering jurisdiction based on the face of a plaintiff’s
complaint, a court “must accept ‘well-pleaded factual allegations as true and draw all reasonable
inferences from those allegations in the plaintiff’s favor.’” Id. (quoting Arpaio v. Obama, 797
F.3d 11, 19 (D.C. Cir. 2015)). However, the court need not “assume the truth of legal
conclusions,’” id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), “nor ‘accept inferences
that are unsupported by the facts set out in the complaint,’” id. (quoting Islamic Am. Relief
Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007)). Rather, in order to avoid dismissal, a
complaint must “contain sufficient factual matter ‘to state a claim [of standing] that is plausible
on its face.’” Id. (quoting Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

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Defendant also moves in the alternative for dismissal pursuant to Fed. R. Civ. P. 12(b)(6),
on the ground that Plaintiffs fail to state a claim upon which relief can be granted. A Rule
12(b)(6) challenge “tests the legal sufficiency of a complaint.” Kemp v. Eiland, 139 F. Supp. 3d
329, 335 (D.D.C. 2015) (citing Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)). In
evaluating such a claim, the plausibility requirement of Ashcroft and Twombly applies to the
merits of a plaintiff’s claims. See id. Thus, in order to withstand a motion to dismiss under Rule
12(b)(6), a plaintiff must “plead[] factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678.
The court may “consider only the facts alleged in the complaint, any documents either attached
to or incorporated in the complaint and matters of which [the court] may take judicial notice.”
Kemp, 139 F. Supp. 3d at 335-36 (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d
621, 624 (D.C. Cir. 1997)).
ARGUMENT
I.

PLAINTIFFS LACK STANDING TO BRING THIS ACTION CHALLENGING
THE CONSTITUTIONALITY OF SECTION 230 OF THE COMMUNICAITONS
DECENCY ACT.
Plaintiffs fail to establish standing to bring their First Amendment claim, and thus this

case should be dismissed for lack of subject matter jurisdiction. “The judicial power of the
United States” is limited by Article III of the Constitution “to the resolution of ‘cases’ and
‘controversies,’” Valley Forge Christian Coll. v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 471 (1982), and the demonstration of a plaintiff’s standing to sue “is an
essential and unchanging part of the case-or-controversy requirement,” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Article III standing, moreover, is “built on separation-ofpowers principles” and thus “serves to prevent the judicial process from being used to usurp the

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powers of the political branches.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013).
Consistent with this purpose, the standing inquiry must be “especially rigorous” when reaching
the merits of a claim would force a court to decide the constitutionality of actions taken by a
coordinate Branch of the Federal Government. Id. at 1147.
The “irreducible constitutional minimum of standing” contains three elements. First, the
plaintiff must have suffered an “injury in fact” – an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection between the injury and the conduct complained of.
Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision. See Lujan, 504 U.S. at 560-61. Here, assuming for purposes of this motion
only that Plaintiffs have alleged a cognizable injury-in-fact, they still fail to establish Article III
standing because their alleged injury is not traceable to the Attorney General, nor could their
alleged injury be redressed by declaring Section 230 to be unconstitutional and enjoining its
enforcement.1

1

With respect to injury-in-fact, Plaintiffs allege that they have been injured because private
social media companies are censoring their speech on the basis of content and viewpoint. See
Compl. ¶¶ 78-127. It is not at all clear whether Plaintiffs have a legally-protected interest in how
a private social media company moderates third-party content pursuant to its private terms of
service. The First Amendment of the United States Constitution applies only to governmental
conduct and not to private entities, and thus the First Amendment poses no requirements on a
social media company. See e.g., Hudgens v. N.L.R.B., 424 U.S. 507, 513 (1976). Nor is it clear
how California law can require a private social media company to publish Plaintiffs’ speech, see
Compl. ¶¶ 46-61, or how such a state-law requirement would be consistent with the First
Amendment, which arguably protects a social media company’s editorial control or judgment
from government regulation that would require publication of a certain message. See, e.g.,
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Hurley v. Irish-American Gay,
Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995). Nonetheless, the Court need not
resolve these issues here because Plaintiffs cannot establish the other elements of Article III
standing—namely, causation and redressability. See, e.g., Lyng v. Northwest Indian Cemetery
Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of
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A.

Plaintiffs’ Alleged Injury Is Not Fairly Traceable to Section 230.

