Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 1 of 239 1 BROWNE GEORGE ROSS LLP Peter Obstler (State Bar No. 171623) 2 pobstler@bgrfirm.com 44 Montgomery Street, Suite 1280 3 San Francisco, California 94104 Telephone: (415) 391-7100 4 Facsimile: (310 275-5697 5 Eric M. George (State Bar No. 166403) egeorge@bgrfirm.com 6 Debi A. Ramos (State Bar No. 135373) dramos@bgrfirm.com 7 Keith R. Lorenze (State Bar No. 326894) klorenze@bgrfirm.com 8 2121 Avenue of the Stars, Suite 2800 Los Angeles, California 90067 9 Telephone: (310) 274-7100 Facsimile: (310) 275-5697 10 Attorneys for Plaintiffs Kimberly Carleste Newman, Lisa 11 Cabrera, Catherine Jones and Denotra Nicole Lewis 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION 14 15 Kimberly Carleste Newman, Lisa Cabrera, Catherine Jones, and Denotra Nicole Lewis, 16 Plaintiffs, 17 vs. 18 Google LLC, YouTube LLC, Alphabet Inc, 19 and DOES 1 through 100, inclusive, Case No. CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Trial Date: None Set 20 Defendants. 21 22 23 24 25 26 27 28 1605366.1 Case No. CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 2 of 239 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION AND PREFATORY STATEMENT OF THE CASE .............................. 1 II. PARTIES ............................................................................................................................... 14 III. JURISDICTION AND VENUE............................................................................................ 17 IV. FACTS COMMON TO ALL CLAIMS ................................................................................ 17 4 5 6 7 A. The Governing Agreements ...................................................................................... 18 8 1. The General Terms Of Use And Contract-Based Promises .......................... 20 2. The License Provisions ................................................................................. 23 9 10 B. Defendants Are Engaged In Anti-Competitive, Unlawful, Deceptive And Unfair Business Practices .......................................................................................... 25 C. Defendants’ Tool Kit For Unlawful Conduct ........................................................... 27 11 12 13 1. Artificial Intelligence Algorithm Restrictions............................................... 27 14 2. Excluding Channels And Videos From Full Revenue Generation ............... 30 15 3. Misapplying “Restricted Mode”.................................................................... 31 16 4. Shadow Banning Channels And Videos ....................................................... 36 17 5. Delegating Content Review And Regulation To Racists And White Supremacists.................................................................................................. 38 6. Interfering With Livestream Broadcasts ....................................................... 39 7. Excluding Videos From “Trending” And “Up Next” Video Recommendations ......................................................................................... 40 21 8. Freezing Channel Analytics Re Subscribers And Viewers ........................... 41 22 9. Promoting And Profiting From Hate Speech ................................................ 42 23 10. Interfering With, Obstructing, Ignoring And Delaying Appeals .................. 43 18 19 20 24 D. Defendants Have Violated And Continue To Violate The Rights Of Plaintiffs And The Class ........................................................................................................... 45 25 1. Kimberly Carleste Newman .......................................................................... 45 2. Lisa Cabrera .................................................................................................. 50 3. Catherine Jones ............................................................................................. 56 26 27 28 1605366.1 Case No. -iCLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 3 of 239 1 TABLE OF CONTENTS (Continued) 2 Page 3 4. Denotra Nicole Lewis .................................................................................... 56 4 V. CLASS ALLEGATIONS ...................................................................................................... 60 VI. INDIVIDUAL CAUSES OF ACTION................................................................................. 64 5 6 7 FIRST CAUSE OF ACTION REQUEST FOR A DECLARATORY JUDGMENT THAT SECTION 230(c) IMMUNITY IS INAPPLICABLE TO DISCRIMINATION CLAIMS (On Behalf Of Each Plaintiff Individually And The Class) .................................. 64 8 A. Procedural Background Facts .................................................................................... 64 B. 10 Justiciable Legal Controversies Currently Exist Regarding The Construction And Constitutionality Of 47 U.S.C. § 230(c). ........................................................... 71 11 1. An Actual Controversy Exist As To Whether The Provisions Of Section 230(c) Immunize Defendants From Race, Personal Identity, or Viewpoint Discrimination In Filtering And Blocking On line Content And Access ...................................................................................... 72 2. An Actual Controversy Exists As To Whether Section 230(c) Immunizes Defendants For Conduct That Violates ...................................... 72 3. The Provisions And/or Application Of Any Part Of Section 230(c) To Claims Arising Out Of Race, Identity, Or Viewpoint Discrimination Is Unconstitutional ............................................................... 72 4. The Executive Order Precludes The Government From Arguing Or Enforcing Section 230(c) To Claims Based On Intentional Identity Or Viewpoint Discrimination. ............................................................................ 73 9 12 13 14 15 16 17 18 19 C. Plaintiffs Served Rule 5.1 Notice On The U.S. Attorney General ............................ 74 20 SECOND CAUSE OF ACTION FOR BREACH OF CONTRACT (On Behalf Of Each Plaintiff Individually And The Class) ................................................................................... 75 21 THIRD CAUSE OF ACTION FOR BREACH OF THE IMPLIED COVENANT OF 22 GOOD FAITH AND FAIR DEALING (On Behalf Of Each Plaintiff Individually And The Class) ...................................................................................................................... 77 23 FOURTH CAUSE OF ACTION FOR PROMISSORY ESTOPPEL (On Behalf Of Each 24 Plaintiff Individually And The Class) ................................................................................... 79 25 FIFTH CAUSE OF ACTION FOR DISCRIMINATION IN CONTRACT IN VIOLATION OF 42 U.S.C. § 1981 (On Behalf Of Each Plaintiff Individually And The Class) ............... 80 26 SIXTH CAUSE OF ACTION FOR UNLAWFUL DISCRIMINATION IN VIOLATION 27 OF THE UNRUH CIVIL RIGHTS ACT (On Behalf Of Each Plaintiff Individually And The Class) ...................................................................................................................... 83 28 1605366.1 Case No. -iiCLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 4 of 239 1 TABLE OF CONTENTS (Continued) 2 Page 3 4 SEVENTH CAUSE OF ACTION FOR FALSE ADVERTISING IN VIOLATION OF THE LANHAM ACT, U.S.C. § 1125, et seq. (On Behalf Of Each Plaintiff Individually And The Class) ................................................................................................. 85 5 6 EIGHTH CAUSE OF ACTION FOR UNLAWFUL, DECEPTIVE, AND UNFAIR BUSINESS PRACTICES CAL. BUS. & PROFS. CODE §17200, et seq. (On Behalf Of Each Plaintiff Individually And The Class) ......................................................... 87 7 8 NINTH CAUSE OF ACTION FOR VIOLATION OF CALIFORNIA CONSTITUTION ARTICLE I, SECTION 2 (On Behalf Of Each Plaintiff Individually And The Class) ........ 88 9 TENTH CAUSE OF ACTION FOR FREEDOM OF SPEECH UNDER THE FIRST AMENDMENT, UNITED STATES CONSTITUTION, AMENDMENT 1 (On 10 Behalf Of Each Plaintiff Individually And The Class) ......................................................... 93 11 A. Procedural Background ............................................................................................. 93 12 B. Permissive Endorsement Allegations Of State Action .............................................. 96 13 C. State Action Allegations Under The Public Function Test ....................................... 98 14 D. Defendants’ Conduct Violates The First Amendment .............................................. 99 15 VII. PRAYER FOR RELIEF ...................................................................................................... 101 16 VIII. JURY TRIAL DEMAND.................................................................................................... 103 17 18 19 20 21 22 23 24 25 26 27 28 1605366.1 Case No. -iiiCLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 5 of 239 1 Plaintiffs, Kimberly Carleste Newman, Lisa Cabrera, Catherine Jones, and Denotra Nicole 2 Lewis, bring this lawsuit (the “Lawsuit”), individually and on behalf of a putative class of similarly 3 situated persons, against Defendant YouTube LLC (“YouTube”), and its parent companies, 4 Google LLC (“Google”) and Alphabet Inc. (collectively referred to as “Google/YouTube” or 5 “Defendants,” unless otherwise specified). 6 Substantial overlaps exists between the claims, allegations, putative classes and issues in 7 this Lawsuit with case pending before this Court captioned Divino Group, LLC et al., v. Google, 8 LLC, et al, Case No. 5:19-cv-004749 – VKD (N.D. Cal.) (“Divino”). After reviewing Civil L.R. 39 12 governing related cases, it is unclear whether this Lawsuit technically meets the specific criteria 10 and elements required for relation under Local Rule 3-12. Specifically, this Lawsuit does not 11 involve all of “the same parties,” or the identical “property” owned by the same parties in Divino. It 12 is also unclear whether the “transactions” are the same within the meaning of Local Rule 3-12 or 13 whether the “events” consist of the identical unlawful conduct of restricting of access to the 14 YouTube platform based on the profiling and discriminatory use of a person’s personal identity or 15 viewpoint in Divino that may be different from the racial identity profiling and discrimination 16 against Plaintiffs and the members of the Class in this Lawsuit. Consequently, while Plaintiffs do 17 not believe that all of the requirements for designating the Lawsuit “related” come within the 18 definition of Local Rule 3-12, Plaintiffs are not opposed to having this Lawsuit related to, or 19 otherwise coordinated with, the pending proceedings in Divino. 20 I. INTRODUCTION AND PREFATORY STATEMENT OF THE CASE 21 1. Plaintiffs are African American content creators, viewers, and consumers who bring 22 this Lawsuit to redress overt, intentional, and systematic racial discrimination perpetrated by 23 Google/YouTube to deny them and other members of a protected racial classification under the law 24 equal access to YouTube, the most “ubiquitous” provider of public video content and internet 25 access services in the history of the world. 26 2. Defendants are members of the largest business enterprise, private or public, in the 27 world. Through this enterprise, Defendants exercise complete, absolute, and “unfettered” control 28 over access to approximately 95% of all video content that is available to the public. This includes 1605366.1 Case No. -1CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 6 of 239 1 absolute control over any and all posting, viewing, engagement, advertising, personal data, and 2 revenue monetization rights of the 2.3 billion consumers who access and use YouTube. 3 3. Defendants are also the largest creators, promoters, and sponsors of video content on 4 YouTube. Thus, in addition to hosting and regulating video content and services on YouTube, 5 Defendants compete directly with Plaintiffs and their content for the same access, audiences, 6 viewership, advertising, marketing, and revenue based services on YouTube. 7 4. In exercising these unprecedented powers, Defendants contract with Plaintiffs and 8 all persons similarly situated to provide equal access to YouTube and all of its related services, 9 subject only to viewpoint neutral content rules and criteria that apply equally to all. 10 5. In reality, however, Defendants’ access restrictions and denials imposed on 11 Plaintiffs and all persons similarly situated are not the result of an identity and viewpoint blind 12 review and application of the rules to actual video material. Instead, Defendants have an 13 irreconcilable commercial conflict of interest: on the one hand, Defendants act as content creators 14 or sponsors of video content, competing directly with Plaintiffs and all persons similarly situated 15 for the same services, audiences, advertisers, and revenue streams on the YouTube platform; on the 16 other hand, Defendants act as absolute regulators and monetizers of all YouTube content and 17 services, and exercise unfettered authority to determine viewer and service access by enforcing 18 their Community Guidelines and Terms of Service (the “TOS”) against their competitors, based on 19 the identity or viewpoint of Plaintiffs and all other persons similarly situated. 20 6. Under the pretext of honest content and service regulation, Defendants rig the game, 21 by using their power to restrict and block Plaintiffs and other similarly situated competitors, based 22 on racial identity or viewpoint discrimination for profit. Defendants also abuse their power by not 23 subjecting their own videos to the same Community Guidelines and TOS that they apply to all 24 other YouTube users. As a result, Defendants are not subject to filtering or blocking restrictions, 25 even where Defendants’ videos contain material that violates their own rules. 26 7. Among the many abuses that Defendants have perpetrated against Plaintiffs and all 27 other persons similarly situated, are Defendants’ practices of allowing racist hate speech to go 28 unregulated on Plaintiffs’ channels, resulting in lost subscribers and viewership, and the 1605366.1 Case No. -2CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 7 of 239 1 surreptitious “bugging” of Plaintiffs’ videos by the insertion, attachment, appending, or embedding 2 of metadata and other signals that allow Defendants’ filtering tools to target Plaintiffs and all other 3 persons similarly situated, based on race, identity and/or the viewpoint of the creator, her channel 4 subscribers, and viewers. 5 8. This intentional and systematic racial discrimination violates Defendants’ legal 6 obligations under the contract(s), and is unlawful under federal and state antidiscrimination laws, 7 false advertising, unlawful business practices, and free speech laws. It is unlawful whether it is 8 done for profit, or out of ideological animus. 9 9. Interfering with the contractual and legal rights of Plaintiffs and all persons similarly 10 situated to access and use YouTube based in any way, part, or degree on their race, identity or 11 viewpoint, violates YouTube’s TOS and is unlawful under the strict prohibitions against racial 12 discrimination in contract and business practices enshrined in federal and California law. That is 13 racism, overt intentional and systematic. 14 10. Defendants knowingly, intentionally, and systematically employ artificial 15 intelligence (“A.I.”), algorithms, computer and machine based filtering and review tools to “target” 16 Plaintiffs and all other persons similarly situated, by using information about their racial, identity 17 and viewpoint to restrict access and drive them off YouTube. 18 11. Under the pretext of finding that videos violate some vague, ambiguous, and non- 19 specific video content rule, Defendants use computer driven racial, identity and viewpoint profiling 20 and filtering tools to restrict, censor, and denigrate Plaintiffs and all persons similarly situated on 21 YouTube, wholly or in part, because they are African American, black, members of a protected 22 racial classification under the law, or identify as such, or with a related viewpoint. 23 12. Since at least 2017, Defendants’ filtering and review tools and procedures are 24 embedded with computer code or other machine based “triggers” that profile the personal racial 25 identity or viewpoint of the user. Defendants admit that their filtering tools use information about 26 the identity of the YouTube creators, subscribers and viewers to “target” members of protected 27 racial classifications under the law and impose access restrictions on them that are not racially, 28 identity or viewpoint neutral; nor are they based on, or supported by actual material in the videos; 1605366.1 Case No. -3CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 8 of 239 1 and Defendants treat such videos as if they violate YouTube’s content based Community 2 Guidelines and TOS, by denying full YouTube platform access and related services. 3 13. On March 19, 2017, Defendants publicly admitted that they improperly censored 4 videos using their “Restricted Mode” filtering that were posted or produced by members of the 5 LGBTQ+ Community, based upon the identity and orientation of the speaker, rather than upon the 6 content of the video. Defendants also promised to remove all restricted filtering on videos posted 7 or produced by LGBTQ+ members and groups, and changed their filtering algorithm, and manual 8 review policies and practices to address the risk that videos posted by LGBTQ+ vloggers were 9 being censored because of the identity or viewpoint of the speaker. 10 14. On April 27, 2017, Johanna Wright, Vice President of Product Management for 11 Google/YouTube, took to the airwaves and news media to promise the global “YouTube 12 Community,” that Defendants would ensure that “Restricted Mode” would not “filter out content 13 belonging to individuals or groups based on certain attributes like gender, gender identity, political 14 viewpoints, race, religion or sexual orientation.” While Ms. Wright conceded that “Restricted 15 Mode will never be perfect, [Google/YouTube] hope to build on [their] progress so far to continue 16 making [their] systems more accurate and the overall “Restricted Mode” experience better over 17 time.” 18 15. On September 14, 2017, Defendants invited independent YouTubers and content 19 creators to address concerns that the platform’s video review algorithm and practices discriminated 20 against certain minority groups, including LGBTQ+, African American, and other users of color or 21 vulnerable minorities. At the meeting, Defendants admitted that their content filtering and review 22 tools were “targeting” African American, LGBTQ+, and other “minority” users. They further 23 admitted that this resulted in the application of erroneous or unwarranted blocking restrictions and 24 access denials for users that were based, at least in part, on the user’s racial or sexual identity or 25 viewpoints, rather than a content violation of YouTube’s rules or Terms of Service. 26 16. Defendants also represented that they were working on a “fix,” and that neither user 27 identity nor viewpoint has any role in the application of YouTube’s content based access rules and 28 1605366.1 Case No. -4CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 9 of 239 1 restrictions or should otherwise interfere with a user’s right to access the myriad of services that 2 Defendants offer to users.1 3 17. But things have only gotten worse with respect to Defendants’ racial profiling and 4 “targeting” of African American and members of other protected racial classifications under the 5 law who use YouTube. 6 18. In January 2018, Defendants got caught red handed. During a recorded call between 7 a user and a supervisor, who Defendants now identify as the “Floor Manager” for their customer 8 service advertising services center in Bangalore, India, Defendants represented to the user that its 9 “holiday special” video was not eligible for advertising services because the filtering tools had 10 identified the user as being involved with the “gay thing.” Under what the manager expressly 11 stated was “company policy,” the filtering algorithm determined that the video contained 12 “shocking” or “sexually explicit” content, not because of any actual material in the video, but 13 because the “company” considered video content created by a “gay” user or content that discussed 14 the “gay thing” as ineligible for advertising or promotion. Defendants considered content created 15 or viewed by “gay” persons to be “shocking” or “sexually explicit.” 16 19. This pattern and practice or “policy” of denying users equal access to YouTube 17 based on their racial, sexual, or other individual identities or viewpoints occurred to the same user 18 after the January 2018 call with Defendants, on at least five other occasions. The pattern and 19 practice has become so pervasive that many prominent and quality content creators have lost more 20 than 90% of their viewers, advertisers, revenue, and other access rights in the last 24 months solely 21 22 1 One of the persons who attended the meeting is Stephanie Frosch, a prominent and popular 23 LGBTQ+ content creator on YouTube. Ms. Frosch is a named plaintiff in another class action lawsuit pending in this District, captioned Divino Group, et al. v. Google LLC, et al., Case No. 24 5:19-cv-004749-VKD (N.D. Cal.). In that case, Ms. Frosch testified under oath the she and the other attendees were required to execute multiple non-disclosure agreements (the “NDAs”) before 25 and at the event. The NDAs prevented her, and any anyone else who attended the meeting, from disclosing any information about the meeting. On March 23, 2020, after Plaintiffs threatened to 26 move to set aside the NDAs as void and unenforceable, Defendants agreed to release her from her obligations under the NDAs. See Declaration of Stephanie Frosch Submitted in Support of 27 Plaintiffs’ Application to File a Sur Reply to Address New Authority. A true and correct copy of the Declaration of Stephanie Frosch (Dkt. #40) is attached as Exhibit A. 28 1605366.1 Case No. -5CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 10 of 239 1 because they are identified as African American, LGBTQ+ or other protected racial classifications 2 under the law. 3 20. The Plaintiffs in this Lawsuit also face the same sort of overt, intentional, and 4 systemic identity and viewpoint discrimination, with one important difference: Defendants do not 5 discriminate against Plaintiffs only because of sex based identity or viewpoint profiling, but 6 primarily because they identify as African American, or with other protected racial classifications 7 under the law. 8 21. This is unlawful race discrimination. Unlike any other form of prohibited 9 discrimination, it has been outlawed in the United States since 1865, when Congress enacted 10 section 1981 and other civil rights laws intended to wipe out, prohibit, and make any and all racial 11 discrimination in contracts and business practices unlawful. 12 22. Defendants know and admit that they discriminate, including admissions that since 13 at least 2017, they use content based filtering and access review tools, systems, and practices that 14 “target” African Americans and other members of protected racial classifications under the law. 15 23. Nonetheless, Defendants have failed to “fix” the discriminatory defects in their 16 content and access review systems and stop the “targeting” as promised. Defendants continue to 17 knowingly, intentionally, and systematically block, demonetize, and deny Plaintiffs and other 18 persons similarly situated, their contractual and other legal rights to access YouTube based on the 19 color of their skin or other protected racial traits, rather than the material in their videos. 20 24. Defendants also abuse their dual roles as content reviewers and content creators on 21 YouTube. Specifically, under the pretext of unfettered “discretion” to serve as sole “censors” of 22 content on the YouTube platform, Defendants use racial profiling to restrict the reach and access of 23 Plaintiffs and other third party users who compete directly with Defendants and their sponsored 24 video content for click per minute (“CPM”), advertising, and other revenue stream and services on 25 YouTube. 26 25. Instead of “fixing” the digital racism that pervades the filtering, restricting, and 27 blocking of user content and access on YouTube, Defendants have decided to double down and 28 continue their racist and identity based practices because they are profitable. By utilizing their 1605366.1 Case No. -6CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 11 of 239 1 unilateral control over 95% of the world’s public video content, Defendants unlawfully 2 misappropriate viewers, CPM, advertising, and other revenues that belong to, or would otherwise 3 be available to, Plaintiffs and other third party users, but for the discriminatory restrictions that 4 unlawfully restrict and block Plaintiffs’ content and access to YouTube services. 5 26. This is race discrimination. It is knowing and intentional. Defendants knowingly 6 used and continue to use discriminatory content filtering review tools and procedures that “target” 7 Plaintiffs and other persons similarly situated, for access restrictions because they are African 8 American, persons of color, or are identified by Defendants as having an ethnicity or other personal 9 immutable traits and/or viewpoints, not because the actual video content or material violates 10 YouTube’s purportedly neutral content rules. 11 27. Defendants’ racist profiling and practices are also systematic. By using A.I., 12 algorithms and other computerized machine based filtering tools (in lieu of having humans perform 13 the “ubiquitous” task of reviewing and deciding whether the material or content in billions of hours 14 of videos uploaded daily to YouTube) to sanction Plaintiffs, Defendants engage in a knowing and 15 intentional practice that unlawfully discriminates against users based on race or other protected 16 racial classifications under the law, or viewpoints. 17 28. Defendants’ conduct is knowing, intentional, and systematic, regardless of whether 18 Defendants are motivated by ideological animus towards black and members of other protected 19 racial classifications under the law, or they merely use racial and identity profiling to restrict access 20 for profit, and/or to save costs, resources, labor, and time necessary to lawfully review actual video 21 content and determine, in a viewpoint neutral manner, whether a rule violation has occurred that 22 triggers a content based access restriction or sanction on YouTube. In short, Defendants’ use of 23 racism for profit is every bit unlawful as ideological racism, since, in either case, it discriminates 24 against Plaintiffs because they are African Americans or members of other protected racial 25 classifications under the law. 26 29. Defendants do not disagree. Susan Wojcicki, YouTube’s CEO, has taken to the 27 airwaves over the last three years to repeatedly and unequivocally deny that Defendants 28 discriminate against anyone when it comes to content or access restrictions to YouTube, while 1605366.1 Case No. -7CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 12 of 239 1 insisting that all decisions, wrong or right, are the product of good faith, viewpoint neutral, and 2 identity blind content reviews and decisions. 3 30. On or about June 14, 2020, Wojcicki publicly announced that in conjunction with 4 Alphabet, Defendant YouTube was starting a $100 million fund "dedicated to amplifying and 5 developing the voices of Black creators and artists and their stories." In a blog post Thursday, 6 Wojcicki said, "At YouTube, we believe Black lives matter and we all need to do more to 7 dismantle systemic racism.” See https://www.marketwatch.com/story/youtube-is-starting-a-1008 million-fund-for-black-creators-artists-2020-06-11. 9 31. Given Defendants’ stated concerns regarding systemic racism, Defendants have 10 some serious explaining to do when it comes to the Plaintiffs and the other persons similarly 11 situated using YouTube. Plaintiffs would prefer that Defendants spend their money to stop the 12 racist practices that pervade the YouTube platform, including: 13 a. Abusing Artificial Intelligence Programs, Algorithms and Other 14 Filtering Tools to digitally profile, redline, and target Plaintiffs and all persons similarly situated 15 on the YouTube platform, for access restrictions, blocking, demonetization, suspensions and 16 removals from the platform based on the racial identity or viewpoint of the video creator, her 17 subscribers, and/or the viewers of her videos by inserting or appending to individual videos race, 18 identity or viewpoint based metadata, thereby forcing Plaintiffs to self-censor and refrain from 19 posting videos regarding issues and current events which are important to the African American 20 community, such as requiring Plaintiffs to avoid or hide references to abbreviations like “BLM,” 21 “KKK;” terms such as “Black,” “White,” “Racism,” “Boogaloo,” “White Supremacy,” “Racial 22 Profiling,” “Police Shootings,” “Police Brutality,” “Black Lives Matter;” names of individuals such 23 as those killed by law enforcement, “Bill Cosby,” “Louis Farrakhan;” names of organizations such 24 as “Ku Klux Klan,” “Nazi,” “Neo-Nazi,” “Aryan Brotherhood,” and/or other euphemisms that are 25 known and particular to the African American community, despite the fact that the videos involved 26 do not contain any hate speech, profanity, or nudity, and at most, contain very short references or 27 quotations from recognized news sources, which are properly attributed. 28 1605366.1 Case No. -8CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 13 of 239 1 b. Preventing Full Revenue Generation for videos of Plaintiffs and all 2 persons similarly situated who are not afforded full monetization, Channel Membership and 3 Livestream donations for videos that are otherwise eligible under Defendants’ rules, but have been 4 demonetized or limited in monetization because of Defendants’ addition of metadata and use of 5 algorithms and filtering tools that profile creators, subscribers and viewers based on their race or 6 viewpoint, rather than on the actual content of the video. 