Plaintiffs lack standing because they cannot show that their alleged injury—a private
social media company’s decision to remove content pursuant to its private terms of service—is
fairly traceable to the Attorney General of the United States. The causation prong of the
standing inquiry asks whether “it is substantially probable that the challenged acts of the
defendant, not some absent third party, will cause the particularized injury of the plaintiff.” Fla.
Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (internal citations omitted). As the
Supreme Court has recognized, an alleged injury has to be “fairly . . . trace[able] to the
challenged action of the defendant, and not ... th[e] result [of] the independent action of some
third party not before the court.” See Lujan, 504 U.S. at 560 (quoting Simon v. Eastern Ky.
Welfare Rights Organization, 426 U.S. 26, 41-42 (1976)); see also Lujan at 504 U.S. at 560-62
(injury caused by choices made by independent actors not before the courts is insufficient to
confer standing).
Here, Plaintiffs cannot establish that the Attorney General caused their alleged injury
because the Attorney General does not control the manner in which a private social media
company moderates content under its terms of service. Instead, Plaintiffs’ alleged injury was
caused or will be caused by “the independent action of some third party not before the court”—
namely Facebook, Twitter, or YouTube—and thus is insufficient to establish standing to sue the
Attorney General. Lujan, 504 U.S. at 560. Indeed, Plaintiffs’ Complaint focuses at length on the
specific decisions of private social media companies to remove particular content under their

judicial restraint requires that courts avoid reaching constitutional questions in advance of the
necessity of deciding them.”).
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private terms of service. See Compl. ¶¶ 78-127. But Plaintiffs do not plead any facts showing
that this private conduct from a third-party is fairly traceable to the Attorney General.
Nor can Plaintiffs establish causation by challenging Section 230 of the CDA itself.
Plaintiffs’ causal theory is that social media companies unfairly moderate the content of its users’
online activity and that they do so because of the Attorney General’s enforcement of Section
230. See Compl. ¶¶ 28, 66-74. But contrary to Plaintiffs’ allegations, the Attorney General does
not enforce Section 230, and thus Plaintiffs cannot establish that the Attorney General’s
(nonexistent) enforcement authority has caused or will cause their alleged injury. In fact, Section
230 is not enforced by any federal agency or federal official. Instead, this statutory provision
simply provides an immunity from civil lawsuits filed by private parties against other private
parties for harms allegedly caused by certain information posted on the internet. See 47 U.S.C.
§ 230(c). Thus, Section 230 is not a statute that the Attorney General enforces against private
parties and that can be challenged in an enforcement proceeding or pre-enforcement proceeding.
See, e.g., Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 593 (2011) (describing a
“preenforcement suit in federal court against those charged with administering the Arizona
law”); Nat’l Taxpayers Union v. U.S. Social Sec. Admin., 376 F.3d 239, 242 (4th Cir. 2004)
(considering preenforcement challenge to the constitutionality of the Social Security Act,
enforced by the Social Security Administration). Because the Attorney General does not enforce
Section 230, Plaintiffs cannot establish that their alleged injuries were caused or will be caused
by the Attorney General’s actions. See, e.g., Okpalobi v. Foster, 244 F.3d 405, 426 (5th Cir.
2001) (explaining that, under constitutional standing principles, “a plaintiff may not sue a state
official who is without any power to enforce the complained-of statute.”).

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Indeed, the lack of traceability is highlighted by the poor fit between traditional
preenforcement challenges against the Attorney General and this case. In traditional
preenforcement challenges, standing requirements are reduced based upon the fear that potential
plaintiffs are chilled by the mere threat of enforcement. See, e.g., New York Republican State
Comm. v. S.E.C., 799 F.3d 1126, 1135–36 (D.C. Cir. 2015). Here, however, Plaintiffs do not
allege that they are afraid to speak. To the contrary, they allege that they do so constantly. See
Compl. ¶¶ 78-127. And unlike traditional preenforcement challenges, Plaintiffs here retain the
ability to challenge the restrictions on their speech that they complain about here, i.e. by suing
the social media companies directly. If Section 230 is raised as a defense to that lawsuit,
Plaintiffs remain free to raise the First Amendment in opposition to that defense.
B.

This Court Cannot Redress Plaintiffs’ Alleged Injury.

Plaintiffs also fail to establish that their alleged censorship injury is likely to be redressed
by their requested declaratory and injunctive relief. To establish redressability, a plaintiff must
demonstrate that it is “likely, as opposed to merely speculative that the injury will be redressed
by a favorable decision.” Lujan, 504 U.S. at 561 (internal quotations and citation omitted).
Here, Plaintiffs request that the Court redress their alleged injury—the censorship of their speech
by private social media companies—by declaring Section 230 to be unconstitutional under the
First Amendment and enjoining the Attorney General from enforcing this provision. See Compl.
at 24, Prayer for Relief, ¶¶ A-B. But, as discussed, the Attorney General does not enforce
Section 230, and thus no declaration or injunction against her in this suit would redress
Plaintiffs’ alleged injury. To be sure, the requested declaratory and injunctive relief would not
restore speech on Plaintiffs’ accounts, nor would it prohibit a particular social-media company
from making a particular editorial choice regarding Plaintiffs’ accounts in the future. Nor does