7 c. Misapplying “Restricted Mode” to the videos of Plaintiffs and all persons 8 similarly situated, which address or discuss issues of importance to their communities, merely 9 because the videos have titles or tags which include “abbreviations like “BLM,” “KKK;” terms 10 such as “Black,” “White,” “Racism,” “Boogaloo,” “White Supremacy,” “Racial Profiling,” “Police 11 Shootings,” “Police Brutality,” “Black Lives Matter;” names of individuals such as those killed by 12 law enforcement, “Bill Cosby,” “Louis Farrakhan;” names of organizations such as “Ku Klux 13 Klan,” “Nazi,” “Neo-Nazi,” “Aryan Brotherhood,” and/or other euphemisms that are known and 14 particular to the African American community, despite the fact that the videos do not contain 15 materials which discuss drug use or the abuse or drinking of alcohol; overly detailed conversations 16 about or depictions of sexual activity; graphic depictions of violence, violent acts; natural disasters 17 or tragedies or violence in the news; specific details about events related to terrorism, war, crime 18 and political conflicts that resulted in death or serious injury, even if no graphic imagery is shown; 19 inappropriate language, including profanity, or content that is gratuitously incendiary, 20 inflammatory, or demeaning toward an individual or group. 21 d. Shadow Banning Entire Channels And Individual Videos of Plaintiffs 22 and all persons similarly situated on the YouTube platform based on the race, identity or viewpoint 23 of the video creator, her subscribers, and/or the viewers of her videos, so that the channel and/or 24 individual videos do not appear in searches using the YouTube search application, and viewers 25 cannot locate new videos which discuss issues and current events that are important to the 26 communities of African Americans and members of other protected racial classifications under the 27 law. 28 1605366.1 Case No. -9CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 14 of 239 1 e. Deputizing Other YouTube Users To Flag Channels And Videos on the 2 YouTube platform in order to restrict, block, and/or censor the videos of Plaintiffs and all persons 3 similarly situated, and then, in acting on false or unconfirmed complaints of purported rule 4 violations, Defendants remove, restrict, and/or demonetize, individual videos and/or suspend the 5 channels without first verifying that the flagged video contains material that violates a specific 6 Community Guideline or Term of Service. 7 f. Interfering With Livestream Broadcasts of Plaintiffs and all persons 8 similarly situated by inserting new voice content and/or visual images into the video stream, 9 unrelated to the Livestream topic; throttling, interrupting or cutting off the Livestream broadcast 10 while in progress; deleting positive viewer comments; and promoting, sponsoring, allowing and/or 11 inserting offensive, misogynistic, racist, or obscene comments or engagement in direct violation of 12 YouTube’s Community Guidelines based on the race of the creators, channel subscribers and/or 13 viewers, or their viewpoints. 14 g. Excluding From “Trending” And “Up Next” YouTube Video 15 Recommendations the videos of Plaintiffs and all persons similarly situated which, even though 16 they comply with Defendants’ Community Guidelines and TOS, are excluded from Defendants’ 17 promotional applications based on the race, identities, and viewpoints of the creators, channel 18 subscribers and/or viewers. Defendants’ practices muffle the voices of Plaintiffs and all persons 19 similarly situated on the YouTube platform and reduce the racial diversity of the opinions and 20 information posted on the platform. 21 h. Freezing Analytic Numbers Of Subscribers And Viewers for the channels 22 of Plaintiffs and all persons similarly situated. In suspending the accurate analytic information for 23 the channels of Plaintiffs and all persons similarly situated, Defendants prevent them from 24 qualifying for YouTube Partnership benefits such as monetization, mobile Livestreaming, Channel 25 Membership, and SuperChat; as well as deprive them of the opportunity to grow their channels and 26 generate revenue. 27 i. Promoting And Profiting From Hate Speech by allowing racist and 28 misogynist hate speech videos that target Plaintiffs and all persons similarly situated on the 1605366.1 Case No. -10CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 15 of 239 1 YouTube platform in direct violation of Defendants’ Community Guidelines and TOS, and 2 affording such videos monetization, despite the fact that such videos have been flagged by 3 Plaintiffs and/or their subscribers as violating Defendants’ standards, and despite having received 4 repeated complaints regarding those videos. 5 j. Interfering With, Obstructing, Delaying And Ignoring Appeals to 6 prevent Plaintiffs and all persons similarly situated from obtaining a timely manual review of video 7 content and reversal of Defendants’ erroneous decisions to suspend their channels and to remove, 8 restrict monetization, or restrict access to videos deprives them of their rights to communicate with 9 their intended audience and/or to earn revenue, unless and until, Defendants lift the suspension, 10 removal, and/or restriction, if ever. 11 32. Regardless of what Defendants’ internal motivations are, Defendants are not above 12 the law nor are they too big to “self-regulate” by complying with the law, including the long 13 established prohibition on race discrimination in contract. 14 33. Until such time as Defendants make good on their promises, representations, and 15 obligations to “fix” this racism and compensate Plaintiffs and other similarly situated victims of 16 Defendants’ unlawful and repugnant discriminatory conduct, Defendants will continue to engage in 17 intentional race discrimination that violates their agreements with Plaintiffs, as well as established 18 federal and state laws that govern the relationship between the parties. 19 34. Plaintiffs can no longer wait for Defendants to implement the “fix” they promised 20 years ago. Nor should they have to. Whether Defendants’ “motive” for refusing to do so is based 21 on profit, ideology, or “no reason at all,” the knowing use of a person’s, race, skin color or some 22 other immutable personal trait or viewpoint to filter and review access to YouTube, is digital racial 23 profiling, redlining, and discrimination. It is illegal. 24 35. It is time for Ms. Wojcicki, and the other senior officers of Google YouTube, to put 25 up or shut up. If Defendants truly believe that they are engaged in good faith, viewpoint neutral 26 content regulation on YouTube, then Defendants should produce the computer code and permit an 27 expert review of that code to examine the “triggers” for review and restriction of content. 28 Defendants can then, under oath in deposition and other sworn testimony, and through other 1605366.1 Case No. -11CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 16 of 239 1 discovery, explain to Plaintiffs, the Court, and the public why their prior admissions and other 2 evidence of “targeting” African Americans and members of other protected racial classifications 3 under the law, are not true. 4 36. Until that time, Defendants’ unsupported denials, or recent portrayal of the 5 discriminatory conduct as “mistakes” or the result of a “he said, she said” misunderstanding 6 between its employees and officers, is not a lawful reason to deny Plaintiffs their day in court. 7 37. Despite a whole lot of “telling,” Defendants have made no attempt to “show” that 8 their actions do not discriminate based on the race, identity or viewpoint of Plaintiffs or the 9 hundreds of millions of other users who fall victim to discrimination by Defendants. 10 38. Defendants’ refusal to do so is mystifying, if not damning. The computer code and 11 information about how Defendants’ A.I., algorithms, and other machine based filtering operate, 12 developed and have changed since Defendants purchased YouTube in 2007. Such evidence will 13 resolve the extent to which Defendants use filtering tools to profile and discriminate against 14 YouTube users based on their race, identity or viewpoints. 15 39. For whatever reason, Defendants do not deny they are engaged in intentional and 16 systematic racial discrimination on YouTube, but only that they can be held to account under the 17 law. Despite informal and formal legal requests for the computer code and information about how 18 content filtering works on YouTube, Defendants claim that section 230(c) of the Communication 19 Decency Act (47 U.S.C., § 230(c)) (“Section 230(c)”) is both a sword and a shield to hide the 20 computer code and other evidence that will show, once and for all, whether Ms. Wojcicki’s denials 21 of unlawful conduct are in fact true, or are just another in a line of false, misleading, and deceptive 22 statements to the YouTube Community. 23 40. Defendants’ use of Section 230(c) to immunize them from having to account for 24 intentional discrimination against African Americans and other members of protected racial 25 classifications under the law, based on the users’ race, sex, or other identity or viewpoint, is itself 26 unlawful. 27 41. Under the First Amendment, the United States Supreme Court in Denver Area 28 Educational Telecommuns. Consortium, Inc. v. Federal Communications Comm’n, 518 U.S. 727, 1605366.1 Case No. -12CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 17 of 239 1 766-67 (1996), confirmed the obvious: a congressional law that permits a private party to regulate 2 speech is unlawful and unconstitutional unless the law (i) is applied in a viewpoint neutral manner, 3 (ii) is narrowly tailored so as not to create a risk of an erroneous private veto over speech, and (iii) 4 does not interfere with or otherwise alter or obstruct the parties’ existing legal relationship, 5 obligations, and rights or the enforcement of those rights and obligations in a court of law. 6 42. Defendants’ assertion that Section 230(c) permits them to use a person’s race, 7 identity or viewpoint to block access to YouTube is unconstitutional because, at least as applied to 8 this Lawsuit, the law is neither (i) viewpoint neutral, (ii) narrowly tailored to prevent against an 9 erroneous veto of speech by Defendants under its rules, and/or (iii) interferes with and eviscerates 10 Defendants’ preexisting legal obligations to Plaintiffs under state and federal law, including 11 antidiscrimination, false advertising, consumer protection, and the express and implied promises set 12 forth in Defendants’ operative contract(s) with Plaintiffs. 13 43. Plaintiffs file this lawsuit, therefore, to hold Defendants to account for their 14 intentional and systemic racist conduct and practices, by asserting claims for legal and equitable 15 relief: 16 (i.) Breach of contract, implied breach of contract covenant, and promissory estoppel; 17 (ii.) Racial discrimination in contract in violation of federal law under 42 U.S.C. § 1981; 18 (iii.) Racial discrimination in violation of the Unruh Civil Rights Act, Cal. Civ. Code § 51, 19 et seq.; 20 (iv.) Unlawful, deceptive, and unfair discriminatory business practices in violation of the 21 Unfair Competition Laws under California Business and Professions Code § 17200, et seq.; 22 (v.) False advertising and commercial disparagement in violation of the Lanham Act, 15 23 U.S.C. § 1125, et seq.; 24 (vi) Discrimination in violation of the Liberty of Speech Clause under Article I, Section 2 of 25 the California Constitution; and 26 (vii) Discrimination in violation of First Amendment of the U.S. Constitution arising from 27 Defendants’ use of Section 230(c) to immunize them from liability for discrimination. 28 1605366.1 Case No. -13CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 18 of 239 1 44. In addition, Plaintiffs also seek a declaratory judgment that: either (i) the plain 2 language Section 230(c) does not apply to racial profiling and discriminatory access restrictions 3 that are based on a person’s race, identity, or viewpoints, rather than the “on line material” that 4 actually appears on YouTube; or (ii) if Section 230(c) is construed to permit on line racial, identity 5 or viewpoint based discrimination restrictions against YouTube users, Section 230(c) is 6 unconstitutional because it violates the First Amendment’s limits on permissive private party 7 speech regulation. 8 9 II. 10 PARTIES 45. Plaintiff Kimberly Carleste Newman, also known as Kimberly Santana (“Plaintiff 11 Newman”), is an African American woman residing in the State of California who is the creator 12 and owner of “The True Royal Family,” and “True Royal,” two YouTube channels dedicated to 13 developing and posting videos that discuss and present information regarding issues and current 14 events which are important to the African American community. Plaintiff Newman created “The 15 True Royal Family” channel in 2015, followed by “True Royal,” in 2016. Since its creation, 16 Plaintiff Newman’s “The True Royal Family” channel has posted more than 1654 separate videos, 17 only 954 of which are still posted because Defendants removed 700 or more individual videos and 18 have refused to restore them; the “True Royal” channel has posted 209 videos. “The True Royal 19 Family” channel has garnered a total of 4.4 million views since creation, and the “True Royal” 20 channel has garnered 583,000 views since creation. Plaintiff Newman is a YouTube “partner,” and 21 has generated total revenue of $2,672.68 for videos posted on “The True Royal Family,” and 22 $123.96 for videos posted on “True Royal.” 23 46. Plaintiff Lisa Cabrera (“Plaintiff Cabrera”) is an African American woman residing 24 in the State of New Jersey who is the creator and owner of “Lisa Cabrera” and “Lisa C,” two 25 YouTube channels dedicated to developing and posting videos that discuss and present information 26 regarding issues and current events which are important to the African American community. 27 Plaintiff Cabrera created the “Lisa Cabrera” channel in 2015. Since creation, Plaintiff Cabrera’s 28 “Lisa Cabrera” channel has posted 4,423 videos (68 of which Defendants archived for unknown 1605366.1 Case No. -14CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 19 of 239 1 reasons and can no longer be viewed by anyone), which have garnered 20 million views. Plaintiff 2 Cabrera is a YouTube partner who has generated a total of $25,500 for videos posted on the “Lisa 3 Cabrera” channel. 4 47. Plaintiff Catherine Jones (“Plaintiff Jones”) is an African American woman residing 5 in the State of Vermont who is the creator and owner of “Cooking with Carmen Caboom,” a 6 YouTube cooking channel for African Americans, and “Carmen Caboom,” and “Carmen Caboom 7 Reloaded,” two YouTube channels dedicated to developing and posting both parodies and serious 8 videos that discuss and present information about issues and current events which are important to 9 the African American community. Plaintiff Jones created the “Carmen Caboom” channel in 2010, 10 a backup “Carmen Caboom” channel in 2014, the “Cooking with Carmen Caboom” channel in 11 2015 and the “Carmen Caboom Reloaded,” channel in 2018. Defendants improperly removed the 12 original “Carmen Caboom” channel for purported nudity when no video posted to the channel 13 included any nudity. Plaintiff Jones is a YouTube partner. Since creation, Plaintiff Jones’ 2014 14 “Carmen Caboom” channel has posted numerous videos, several of which Defendants improperly 15 removed as hate speech, the remaining videos have garnered approximately 500 -1,200 views per 16 video overall which have generated approximately $500 per year. 17 48. Plaintiff Denotra Nicole Lewis (“Plaintiff Lewis”) is an African American woman 18 residing in the State of Texas who is the creator and owner of “Nicole’s View,” a YouTube channel 19 dedicated to developing and posting videos that discuss and present information regarding issues 20 and current events which are important to the African American community. Plaintiff Lewis 21 created the “Nicole’s View” channel in 2006. She became a YouTube partner sometime between 22 2016 and 2017. Plaintiff Lewis has uploaded 748 videos to the “Nicole’s View” channel, 17 of 23 which Defendants wrongly removed or archived for unknown reasons, the remainder of which have 24 generated 10.6 million views and has generated approximately $6,000-7,000 in revenue per year, 25 approximately $25,000 over the life of the channel. 26 49. Defendant YouTube, LLC is a for-profit limited liability corporation, wholly owned 27 by Google LLC, and organized under the laws of the State of Delaware. YouTube’s principal place 28 of business is Mountain View, California and it regularly conducts business throughout California, 1605366.1 Case No. -15CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 20 of 239 1 including Santa Clara County, California. Defendant YouTube, LLC operates the largest and most 2 popular internet video viewer site, platform, and service in California, the United States, and the 3 world, and holds itself out as one of the most important and largest public forums for the 4 expression of ideas and exchange of speech available to the public. Plaintiffs are informed and 5 believe that at all relevant times Defendant YouTube, LLC acts as an agent of Defendant Google 6 LLC and uses, relies on, and participates with Defendant Google LLC in restricting speech on the 7 YouTube site, platform, or service. 8 50. Defendant Google LLC is a for-profit, limited liability company organized under the 9 laws of the State of Delaware, with its principal place of business in Mountain View, California; it 10 regularly conducts business throughout California, including Santa Clara County. Plaintiffs are 11 informed and believe, and thereon allege that, at all relevant times, Defendant Google LLC has 12 acted as an agent of Defendant YouTube, LLC, and controls or participates in censoring and 13 restricting speech on the YouTube service or platform. 14 51. Defendant Alphabet Inc. is a for-profit American multinational corporation 15 conglomerate incorporated under the laws of the State of Delaware, with its principal place of 16 business in Mountain View, California. According to Defendants, Alphabet Inc. was created as art 17 of a corporate restructuring of Defendants Google, YouTube, and other subsidiary or affiliate 18 entities on October 2, 2015. At that time, Alphabet Inc. became the parent company of Google and 19 other former Google subsidiary or affiliated entities, including Defendant YouTube. Defendants 20 also claim that the creation and establishment of Alphabet Inc. was prompted by the desire to make 21 Defendants’ core businesses "cleaner and more accountable" while allowing greater autonomy to 22 group companies that operate in businesses other than internet services. 23 52. The true names and capacities, whether individual, corporate, associate, or 24 otherwise, of Defendants Does 1 through 100, inclusive, are presently unknown to Plaintiffs, and 25 for that reason these Defendants are sued by such fictitious names. Plaintiffs are informed and 26 believe and thereon allege that each of the Doe Defendants is in some way legally responsible for 27 the violations of law, injuries, and harm caused, as alleged herein. If, and when appropriate, 28 1605366.1 Case No. -16CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 21 of 239 1 Plaintiffs will seek leave of the Court to amend this Complaint when the true names and capacities 2 of said defendants are known. 3 III. JURISDICTION AND VENUE 4 53. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 5 1331, 1337(a), and 2201. The Complaint includes Federal questions, and the amount in 6 controversy arising from the claims asserted on behalf of Plaintiffs and all other persons similarly 7 situated exceeds $5 million, exclusive of interest and costs. Plaintiffs and all other persons 8 similarly situated also challenge the construction and constitutionality of 47 U.S.C. § 230(c)(1) and 9 (2), and seek a declaratory judgment that this statute does not immunize Defendants for overt 10 intentional and systematic racial discrimination on the YouTube platform. 11 54. Venue is proper in the Northern District of California (San Jose Division) under 28 12 U.S.C. § 1391. Defendants reside and/or transact business in the County of Santa Clara, and are 13 within the jurisdiction of this Court for purposes of service of process. Defendants’ TOS require 14 that Plaintiffs and all other persons similarly situated file this Lawsuit in a court of competent 15 jurisdiction located within Santa Clara County. 16 IV. FACTS COMMON TO ALL CLAIMS 17 55. On June 2, 2020, this Court held a hearing on Defendants’ Motion to Dismiss in 18 Divino. At the hearing, the Court asked Defendants if they were claiming immunity from liability 19 for denying access to YouTube based on the user’s race. In response, Defendants’ counsel 20 conceded that a case involving intentional race discrimination by an ISP may not be covered by 21 Section 230(c): 22 I THINK THERE COULD BE SOME STARK CASES WHERE A COURT MIGHT FIND 23 UNDER A PARTICULAR SET OF CIRCUMSTANCES THAT SOME ALLEGED 24 DISCRIMINATION DIDN'T TAKE THE FORM OF A PUBLISHER OF ACTUALLY 25 TARGETING PUBLISHER CONDUCT, AND, THEREFORE, DIDN'T COME WITHIN 26 (C)(1). 27 * * * * 28 1605366.1 Case No. -17CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 22 of 239 1 I CAN IMAGINE SOME COURTS TAKING THE POSITION THAT A PROPERLY 2 PLEADED CLAIM OF THE SORT THAT YOU DESCRIBE AS SORT OF FACIAL 3 RACE DISCRIMINATION CLAIM MAY NOT BE GOOD FAITH UNDER (C)(2), I 4 CAN IMAGINE A COURT TAKING THAT POSITION. 5 Attached as Exhibit E is a true and correct copy of the June 2, 2020-Transcript of Oral Argument 6 before the Hon. Virginia DeMarchi; Exhibit E at 10:45 15-22. 7 56. This Lawsuit is that “stark case.” Defendants are engaged in intentional race 8 discrimination against Plaintiffs and other persons similarly situated, that violates Defendants’ 9 contractual promises not to discriminate, and also violates long established laws that prohibit 10 racism for profit. 11 57. The central allegation in this Lawsuit is that Defendants engage in identity and 12 viewpoint-based filtering and service access restrictions that utilize and base access restrictions on 13 Plaintiffs’ race, identity, and/or viewpoints. 14 58. Defendants profile, use, and consider Plaintiffs’ race, personal identity, or 15 viewpoint, in order to interfere with, restrict, or block video viewing, promotion, advertising, 16 engagement, and/or monetization services because Plaintiffs are African American. This is 17 unlawful and cannot be immunized by Congress. 18 59. Defendants’ profiling, review, use, and consideration of Plaintiffs’ race, ethnicity, 19 religion, political affiliations or personal identity or viewpoints is prohibited not only under 20 Defendants’ TOS and other related agreements with Plaintiffs, but it also violates laws dating back 21 to the Civil War which prohibit racial discrimination in contract and business relationships. 22 A. The Governing Agreements 23 60. Each time that Plaintiffs (or any other member of the public) access the YouTube 24 user interface, Plaintiffs and Defendants execute binding contract(s) that govern the parties 25 respective rights and obligations on YouTube, including the TOS. 26 61. The provisions in the TOS and other agreements are part of a uniform consumer 27 contract that every one of YouTube’s 2.3 billion users must execute and agree to upon accessing 28 the website. 1605366.1 Case No. -18CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 23 of 239 1 62. The TOS and other agreement(s) are governed by California law. 2 63. Under the agreement(s), Defendants designate YouTube as a “passive website,” that 3 is open to the public, provided that any person who “uses or visits” the YouTube website or “any 4 YouTube products software, data feeds, and services provided” consents and legally agrees to 5 YouTube’s “TOS,” “Google’s Privacy Policy,” and “Community Guidelines,” as “incorporated by 6 reference” and are further clarified or modified by Defendants “without notice” (collectively the 7 “Agreement”). 8 64. The contract(s) allow Defendants not only collect, store, analyze, and organize the 9 personal, financial, political, and other data for each of the YouTube Platform users, but 10 Defendants also use and sell that data to third parties on the open market. 11 65. In 2018, Defendants’ authorized representatives testified under oath to Congress and 12 confirmed that YouTube is “a neutral public forum” in which Defendants “enforce [their] policies 13 in a politically neutral way.” 14 66. Among other statements, Defendants affirmatively represent to the public and 15 YouTube users that all access rules and restrictions apply equally to all without consideration of the 16 race, personal identity, or viewpoint of the user and that YouTube is a “forum” where the public 17 can engage in “freedom of expression,” to communicate and interact with other users subject to 18 viewpoint neutral content based filtering and regulations that apply equally to all. 19 67. As of the filing date of this lawsuit, YouTube’s CEO and other senior officers of 20 Defendants continue to represent and insist to the public that YouTube’s regulation and restriction 21 of access to its services is undertaken solely by “viewpoint neutral” application of specific content 22 based rules limited to actual video content and does not use, consider, or take into account the 23 user’s race, sexual identity, political or religious association, or any other personal identity trait or 24 viewpoint of the user. 25 68. Based on Plaintiffs’ experience, and the experience of other YouTube users who are 26 members of other protected racial classifications under the law, that is a lie. And Defendants have 27 admitted as much on multiple occasions dating back to at least 2017. 28 1605366.1 Case No. -19CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 24 of 239 1 1. 2 69. The General Terms Of Use And Contract-Based Promises As with many large public consumer businesses, Defendants contract with users 3 through the use of an online, consumer form service contract(s). 4 70. Like many other consumer service contracts, the TOS and other related 5 agreement(s) that govern the consumer’s respective obligations and rights is not a beacon of clarity. 6 Specifically, Defendants utilize a myriad of confusing, ambiguous, vague, overbroad, overlapping, 7 interconnected, and inconsistent provisions to govern the parties’ respective rights and obligations, 8 including integrating or incorporating service and access provisions that are not specific to the 9 YouTube platform, but apply to any service or product that Defendant Google provides or markets 10 to the public. 11 71. In or about December 2019, Defendant Google merged its general terms of service 12 for its products and services with that of YouTube’s TOS for all purposes. Consequently, access 13 actions, restrictions, or blocking that occur on YouTube may also be used by Defendants to review, 14 restrict, block, or deny any service that either entity provides, including Android devices and use, 15 personal email, publisher advertising, confidential health record data storage and access, all 16 applications sold in Google’s Android App store, election monitoring services, public health and 17 law enforcement services search, and any and all other communication or information services that 18 Google, YouTube, or their affiliates provide to consumers or the public. 19 72. The result is a complex and indecipherable web of service provisions that are not 20 readily available to users and require each user to locate and navigate as part of a convoluted, 21 confusing and complicated disclosure process, which may not be functionally accessible to the 22 user. 23 73. The user is also required to figure out what agreements and provisions govern what 24 conduct and restrictions, and which agreements are in place at the time to govern the specific 25 conduct. 26 74. This is virtually impossible, because as is the case here, Defendants routinely 27 change or amend the provisions of these agreements and do so unilaterally, without adequate notice 28 to users. 1605366.1 Case No. -20CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 25 of 239 1 75. Because each Plaintiff executed a new TOS agreement every time they access 2 YouTube on their internet browsers, only Defendants know what versions of the agreements and 3 policies apply to the conduct at issue during the period of time governing the claims in this 4 Lawsuit. 5 76. The TOS and other agreement(s) exist as electronic, on line documents. The 6 agreements are executed electronically from drop down menus. Consequently, users often do not 7 have access to or understand the TOS or agreement(s), let alone which version of the TOS and 8 other agreement(s) may govern a particular action or conduct that occurs on a particular date. 9 77. One fundamental provision of the TOS and agreement(s), however, has not changed. 10 In every TOS or agreement during the relative period of this Lawsuit, Defendants promise users 11 equal and full access to all YouTube services, subject only to viewpoint neutral content-based rules 12 that apply equally to all. 13 78. On January 17, 2018, Defendants testified to Congress under oath that access to all 14 services offered by Defendants in connection with YouTube are available to Plaintiffs, and all 15 users, subject only to viewpoint neutral content-based rules that apply equally to all users: 16 Senator Cruz: Thank you Mr. Chairman. Welcome to each of the witnesses. I’d like to 17 start by asking each of the company representatives a simple question, which is: do you 18 consider your companies to be neutral public fora? 19 **** 20 Senator Cruz: I’m just looking for a yes or no whether you consider yourself to be a 21 neutral public forum. 22 Senator Cruz: Ms. Downs? 23 Ms. Downs: Yes, our goal is to design products for everyone, subject to our policies and the 24 limitations they impose on the types of content that people may share on our products. 25 Senator Cruz: So, you’re saying you do consider YouTube to be a neutral public forum? 26 Ms. Downs: Correct. We enforce our policies in a politically neutral way. Certain things 27 are prohibited by our Community Guidelines, which are spelled out and provided publicly 28 to all of our users. 