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the Attorney General have the authority to prevent a private entity from invoking Section 230 as
a defense in a private civil suit. In short, because neither the Court nor the Attorney General has
the authority to redress Plaintiffs’ claim that private non-parties are unfairly moderating content
on their services, Plaintiffs lack standing and this case should be dismissed. See Okpalobi, 244
F.3d 405, 426 (5th Cir. 2001) (explaining that plaintiff could not establish redressability because
state attorney general did not enforce the challenged statute and could not prevent a private entity
from invoking statute in a private lawsuit); 1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108,
114–15 (3d Cir. 1993) (finding no case or controversy as to state attorney general based on
“general duty to enforce the laws” when not “specifically charged with the duty of enforcing the
challenged statute”); Ass’n of Inv. Brokers v. SEC, 676 F.2d 857, 861–62 (D.C. Cir. 1982)
(holding that association of investment brokers lacked standing to sue the SEC because use of
the challenged form was required by self-regulatory organization, not the SEC).
II.

PLAINTIFFS FAIL TO IDENTIFY ANY STATE ACTION THAT COULD
IMPLICATE THE FIRST AMENDMENT.
It is axiomatic that the First Amendment applies only to the state and federal government

and not to private parties. See, e.g., Hudgens v. N.L.R.B., 424 U.S. 507, 513 (1976) (“It is, of
course, a commonplace that the constitutional guarantee of free speech is a guarantee only
against abridgment by government, federal or state.”) (citing Columbia Broad. Sys., Inc. v.
Democratic Nat’l Comm., 412 U.S. 94, 114 (1973)); see also Denver Area Educ. Telecomms.
Consortium, Inc. v. F.C.C., 518 U.S. 727, 737 (1996) (“We recognize that the First Amendment,
the terms of which apply to governmental action, ordinarily does not itself throw into
constitutional doubt the decisions of private citizens to permit, or to restrict, speech . . . .”).
Accordingly, a basic principle of constitutional law holds that the First Amendment applies only

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to individuals or entities engaged in “state action.” See, e.g., Brentwood Academy v. Tennessee
Secondary Sch. Athletic Assoc., 531 U.S. 288, 295 (2001).
To demonstrate the requisite state action, Plaintiffs must allege facts showing a
“sufficiently close nexus between the [Government] and the challenged action of the [] entity so
that the action of the latter ‘may be fairly treated as that of the [Government] itself.”’ Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345,
350-51 (1974)); see also Village of Bensenville v. F.A.A., 457 F.3d 52, 64-65 (D.C. Cir. 2006).
In this respect, the “mere fact that a business is subject to [governmental] regulation does not by
itself convert its action into that of the [Government].” Am. Manuf. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 52 (1999) (quoting Jackson, 419 U.S. at 350). Rather, First Amendment scrutiny
applies to private parties “only when it can be said that the [Government] is responsible for the
specific conduct of which the Plaintiff complains.” Blum, 457 U.S. at 1004 (emphasis in
original). As the Supreme Court has made clear, government responsibility for a private
decision, requires more than “[m]ere approval of or acquiescence in the initiatives of a private
party.” Id. To the contrary, the Government can be held responsible for a private decision “only
when it has exercised coercive power or has provided such significant encouragement, either
overt or covert, that the choice must in law be deemed to be that of the [Government].” Id.
Here, Plaintiffs complain that social media companies—namely, Facebook, YouTube,
and Twitter—are moderating content in a manner that is discriminatory and constitutes
censorship. Compl. ¶¶ 78-127. But clearly the Attorney General does not administer Plaintiffs’
social media accounts or control how a social media company implements its terms of service.
Nor has the Attorney General encouraged a private social media company to remove content
from Plaintiffs’ social media accounts. Plaintiffs, therefore, have failed to plead that the