1605366.1 Case No. -21CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 26 of 239 1 **** 2 Ms. Downs: As I mentioned, we enforce our policies in a politically neutral way. In terms 3 of the specifics of Prager University, it’s a subject of ongoing litigation so I’m not free to 4 comment on the specifics of that case. 5 See https://www.c-span.org/video/?439849-1/facebook-twitter-youtube-officials-testify-combating6 extremism and https://www.c-span.org/video/?448566-1/house-judiciary-committee-examines7 social-media-filtering-practices at 02:34:28 – 02:35:29 of the full hearing recording (emphasis 8 added). 9 79. Before and after that date, up to the time of the filing of this lawsuit, YouTube’s 10 CEO Susan Wojcicki and other senior officers of Defendants have repeatedly reaffirmed and 11 maintained that all of access decisions are based on viewpoint neutral application of the content 12 based rules governing the service that apply equally to all. 13 80. Thus, whatever ambiguity exists in their agreements with Plaintiffs, Defendants 14 admit that all of the agreements and the application of the provisions in those agreements are 15 governed by a core and fundamental promise: access to the YouTube platform and all services is 16 open and available to any member of the public who uses YouTube, subject only to viewpoint 17 neutral content based rules that apply equally to all. 18 81. That promise governs all of a user’s content based rights and obligations associated 19 with YouTube and all services. It applies not only to Plaintiffs and to all public users, but also to 20 Defendants, who sponsor video content that competes directly with Plaintiffs and other public users 21 for CPMs, viewer reach and expansion, promotion and advertising, and monetization of revenue 22 generated by each video that is posted on the YouTube platform and/or is available through viewer 23 subscription services. 24 82. Defendants’ core, fundamental promise of ensuring equal access to YouTube, under 25 neutral content-based rules is illusory, false, and unenforceable. 26 83. Defendants exercise “unfettered discretion” when applying YouTube’s content- 27 based service rules and provisions and determining what access to give each user. Defendants 28 1605366.1 Case No. -22CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 27 of 239 1 admit that at least since 2016, the exercise of this “unfettered discretion” by Defendants is not 2 viewpoint or identity neutral. 3 84. Since at least 2017, Defendants have grudgingly admitted that they “target” and 4 deny access or services to Plaintiffs based, not on the video content posted by a Plaintiff, but “for 5 any reason, or no reason,” including the race, personal identity, or personal viewpoint, of YouTube 6 content creators, viewers, and users. 7 85. The practice of using its “discretion” to deny access to any Plaintiffs, or any user, 8 based on race, identity, or viewpoint, rather than video content, violates and breaches the express 9 and implied promises set forth in YouTube’s TOS and other service or access agreements, because 10 those agreements are governed in their entirety by California law, and expressly limit the exercise 11 of Defendants’ “discretion” to that “permitted” by law. 12 86. Thus, Defendants’ admissions that they are engaged in identity and viewpoint based 13 access denials and targeting, breach the express and implied promises that discretionary access 14 decision must be viewpoint neutral in application and comply with all federal and state laws 15 prohibiting discrimination in contract, including 42 U.S.C. § 1981, the Unruh Act, and §§17200, et 16 seq. of the California Business & Professions Code. 17 2. 18 87. The License Provisions The current (and/or prior versions) of YouTube’s TOS at issue in this discrimination 19 case require Plaintiffs to “grant” Defendants a renewable, “irrevocable” and “perpetual” license to 20 any and all video content or communication that occurs on YouTube. This includes, but is not 21 limited to, the property rights for all personal data and other revenue streams that Plaintiffs hold an 22 interest in or otherwise derive from the posting, viewing, advertising, or monetization of their 23 videos on YouTube. 24 88. Under the TOS, Plaintiffs “grant” Defendants a “worldwide, non-exclusive, royalty- 25 free, sublicensable and transferable license to use that Content . . . in connection with the Service 26 and YouTube’s . . . . business . . . .” 27 28 1605366.1 Case No. -23CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 28 of 239 1 89. The TOS also grant other YouTube “users” a “non-exclusive, royalty-free license to 2 access” content, “reproduce, distribute, prepare derivative works, display, and perform it . . . as 3 enabled by a feature of the Service.” 4 90. This license includes the right of Defendants and other users to post and monetize 5 Plaintiffs’ “[c]ontent or other material” that makes Plaintiffs (i) “solely responsible for” the content 6 and its “consequences,” including (ii) all intellectual property rights and restrictions on the video 7 content, and (iii) not posting content or seeking access to services in a manner that is “contrary to 8 the YouTube Community Guidelines.” 9 91. In applying these provisions, Defendants reserve “the right to decide whether 10 Content violates these Terms,” including, “but not limited to, pornography, obscenity, or excessive 11 length,” and, “in so doing, remove such Content and/or terminate a user’s account” if, “in its sole 12 discretion . . . submitting such material is determined to be “in violation of these Terms.” 13 92. Defendants’ acquisition of the licensing rights to 95% of the world’s public video 14 content along with the personal and financial information data that belongs to the 2.3 billion users 15 who post or view the content is not free or a gift to the largest and most powerful tech enterprise in 16 the history of the world. Rather, the license rights are obtained through for tangible and valuable 17 consideration: the right of the licensor or user to equal access to the YouTube platform and all of its 18 services, subject to and limited only by the viewpoint neutral application of YouTube’s content19 based rules. 20 93. Thus, under the TOS, Defendants’ license agreement binds and requires them to 21 apply and impose access restrictions for viewpoint neutral content based violations of a third 22 party’s intellectual property rights, Defendants’ Community Guidelines, and other content based 23 terms of YouTube’s service, and to do so in a manner “permitted” by the law. 24 94. Defendants’ past, present, and continuing violations of the TOS is a fundamental 25 and material breach of the trillion dollar licensing provisions by which Defendants obtained 26 perpetual” and “irrevocable” right to use, display, and monetize 95% of the public’s video content 27 that exists or has ever existed in the world, as well as the personal and proprietary data of the 2.3 28 billion people who use or access the site. 1605366.1 Case No. -24CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 29 of 239 1 B. Defendants Are Engaged In Anti-Competitive, Unlawful, Deceptive And Unfair Business Practices 95. Defendants shuffle between three conflicting and irreconcilable roles in connection 2 3 with YouTube: 4 a. When Defendants put on their “ISP” hat, Defendants host, review, curate, 5 and monetize the video content of third party users who license their content, and the personal data 6 property rights of these users, in return for providing equal access to YouTube content and services, 7 subject only to viewpoint neutral rules that apply equally to all. 8 b. When Defendants put on their “creator” hat, Defendants create videos and 9 partner with hand-picked creators to sponsor their content, and both operate and act as the largest 10 and most powerful of YouTube users to compete directly and aggressively with Plaintiffs and other 11 third party users for views, reach, engagements, CPM revenue, advertisers, and a host of other user 12 based revenue streams on YouTube. 13 c. When Defendants put on their “advertiser” hat, Defendants review, 14 categorize, and classify the video content of third party users for purposes of selling advertisements 15 on the YouTube platform in connection with individual videos and/or YouTube channels, based on 16 demographic information in the form of Defendants’ metadata that they generate for individual 17 videos which is gleaned from video titles and tags (posted by Plaintiffs when the individual videos 18 are posted to the platform), Plaintiffs’ channel profiles (which were input when the channels were 19 first created), the profiles of Plaintiffs’ subscribers (which individual subscribers input when they 20 first registered with Defendants) and the subscribers’ video viewing histories (which Defendants 21 gather, analyze and summarize in the form of metadata), as well as the profiles of other users who 22 view Plaintiffs’ videos (which were input when they first registered with Defendants) and the 23 viewers’ video viewing histories (which Defendants also gather, analyze and summarize in the 24 form of metadata). Using the enormous wealth of information Defendants have about the 25 Plaintiffs, their subscribers and the viewers of their videos, Defendants can identify, price and sell 26 advertising space on the YouTube platform in connection with individual videos posted, based on 27 the demographics of the channel subscribers and video viewers. In this way, Defendants can 28 1605366.1 Case No. -25CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 30 of 239 1 identify, market and sell advertising based on the race, identity and viewpoints of the YouTube 2 users and generate revenue for Defendants, their affiliated creators, and affluent white YouTube 3 creators, without ever reviewing any of the millions of individual videos posted on the YouTube 4 platform. In short, Defendants divvy up the video content on the platform by race, identity and 5 viewpoint in order to sell advertisements to third parties without regard to the actual content of 6 videos; moreover, Defendants fully monetize those creators whose subscribers and viewers fit the 7 “right demographic,” paying them collectively millions of dollars each month regardless of whether 8 their individual videos comply with Defendants’ own Community Guidelines and TOS. 9 96. Defendants’ multiple roles create platform wide conflicts of interest, in which 10 Defendants utilize their unfettered authority to curate third party content on YouTube as a pretext 11 to impose access and content restrictions on Plaintiffs and all other persons similarly situated, that 12 are not imposed on content posted or sponsored directly or derivatively by Defendants or other 13 parties with whom they contract with for sponsorship. 14 97. In the last four years, Defendants have invested in and expanded their business to 15 become the largest a production and media company in the world. See 16 https://www.feedough.com/youtube-business-model-how-does-youtube-make-money/. 17 98. Among other things, Defendants announced that “[t]he company has partnered with 18 its top content creators who wanted to charge a subscription rental or purchase fees for their content 19 and made their uploaded content as paid content which requires users to pay for a subscription or 20 purchase fees to access the content of the channel.” Furthermore, Defendants decided to partner 21 with “affiliates” whose “related product” advertisements are placed with some videos on YouTube. 22 These products link to the affiliate partners, which pay a commission to Defendants if their 23 products are purchased. 24 99. Defendants understand that the YouTube Platform has effectively surpassed its user 25 saturation point, and that monetizing and profiting from YouTube by merely hosting content on the 26 platform is no longer financially feasible to satisfy Defendants’ insatiable lust for revenue and 27 profits. 28 1605366.1 Case No. -26CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 31 of 239 1 100. Thus, in addition to hosting their own video channels on YouTube, Defendants have 2 entered into lucrative preferred provider production deals with other global media companies, 3 including PBS, MSNBC, HBO, Fox News, Breitbart, and other media and entertainment 4 conglomerates. 5 101. Defendants have also entered the digital TV market with the advent of YouTube 6 TV. Defendants use their control over third party user content, on and access to the YouTube 7 platform to induce consumers to purchase their TV and entertainment services by using the 8 YouTube hosting platform, user interface to that platform, and content curation powers to induce 9 consumers to use YouTube for all digital based TV or video content, including movies, music, 10 sports, and entertainment. 11 102. Defendants compete for that public audience or viewership unfairly and unlawfully, 12 in a manner which gives their “preferred content” a competitive advantage, by among other things, 13 using their filtering tools and criteria to restrict the access and reach of the smaller third-party users 14 it hosts on YouTube. Thus, under the pretext of making the site safe for their users, Defendants 15 arbitrarily, capriciously, and deceptively restrict access and audience reach to the videos of their 16 competitors on the platform, like Plaintiffs, while at the same time allowing their own content to 17 avoid those same restrictions and restraints -- even when that content violates their own guidelines. 18 In so doing, Defendants effectively clear space on the platform for content which they, or their 19 preferred users supply, to better reach the sites’ 2.3 billion users, by censoring the content of their 20 competitors. 21 C. Defendants’ Tool Kit For Unlawful Conduct 22 103. Defendants utilize a series of discriminatory, anticompetitive and unlawful 23 suppression practices and conduct to grow their profits, financial, interests, and unprecedented 24 consolidation and control over information, speech, advertising, expression, and internet 25 viewership. 26 1. 27 104. Artificial Intelligence Algorithm Restrictions The central mechanism used by Defendants to achieve these objectives are A.I. 28 based algorithms (“A.I.”), and computer driven filtering tools that profile, regulate, restrict, flag, 1605366.1 Case No. -27CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 32 of 239 1 and block creator content and access on YouTube. Defendants surreptitiously collect information 2 regarding Plaintiffs and all other persons similarly situated, their subscribers, and the viewers of 3 their videos, and generate metadata that is embedded, appended or associated with individual 4 videos to facilitate Defendants’ unlawful discriminatory and anticompetitive filtering and review 5 tools to restrict or block the video content and access to the YouTube platform by Plaintiffs and all 6 other persons similarly situated, both as YouTube creators and as viewers. 