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government has “exercised coercive power” or “provided such significant encouragement” such
that the alleged censorship by private social media companies can “be deemed to be that of the
State.” Am. Manuf., 526 U.S. at 52 (citing Blum, 457 U.S. at 1004-05).
Nor can Plaintiffs establish state action by characterizing their claim as a facial challenge
to Section 230 itself. See Compl. ¶ 2 (alleging that Section 230 “permits Facebook, Twitter,
YouTube and others to engage in government-sanctioned discrimination and the suppression of
free speech.”); see also id. ¶ 67, 68, 74. As the Supreme Court has explained, “state action
requires both an alleged constitutional deprivation ‘caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed by the State or by a person for
whom the State is responsible,’ and that the party charged with the deprivation must be a person
who may fairly be said to be a state actor.’” Am. Mfrs., 526 U.S. at 50 (citing Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982)); see also Flagg Bros. v. Brooks, 436 U.S. 149,
165–66 (1978); Kolinske v. Lubbers, 712 F.2d 471, 477 (D.C. Cir. 1983) (explaining that state
action requires a nexus between the private party’s conduct and that taken by the government
entity “such that the conduct should be attributed to the state.”).
Plaintiffs meet neither prong of this test. First, the alleged constitutional deprivation
here—the allegedly discriminatory manner in which third-party social media companies are
moderating their services—was not caused by the exercise of any right created by Section 230.
Plaintiffs have specifically not sued any social media company in this action, and thus no
company has been alleged to have exercised any of its Section 230 rights. Second, Plaintiffs
cannot show that a private social media company’s moderation of its private services in
accordance with private terms of service is conduct that is fairly attributable to the state. Here,
the entities responsible for the conduct at issue here—Facebook, YouTube, and Twitter—are

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private companies running private social media platforms. They are in no sense arms of the
state. Nor does Section 230 magically transform a private interactive-computer-service provider
into a state actor. Section 230 at most provides a defense against civil liability for purely private
action—a private interactive-computer-service provider’s decision to remove the content posted
by private third-parties pursuant to private terms of service. Accordingly, Section 230 falls far
short of the requisite government involvement to support a finding of state action.
Plaintiffs also err to the extent they rely on Denver Area Educational
Telecommunications v. FCC, 518 U.S. 727 (1996) to support their state-action theory here. See
Compl. ¶ 75 (citing language from Denver Area for proposition that Section 230 constitutes state
action). In Denver Area, the Supreme Court addressed “First Amendment challenges to three
statutory provisions that seek to regulate the broadcasting of ‘patently offensive’ sex-related
material on cable television.” Id. at 732. These provisions placed various restrictions on
“special channels” known as “leased access channels” and “public, educational, or governmental
channels” (commonly known as PEG channels) that “carry programs provided by those to whom
the law gives special cable system access rights.” Id. at 734. For a period of time, federal law
“prohibited cable system operators from exercising any editorial control over the content of any
program broadcast over either leased or public access channels.” Id. (citation omitted).
Concerned about the rise of sexually explicit material on these channels, Congress later passed
legislation that “permit[ed] cable operators either to allow or to forbid the transmission of
‘patently offensive’ sex-related materials over both leased and public access channels, and
require[ed] those operators, at a minimum, to segregate and to block transmission of that same
material on leased channels.” Id. at 736. As pertinent here, a plurality of the Supreme Court
assumed that these statutory provisions permitting cable operators to prohibit or limit certain

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programs based on content could constitute state action implicating the First Amendment,
although no majority opinion was reached on the state action issue. Id.
Denver Area does not support a finding of state action here. The assumption of state
action in that case “must be seen in its proper context.” Roberts v. AT&T Mobility LLC, No. 15CV-03418-EMC, 2016 WL 1660049, at *7 (N.D. Cal. Apr. 27, 2016) (distinguishing Denver
Area). Specifically, the Court was addressing “regulatory legislation particular to cable
operators who are often given unique monopolistic power over a single cable system linking
broadcasters with the community, and who are ‘unusually involved’ with the government via,
e.g., given rights of way and access to governmental facilities.” Id. (citing Denver Area, 518
U.S. at 739). By contrast, this case involves a social media company’s ability to moderate
speech under its private terms of service, an area that does not implicate the same degree of
government regulatory involvement. In addition, subsequent to Denver Area, the Supreme Court
has continued to adhere to the general proposition that “[p]rivate use of state-sanctioned private
remedies or procedures does not rise to the level of state action.” Am. Mfrs., 526 U.S. at 53
(citing Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 485 (1988)). Thus,
given its unique factual context and the Supreme Court’s subsequent pronouncements, “Denver
Area did not establish a categorical rule that a statute which permits private parties to restrict the
speech or other rights of private citizens constitutes as a general matter state action.” Roberts,
2016 WL 1660049, at *8. To the contrary, the decision by a social media company to remove
third-party content from its services is not a decision by a state actor that could trigger an
analysis under the First Amendment. Therefore, Plaintiffs’ First Amendment claim should be
dismissed.

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CONCLUSION
For all the reasons stated above, this case should be dismissed pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6).
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
JOHN R. TYLER
Assistant Branch Director, Federal Programs Branch
Matthew A. Josephson
MATTHEW A. JOSEPHSON
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW, Room 7304
Washington, DC 20530
Tel: (202) 514-9237
Email: Matthew.A.Josephson@usdoj.gov
Counsel for Federal Defendant Loretta Lynch

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