7 105. Defendants claim that these algorithms are viewpoint and identity neutral, and that 8 they ensure that the “same standards apply equally to all” when it comes to the content regulation 9 of speech on YouTube. Defendants claim that their employees conduct “manual reviews” to 10 supplement the electronic filtering and regulation of video content. 11 106. But the evidence, including statements by Defendants’ employees familiar with both 12 electronic and manual filtering and regulation of speech that takes place on the YouTube Platform, 13 suggests that Defendants’ representations of neutral viewpoint and identity-based content 14 regulation are also false. The A.I. and algorithmic filtering tools are embedded with code that 15 regulates content based on purely subjective, viewpoint, topic, and identity animus, and other 16 unlawful criteria. Even before October 2016, Defendants’ engineers began making changes to the 17 code and operations of the algorithms and filtering tools in order to ensure that Defendants could 18 filter videos and regulate access to video content based upon overt discrimination based on race, 19 sexual or gender orientation, ethnic, political or religious animus, as well as for financial and/or 20 anticompetitive purposes. 21 107. Similarly, Defendants’ viewpoint bias, animus, and discrimination towards the 22 user’s identity or viewpoint is institutionally and culturally rampant in Defendants’ work place and 23 employment practices. Among other things, Defendants operate and administer “Restricted Mode” 24 through employees, including engineers and content reviewers, and independent contractors. These 25 people work in what has been widely reported and acknowledged as a dysfunctional work 26 environment and often work outside of the United States in countries and cultural settings where 27 discrimination against Plaintiffs and all other persons similarly situated is not only condoned but is 28 deeply embedded in social mores. 1605366.1 Case No. -28CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 33 of 239 1 108. Internal emails by and between Defendants’ employees show that many employees 2 are routinely subjected to harassment, threats, blacklisting, discipline, and hazing based on their 3 race, or political or religious viewpoints. The dysfunction and viewpoint bias emanate from, and 4 are enforced at, the highest ranks of Defendants’ upper management, and drive the actions of 5 employee supervisors, co-workers, third-party affiliates, and advertisers. 6 109. Consequently, even when manual employee reviews of video content are used to 7 check and audit restrictions on videos generated from the digital algorithms or from flagging by 8 other YouTube users, Defendants apply “Restricted Mode” and other discretionary and vague 9 content based criteria, to restrict access to Plaintiffs’ videos using vague and undefined terms such 10 as “mature” or “sensitive” for certain audiences, solely because the video discusses a topic 11 involving abbreviations like “BLM,” “KKK;” terms such as “Black,” “White,” “Racism,” 12 “Boogaloo,” “White Supremacy,” “Racial Profiling,” “Police Shootings,” “Police Brutality,” 13 “Black Lives Matter;” names of individuals such as those killed by law enforcement, “Bill Cosby,” 14 “Louis Farrakhan;” names of organizations such as “Ku Klux Klan,” “Nazi,” “Neo-Nazi,” “Aryan 15 Brotherhood,” and/or other euphemisms that are known and particular to the African American 16 Community, or the video’s title or tag words includes these trigger words. 17 110. Defendants’ conduct creates censorship, restraint of speech, and discrimination 18 based on the race, identity, and/or viewpoint of Plaintiffs and all other persons similarly situated, 19 not based upon video content which might violate a narrow, neutral, objective, and specifically 20 verifiable criteria that furthers a compelling and legitimate public interest. 21 111. Defendants’ conduct also forces Plaintiffs and all other persons similarly situated to 22 self-censor and to avoid not only using abbreviations like “BLM,” “KKK;” terms such as “Black,” 23 “White,” “Racism,” “Boogaloo,” “White Supremacy,” “Racial Profiling,” “Police Shootings,” 24 “Police Brutality,” “Black Lives Matter;” names of individuals such as those killed by law 25 enforcement, “Bill Cosby,” “Louis Farrakhan;” names of organizations such as “Ku Klux Klan,” 26 “Nazi,” “Neo-Nazi,” “Aryan Brotherhood,” and/or other euphemisms that are known and particular 27 to the African American Community in video titles and tag words, but to avoid mentioning these in 28 the video content, in order to avoid having Defendants remove videos or issue a “strike” against the 1605366.1 Case No. -29CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 34 of 239 1 channel, purportedly for posting “hate speech” or violating one or more of Defendants’ unidentified 2 Community Guidelines and TOS. 3 112. Defendants’ A.I. tools and practices effectively silence the voices of Plaintiffs and 4 all other persons similarly situated concerning some of the most important issues and current events 5 affecting their communities. 6 113. Because Defendants’ A.I. tools and practices single out the videos of Plaintiffs and 7 all other persons similarly situated for adverse treatment (e.g., removal, restricted access if any, 8 and/or limited or no monetization), the Plaintiffs and class members cannot generate sufficient 9 viewers or subscribers to grow their channels so as to qualify for all of the Defendants’ special 10 programs and perks, such as YouTube partnership, Channel Membership, mobile Livestreaming, or 11 SuperChat applications, resulting in the creation of a ghetto tier of YouTube creators based on their 12 race, identity and/or viewpoints, who are doomed to create videos for very limited audiences for 13 little to no money. 14 2. 15 114. Excluding Channels And Videos From Full Revenue Generation In addition to creating and using metadata to racially profile Plaintiffs and all other 16 persons similarly situated, as well as their subscribers and viewers, for purposes of restricting 17 access to the YouTube platform, Defendants use the same or similar metadata to limit the revenue 18 which can be generated from individual videos. Defendants use A.I., algorithms, and filtering tools 19 and practices in conjunction with the metadata they create, to prevent Plaintiffs and other persons 20 similarly situated from earning money from videos merely because the metadata reflects the video 21 title and/or tags include abbreviations like “BLM,” “KKK;” terms such as “Black,” “White,” 22 “Racism,” “Boogaloo,” “White Supremacy,” “Racial Profiling,” “Police Shootings,” “Police 23 Brutality,” “Black Lives Matter;” names of individuals such as those killed by law enforcement, 24 “Bill Cosby,” “Louis Farrakhan;” names of organizations such as “Ku Klux Klan,” “Nazi,” “Neo25 Nazi,” “Aryan Brotherhood,” and/or other euphemisms that are known and particular to the African 26 American Community. Defendants also use the same or similar metadata to limit or prevent 27 revenue generation from videos posted by Plaintiffs or other persons similarly situated, simply 28 because the videos were created by Plaintiffs or members of other races, by other similar 1605366.1 Case No. -30CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 35 of 239 1 communities, or by those sharing the same viewpoints, or because the videos were posted on 2 channels that are popular with members of Plaintiffs’ communities, or are widely viewed by 3 viewers who share Plaintiffs’ race, identity, and/or viewpoints. 4 115. Because Defendants use metadata based on video titles and tags to flag videos for 5 limited monetization or demonetization, Plaintiffs and other persons similarly situated self-censor 6 and either avoid posting videos regarding issues and current events that are important to their 7 community (e.g., videos regarding the deaths of unarmed African Americans at the hands of law 8 enforcement, healthcare providers’ refusals to test or treat African Americans for the Covid-19 9 virus, the disparate infection, death and unemployment rates experienced by African Americans as 10 a result of the Covid-19 pandemic), or they misspell key words like “Black,” “White,” “Race,” 11 “Racist,” and “Racism,” or they rely on euphemisms known only to the African American 12 community. 13 116. Defendants’ conduct and practices cause Plaintiffs and other persons similarly 14 situated to lose revenue which their fully compliant videos would otherwise have generated, as well 15 to lose subscribers and viewers, and the opportunity to grow their channels and to qualify for full 16 access to all of the perks that Defendants offer others. 17 3. 18 117. Misapplying “Restricted Mode” Defendants also use the same or similar metadata to restrict access to the full 19 YouTube platform and related benefits by misapplying “Restricted Mode” to the videos of 20 Plaintiffs and all persons similarly situated. “Restricted Mode” is one of Defendants’ primary tools 21 for platform control and curation. “Restricted Mode” affects tens of millions of YouTube users 22 every single day. 23 118. According to Alice Wu, a Senior Manager of Trust & Safety at YouTube, LLC, 24 about 1.5 percent of YouTube’s daily views (or approximately 75 million of the nearly 5 billion 25 views every single day) come from people who have activated Defendants’ “Restricted Mode.” 26 119. According to Defendants, “Restricted Mode” is supposed to function much like a 27 curtain that blocks access to the hardcore pornography section at the corner video rental shop, 28 1605366.1 Case No. -31CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 36 of 239 1 limiting viewer access by younger, sensitive audiences to video content that contains certain 2 specifically enumerated “mature” aspects. 3 120. Defendants assert that “Restricted Mode” is a tool “to help institutions like schools 4 as well as people who wanted to better control the content they see on YouTube with an option to 5 choose an intentionally limited YouTube experience.” “Restricted Mode” also can be activated by 6 system administrators to restrict all access on computer networks to all users and electronic devices 7 connected to the network, including viewers who seek to access video content in public libraries, 8 schools, and other public institutions or private workplaces. 9 121. While Defendants claim that viewers control the use of “Restricted Mode,” and can 10 choose to turn on “Restricted Mode” for their personal accounts, there is growing evidence that it 11 sweeps more broadly. In certain instances, for viewers who do not have YouTube accounts and 12 seek to view videos posted on YouTube by Plaintiffs and other persons similarly situated, 13 Defendants have applied “Restricted Mode” to prevent those viewers from accessing videos 14 through links posted on other social media platforms that are not owned or controlled by 15 Defendants, as well as to prevent YouTube users who have not activated “Restricted Mode” from 16 accessing those videos. 17 122. 18 According to Defendants, “Restricted Mode” can be applied to videos in three ways. a. First, Defendants examine certain “signals” like the video’s metadata, title, 19 and tag words associated with the video. When creators post videos, Defendants invite them to 20 include certain information in the title or to input “tag” words which are purportedly designed to 21 help viewers find videos in which they are interested, such as a title reflecting the subject of the 22 video, and tag words indicating the video’s themes or content. Plaintiffs and other persons 23 similarly situated unwittingly provide Defendants with such titles and tag words along with their 24 posted videos. Defendants then generate metadata which is additional content that they insert into, 25 append to, or associate with the videos that are posted, which allows Defendants apply A.I., 26 algorithms and other filtering tools to profile Plaintiffs, their subscribers and viewers, as well as 27 other persons similarly situated, and to sort them by race, identity and viewpoints. Defendants 28 ultimately apply “Restricted Mode” to the otherwise compliant videos posted by Plaintiffs and 1605366.1 Case No. -32CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 37 of 239 1 other persons similarly situated, because the videos have titles or tag words that reflect issues of 2 importance to African American or other racial communities, and those who simply watch videos 3 popular in such communities – essentially relegating these videos to a limited audience which 4 excludes white, conservative and/or “more sensitive viewers,” simply because the videos were 5 made by or for members of protected racial classifications under the law. 6 b. Second, Defendants claim that such metadata “signals” identify videos 7 which violate Defendants’ Community Guidelines or TOS. However, these “signals” are used by 8 Defendants as a pretext to segregate disfavored content using “Restricted Mode,” regardless of 9 whether the video contains material which is unsuitable for children, younger audiences or more 10 sensitive viewers. Defendants themselves create all such metadata and insert, embed or associate 11 that metadata which reflects demographic information regarding the video creators, channel 12 subscribers and viewers, along with individual videos to create more “signals” for A.I., algorithms, 13 and filtering tools to utilize. Thus, in certain cases, videos that would otherwise pass through the 14 filtering process without incident, are flagged for restrictions by Defendants; not because of 15 anything in the video content, but because of metadata or other “signal” information that 16 Defendants themselves have inserted, embedded or associated with the video. These signals 17 include information about the race, identity and/or individual viewpoint of the video creator, her 18 subscribers, and her viewers. 19 c. Third, Defendants also purportedly use “Restricted Mode” to passively 20 restrict a video if it is “flagged” as “inappropriate” by anyone in the “community” of YouTube 21 users. According to Defendants, the so-called “flagged” videos are subsequently reviewed by a 22 “team” of human reviewers for “violations” of Community Guidelines and/or TOS. But flagged 23 videos are subject to Defendants’ own internal review procedures that are race, identity and 24 viewpoint based, so that many flagged videos posted by Plaintiffs and other persons similarly 25 situated may never receive an independent content review by a human being, much less a YouTube 26 employee. 27 123. As shown below, when a network administrator or an individual viewer activates 28 “Restricted Mode,” each video subject to “Restricted Mode” appears with Defendant‘s custom 1605366.1 Case No. -33CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 38 of 239 1 stamp of disapproval, including a red face including a red square bearing a foreboding facial 2 expression, together with text showing “This video is unavailable with Restricted Mode enabled. 3 To view this video, you will need to disable Restricted Mode.” 4 124. Defendants’ stamp of disapproval thus makes a specific and falsifiable 5 misrepresentation to viewers of videos posted by Plaintiffs and other persons similarly situated, that 6 the specific video that they have attempted to access contains content that is so inappropriate, 7 shocking and outrageous, that the viewer must be protected from that content and that the 8 YouTuber creator who has posted that content is responsible for having created and uploaded such 9 inappropriate, shocking, and outrageous content. 10 125. These specific and falsifiable factual representations are by no means limited to 11 Defendants’ “Restricted Mode” stamp of disapproval. Viewers who attempt to ascertain why a 12 particular video has been subjected to “Restricted Mode” are told by Defendants that videos are 13 eliminated from “Restricted Mode” when they include specific pieces of content, including content 14 (1) talking about drug use or abuse, or drinking alcohol in videos; (2) overly detailed conversations 15 about or depictions of sex or sexual activity; (3) graphic descriptions of violence, violent acts, 16 natural disasters and tragedies, or even violence in the news; (4) videos that cover specific details 17 about events related to terrorism, war, crime, and political conflicts that resulted in death or serious 18 injury, even if no graphic imagery is shown; (5) inappropriate language, including profanity; and 19 (6) video content that is gratuitously incendiary, inflammatory, or demeaning towards an individual 20 or group. 21 126. In reality Defendants’ definition of “Restricted Mode” is applied in a significantly 22 over inclusive and under inclusive manner, which has caused significant damage to Plaintiffs and 23 other persons similarly situated. Even the most simple examination of Plaintiffs’ videos subject to 24 “Restricted Mode” shows that Defendants are not only dead wrong in their representations to the 25 public concerning African American videos that Defendants subject to the “Restricted Mode” 26 stamp of disapproval, but Defendants are hiding from the public valuable content and are doing so 27 in bad faith. 28 1605366.1 Case No. -34CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 39 of 239 1 127. To the extent that videos which have titles or tags which include “abbreviations like 2 “BLM,” “KKK;” terms such as “Black,” “White,” “Racism,” “Boogaloo,” “White Supremacy,” 3 “Racial Profiling,” “Police Shootings,” “Police Brutality,” “Black Lives Matter;” names of 4 individuals such as those killed by law enforcement, “Bill Cosby,” “Louis Farrakhan;” names of 5 organizations such as “Ku Klux Klan,” “Nazi,” “Neo-Nazi,” “Aryan Brotherhood,” and/or other 6 euphemisms that are known and particular to the African American Community,” Defendants apply 7 the “Restricted Mode” filter to these videos and limit viewer access to many compliant videos 8 posted by Plaintiffs and other persons similarly situated, which contain content of interest to the 9 African American community. Defendants do so, despite the fact that the videos do not contain 10 materials which discuss drug use or abuse or drinking alcohol; overly detailed conversations about 11 or depictions of sexual activity; graphic depictions of violence, violent acts; natural disasters or 12 tragedies or violence in the news; specific details about events related to terrorism, war, crime and 13 political conflicts that resulted in death or serious injury even if no graphic imagery is shown; 14 inappropriate language, including profanity, or content that is gratuitously incendiary, 15 inflammatory, or demeaning toward an individual or group. 16 128. Defendants effectively use “Restricted Mode” as a damper to quiet the voices of 17 Plaintiffs and other persons similarly situated, from being heard by all YouTube users and to limit 18 Plaintiffs’ reach, thereby preventing them from growing their channels, increasing subscribers and 19 viewers, generating revenue, and meeting minimum participation standards to qualify for 20 Defendants’ other benefits such as YouTube partnership, Channel Membership, Mobile Streaming 21 and SuperChat. 22 129. Once Defendants apply “Restricted Mode” to a video, Plaintiffs and other persons 23 similarly situated are then forced to spend time and effort to appeal Defendants’ decision and 24 persuade a human being to actually look at the content of the video. Even when the appeal is won, 25 Plaintiffs and other persons similarly situated lose the opportunity to generate interest in and 26 revenue from the new video for a period of weeks to months, and to thereby grow their channel 27 during the period that the video is restricted. Defendants never compensate for the erroneous 28 1605366.1 Case No. -35CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 40 of 239 1 application of “Restricted Mode,” regardless of the length of time it takes for Defendants to 2 actually review the restricted video content. 3 130. Defendants impose these restrictions to justify anticompetitive and unlawful actions 4 intended to gain a competitive advantage for their own video content and/or to ensure that their 5 sponsored creators, content partners, and advertisers have an unfair competitive advantage in the 6 YouTube video market. By placing no restrictions on the monetization of their own videos or those 7 of Defendants’ sponsored creators, content partners and preferred advertisers, Defendants gain a 8 competitive advantage by restricting the financial reach of Plaintiffs and other disfavored users, 9 while simultaneously ensuring that their own video content (and those of their sponsored creators, 10 content partners and preferred advertisers) are not subjected to the same (or any) Advertising 11 Restrictions. 12 131. Defendants also impose these restrictions to facilitate their advertising practices, 13 whereby they profile videos by the race, identity and viewpoint of creators, subscribers and viewers 14 so as to identify the videos with the most valuable demographics which command the highest 15 prices from most advertisers, without regard to whether there are any advertisers which are willing 16 to purchase spots associated with videos posted by Plaintiffs and other persons similarly situated. 17 132. Defendants’ actual practices unlawfully provide Defendants with monopoly power 18 over the video posting and viewership market, the video advertising market, and the ability to 19 manipulate, bully, and falsely denigrate legitimate YouTube users, like Plaintiffs and other persons 20 similarly situated, by subjectively designating their speech as “inappropriate,” because Defendants 21 do not like or agree with the speakers’ race, identity or point of view; or because Defendants are 22 too cheap to actually review the videos posted to the platform, and desire to rely on inexpensive 23 A.I., algorithms, and other filtering tools for purposes of selling advertisements and curating videos 24 on YouTube. 25 4. 26 133. Shadow Banning Channels And Videos Defendants treat videos that present or discuss serious issues and current events that 27 are important to the communities of the Plaintiffs and all other persons similarly situated as “not 28 family friendly,” and as if they are inappropriate for all audiences simply because they were 1605366.1 Case No. -36CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 41 of 239 1 uploaded by creators whose races, identities, and/or viewpoints are disfavored by Defendants. 2 Defendants are not merely removing, restricting access to or limiting monetization for videos 3 posted by Plaintiffs and all other persons similarly situated, Defendants are making those videos, 4 and some channels invisible on the YouTube Platform, despite the fact that the videos comply with 5 all of Defendants’ Community Guidelines and TOS. 6 134. In shadow banning videos, Defendants effectively prevent Plaintiffs’ subscribers 7 and potential viewers from locating new videos which discuss issues and current events that are 8 followed by the African American community; by excluding such videos from the YouTube search 9 function on the platform, Defendants are preventing creators like Plaintiffs and all other persons 10 similarly situated from growing their channels by securing the necessary subscriber and viewer 11 numbers required to qualify for Defendants’ special programs and perks, such as YouTube 12 partnership, channel membership, mobile Livestreaming, or SuperChat applications, and are 13 preventing them from generating revenue from their videos. 14 135. Defendants also shadow ban entire channels belonging to Plaintiffs and other 15 similarly situated persons, by making the channels unsearchable on the platform. Without a link to 16 Plaintiffs’ channels, subscribers and viewers cannot access Plaintiffs’ videos. As a result of 17 shadow banning of channels, many Plaintiffs and other persons similarly situated can only attract 18 new subscribers or viewers by “word of mouth,” and referrals from other members of their 19 community, or from other social media platforms where links to Plaintiffs’ YouTube channels are 20 posted. 21 136. Defendants’ shadow bans not only impair the growth of channels belonging to, and 22 revenue generated from videos posted by Plaintiffs and other persons similarly situated, 23 Defendants’ conduct both effectively reduces the audience for videos posted by Plaintiffs and 24 muffles their voices across the platform, making it impossible for new YouTube viewers to locate 25 video content that is important to their specific communities. As a result, Plaintiffs, as African 26 American creators, and other persons similarly situated, cannot expand subscriber and viewer 27 numbers sufficient to grow their channels and fully enjoy full access to the YouTube platform and 28 all of the benefits Defendants offer others. 1605366.1 Case No. -37CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 42 of 239 1 5. Delegating Content Review And Regulation To Racists And White Supremacists 2 137. Defendants have configured the YouTube platform to allow any user to “report” or 3 “flag” videos which they believe violate the Google/YouTube Community Guidelines or TOS, e.g., 4 video content which contains hate speech, nudity, profanity, graphic depictions of sexuality or 5 violence, disparaging remarks, content which violates existing copyrights or trademarks held by 6 persons other than the creator posting the video, or descriptions of violent events and scenes which 7 may disturb younger or more sensitive viewers. Defendants not only allow users to “report” or 8 “flag” videos posted by Plaintiffs and other persons similarly situated, Defendants take action 9 based on those third-party reports and flags and proceed to remove, restrict, and/or demonetize 10 individual videos; issue community “strikes;” and to suspend, and/or remove whole channels of 11 Plaintiffs and other persons similarly situated. Defendants do so without first verifying that the 12 flagged video violates a specific Community Guideline or Term of Service. In effect, Defendants 13 deputize YouTube users, including racists, sexists, white supremacists, Neo-Nazis, and other hate 14 speech trolls. These delegated and affiliated users, exercise censorship powers on YouTube, 15 including reporting, flagging, bullying and threatening creators whenever Plaintiffs and other 16 persons similarly situated post content with which Defendants’ racist agents disagree. 17 138. In allowing third parties to wield the power to report or flag a video as violating the 18 applicable Community Guidelines and TOS, Defendants have deprived Plaintiffs and other persons 19 similarly situated, of equal access to the YouTube platform and all of the services Defendants make 20 available to others by creating the presumption that any flagged video does in fact contain content 21 which violates the Community Guidelines and/or TOS. After being flagged by a third party, 22 Plaintiffs and other persons similarly situated are forced to spend substantial time and effort to 23 appeal the flag in order to restore the channel/video, remove the restriction, or obtain full 24 monetization for channel/video, which, but for the flag, would have reached a wide audience and 25 would have generated substantial revenue. 26 139. Because of Defendants’ conduct and practices, trolls regularly appear on the 27 channels of Plaintiffs and other persons similarly situated, threaten to shut down the channels – and 28 1605366.1 Case No. -38CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 43 of 239 1 within a few days, the trolls succeed in getting Defendants to suspend the channels. As a result, 2 Plaintiffs and other persons similarly situated engage in self-censorship and avoid posting videos 3 that address issues of historical, political, cultural, and educational significance to their 4 communities. Recently, Plaintiffs and other persons similarly situated have avoided timely topics 5 such as the denial of Covid-19 testing and treatment to African American healthcare workers, the 6 inability of African American businesses to apply for CARE loans, and the disparate enforcement 7 of stay at home orders against African American communities. Defendants’ conduct therefore 8 encourages and enables the agendas of racists, white supremacists, and Neo-Nazis on YouTube, by 9 silencing the voices of Plaintiffs and other persons similarly situated. 10 6. 11 140. Interfering With Livestream Broadcasts Livestream broadcasts are videos that are posted in a streaming live format which 12 are controlled exclusively by creators or by the moderators designated and authorized by individual 13 creators to review, edit, and remove viewer comments which appear as the video progresses over 14 time. Livestream broadcasts allow real time viewer participation in discussions on YouTube 15 channels and often involve hundreds of people all making comments regarding important issues, 16 current events, or topics. YouTube’s Livestream broadcast application allows the video creator and 17 her designated moderators to control the content of the broadcast. They control the viewer 18 participation in the comments section of the screen while the Livestream is played. 19 141. Because Defendants routinely restrict viewer access to and revenue generation from 20 videos posted by Plaintiffs and other persons similarly situated, depressing subscriber and viewer 21 numbers, many African American channels do not generate significant income from advertising or 22 Channel Membership. They must rely on other applications to generate revenue, such as 23 Defendants’ SuperChat, Livestream Donations or Patreon Donations. As a result, Livestream 24 broadcasts have become a primary revenue generator. 25 142. Defendants regularly interfere with the Livestream broadcasts by Plaintiffs and all 26 persons similarly situated, either using employees or independent contractors which Defendants 27 hire. Defendants’ Livestream interference includes such tactics as: (a) stopping Livestream 28 broadcasts, and forcing the creator to restart the broadcast, at the loss of viewers and to the 1605366.1 Case No. -39CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 44 of 239 1 irritation of subscribers; (b) throttling (intentionally slowing ) broadcasting speeds during 2 Livestream which distorts the oral discussion and disrupts viewer comments on the screen; (c) 3 inserting new voice content and/or visual images into the video which are entirely unrelated to the 4 decisions and choices of the channel creator and her chosen moderators, often such new voice 5 overs and images are unrelated to the Livestream topic, and are offensive, misogynistic, racist, or 6 obscene; (d) removing positive comments from viewers; and (e) disconnecting individual viewers 7 who are in the process of leaving positive comments, thereby silencing viewers who would 8 otherwise support the video or make monetary donations on the Livestream broadcast. 9 143. For the past two years, until stay at home orders for nonessential businesses were 10 imposed in the Bay Area in March of this year, Defendants’ Livestream broadcast interference was 11 relentless, causing Plaintiffs either to suspend Livestream broadcasts, to self-censor and refrain 12 from discussing issues or current events of interest to the African American community, or to 13 conduct them at odd hours without prior announcements. Defendants’ conduct in interfering with 14 Livestream broadcasts has reduced subscriber and viewer numbers for the channels of Plaintiffs 15 and other persons similarly situated, has reduced revenue generated from Livestream broadcasts 16 and from the channels overall, and has prevented the African American community from receiving 17 information about and discussing issues and current events which are important to members of that 18 community. 19 144. Notably, for the weeks while stay at home orders were in place for the Bay Area, 20 Plaintiffs were able to conduct Livestream broadcasts unmolested. However, Defendants’ 21 interference has recommenced with the lifting of stay at home orders. Defendants’ interference is 22 now ongoing. 23 7. Excluding Videos From “Trending” And “Up Next” Video Recommendations 24 145. Defendants routinely exclude videos posted by Plaintiffs and all persons similarly 25 situated from YouTube’s “Trending” and “Up Next” Recommendations which appear on users’ 26 screens when they watch videos on YouTube. While Defendants exclude the videos of Plaintiffs 27 and other persons similarly situated, they include in the “Trending” and “Up Next” applications 28 1605366.1 Case No. -40CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 45 of 239 1 both reaction videos which copy, pirate, or parody the videos of Plaintiffs, and videos which violate 2 Defendants’ Community Guidelines and/or TOS in so far as the videos contain hate speech, 3 obscene, misogynistic, violent, threatening, or disparaging content which is directed specifically at 4 Plaintiffs and other persons similarly situated. Defendants have continued to include these videos 5 posted by third parties over the repeated flags, written objections, and complaints by Plaintiffs and 6 their subscribers, and they have fully monetized many such videos despite having received flags, 7 objections and complaints that the videos violate Defendants’ Community Guidelines and TOS. 8 8. 9 146. Freezing Channel Analytics Re Subscribers And Viewers Defendants have stopped reporting accurate current data on the “Analytics” pages 10 for the channels of Plaintiffs and other persons similarly situated. For the past two years, many of 11 the Plaintiffs’ “Analytics” have remained the same or have varied by very small increments with 12 respect to the number of subscribers, viewers, and view time. This has been the case regardless of 13 the number of videos posted or the number of Livestream events broadcast on the channel. 14 147. As with the Defendants’ interference with Livestream broadcasts, during the period 15 of time that stay at home orders were in effect in the Bay Area in the Spring of 2020, new and 16 larger numbers have been appearing on the “Analytics” pages for some of the channels of Plaintiffs 17 and other persons similarly situated. Whether the “Analytics” pages will continue to be updated 18 after the lifting of stay at home orders remains to be seen. 19 148. Because Defendants stopped reporting accurate data regarding the number of 20 subscribers, viewers and view time for the channels of Plaintiffs and other persons similarly 21 situated, Plaintiffs have been unable to grow their channels, to demonstrate that they qualify for 22 Defendants’ additional benefits and perks such as monetization, Channel Membership, Mobile 23 Access, or SuperChat. Plaintiffs and other persons similarly situated have also lost revenue as they 24 are unable to prove to Defendants the number of viewers for their videos which have at least 25 limited monetization. 26 27 28 1605366.1 Case No. -41CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 46 of 239 1 9. 2 149. Promoting And Profiting From Hate Speech Defendants regularly promote and monetize hate speech targeting Plaintiffs and all 3 persons similarly situated on the YouTube platform in direct violation of Defendants’ Community 4 Guidelines and TOS, and ignore repeated flags, reports and complaints regarding those videos. 5 150. Many hate speech videos targeting the African American community on YouTube 6 include identifying information regarding Plaintiffs and other persons similarly situated, including 7 without limitation their telephone numbers, residential addresses, registered trademarks, original 8 copyrighted material, or personal likenesses, in direct violation of Defendants’ Community 9 Guidelines and TOS. Plaintiffs and other persons similarly targeted on the YouTube platform have 10 followed Defendants’ published procedures to remove the hate speech, including flagging the 11 videos, reporting the violations of Defendants’ Community Guidelines and Terms of Use by email, 12 and sending follow up emails complaining of both the videos and the channels on which the videos 13 are posted. The subscribers of Plaintiffs have reported that they too have flagged, reported and 14 written follow up emails to Defendants complaining of the hate speech videos and their related 15 channels. 16 151. Despite having received repeated, multiple flags, reports and written complaints 17 over a period of months concerning specific hate speech videos posted by Defendants’ favored 18 partners, Defendants have refused to do anything to enforce their own published Community 19 Guidelines and TOS and have not removed the videos or suspended the channels posting such 20 videos. To this day, many hate speech videos remain posted without restriction, and fully 21 monetized to generate revenue for their creators, despite having content that is patently false, racist, 22 and/or sexist, violent, abusive or obscene. Some of the hate speech videos include threats of bodily 23 harm or death specifically directed at the Plaintiffs and other persons similarly situated. Some hate 24 speech videos are posted in a way that falsely indicates that it was posted by Plaintiffs. 25 152. Among the many YouTube channels which Defendants insulate for enforcement of 26 Community Guidelines and TOS, the channels of Tommy Sotomayor and Candace Owens 27 particularly stand out for their hateful, racist, and misogynist video content. Tommy Sotomayor 28 regularly posts videos which promote violence against members of the African American 1605366.1 Case No. -42CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 47 of 239 1 community. Candace Owens regularly posts videos disparaging male members of the African 2 American community. Though Plaintiffs, their subscribers and other persons similarly situated 3 repeated flagged, reported and complained about these two channels and their posted videos, as 4 wells as their trolls who engage in abusive, bullying conduct directed to YouTube users who 5 mention Sotomayor or Owens, Defendants nonetheless regularly include videos posted by 6 Sotomayor and by Owens in the “Trending,” and “Up Next” recommendation applications on the 7 screens of African American viewers. Defendants have rendered “flag proof” the channels of 8 Sotomayor and Owens, and videos posted there. 9 153. Defendants’ refusal to enforce their own Community Guidelines and TOS equally to 10 all YouTube users to eliminate hate speech videos; Defendants’ continued promotion of hate 11 speech videos by including them in the “Trending,” and “Up Next” applications; and Defendants’ 12 continued monetization of hate speech videos and profiting from the sale of advertisements in 13 connection with such videos have substantially reduced racial diversity on the YouTube platform 14 and have endangered YouTube users like Plaintiffs and other persons similarly situated. 15 Defendants’ conduct has stifled the voices of Plaintiffs and other persons similarly situated, who 16 are unable to reach their intended audiences or to post videos which address or discuss issues and 17 current events of concern to the African American community because while Plaintiffs’ compliant 18 videos are wrongly removed, restricted and demonetized as “hate speech,” Defendants protect, 19 promote and profit from vile, vicious, hate speech, and personal attacks on Plaintiffs and other 20 persons similarly situated. Plaintiffs have received harassing telephone calls and written 21 communications, forcing them to change their telephone numbers and to move from their homes. 22 They have also lost subscribers, viewers and revenue as a result of Defendants’ failure and refusal 23 to enforce their own Community Guidelines and TOS equally on all YouTube users. 24 10. 25 154. Interfering With, Obstructing, Ignoring And Delaying Appeals Following Defendants’ actions to limit monetization or demonetize a video, or to 26 remove or restrict a video, or to issue a strike against or to suspend a channel, Plaintiffs and other 27 persons similarly situated are forced to spend time and effort to appeal Defendants’ decision and to 28 persuade a human being to actually look at the otherwise compliant video(s) in question. Often, 1605366.1 Case No. -43CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 48 of 239 1 appeals by Plaintiffs and other persons similarly situated drag on for months before Defendants 2 respond to the appeal, but Defendants often do not even respond to Plaintiffs’ appeals and either 3 ignore them entirely or confirm the action out of hand, without having a human being review the 4 video content that was the basis for Defendants’ actions. In reality, Plaintiffs and other persons 5 similarly situated often have no real appeal at all. 6 155. On those rare events when an appeal filed by Plaintiffs or other persons similarly 7 situated are successful, after a human being actually review the video content in question and 8 concludes that Defendants’ action was wrongly imposed, Defendants do not reimburse the creator 9 for lost revenue from the video(s) or the channel during the appeal process. Defendants therefore 10 have a perverse incentive built in their platform regulation, filtering and curation process: by 11 automating the application of “Restricted Mode,” the monetization limitation process, and 12 authorizing members of the YouTube community to flag videos and channels following, which 13 Defendants automatically rely and act on those flags without first verifying videos/channels are in 14 violation of Community Guidelines or TOS, Defendants don’t have to pay the affected creators for 15 the use of their video content, and can withhold payment unless and until a success appeal occurs. 16 At each step of the appeal process, Defendants continue to withhold payment of revenue generated 17 by the affected videos, profiting from their own improper decisions. Defendants absolutely control 18 the process: they can ignore an appeal, delay the process by weeks, months or even years, or 19 simply confirm the adverse action without ever examining the offending video content – there is no 20 oversight, no higher authority, no way to force Defendants to follow their own Community 21 Guidelines or TOS. 22 156. Defendants’ conduct in interfering with, obstructing, ignoring and/or delaying 23 appeals has deprived Plaintiffs and all persons similarly situated of the use of hundreds of their own 24 videos which Defendants have wrongly removed from the YouTube platform or placed in archives 25 where they cannot be viewed by anyone, have deprived Plaintiffs and all persons similarly situated 26 of subscriber and viewer numbers generated from their channels which Defendants have wrongly 27 suspended or removed from the YouTube platform, and have deprived Plaintiffs and all persons 28 similarly situated of the full financial benefits from all of their otherwise compliant videos which 1605366.1 Case No. -44CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 49 of 239 1 Defendants have improperly removed, restricted or demonetized for any period of time. 2 Defendants operate the YouTube platform like a Las Vegas casino, ensuring that “the house always 3 wins,” no matter how much time, effort, or value Plaintiffs and other persons similarly situated 4 contribute to the platform because in the end, Defendants pick the winners based on race and other 5 immutable identity traits, and viewpoints; Defendants write and rewrite the Community Guidelines 6 and TOS; Defendants determine which users are exempt from those Community Guidelines and 7 TOS; and Defendants define the appeal process to be whatever they want for any given YouTube 8 user. 9 D. Defendants Have Violated And Continue To Violate The Rights Of Plaintiffs And The Class 10 1. 11 157. Kimberly Carleste Newman Plaintiff Newman has been a registered YouTube user since 2015, creating and 12 posting approximately 1,654 videos on her “The True Royal Family” YouTube channel; and since 13 2016, creating and posting 209 videos on her “True Royal” YouTube channel. Plaintiff Newman is 14 an African American woman who identifies as such. 15 158. Plaintiff Newman makes and posts videos that discuss and present information 16 regarding issues and current events which are important to the African American community, from 17 a Black perspective. While her videos are pro-Black, they are not intended solely to inform and 18 entertain the African American Community; they are suitable for members of other communities 19 who are sympathetic to or curious about issues and current events as perceived from a Black 20 perspective. “The True Royal Family” channel has generated approximately 1 million views 21 annually. The “True Royal” channel has generated approximately 200,000 views annually. 22 Notwithstanding the substantial annual viewer numbers generated by her channels, Plaintiff 23 Newman has only generated total revenues of $2,672.68 for videos posted on “The True Royal 24 Family,” and $123.96 for videos posted on the “True Royal” channel. 25 159. Plaintiff Newman is informed and believes that Defendants have gathered extensive 26 information in order to generate metadata and then insert, embed, append, or associate such 27 metadata with the videos posted to “The True Royal Family,” and “True Royal.” Defendants 28 1605366.1 Case No. -45CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 50 of 239 1 gathered information regarding her race (Defendants know that Plaintiff Newman is an African 2 American woman); that she makes and posts videos which have as a subject, relate to or discuss 3 issues and current events that are important to members of the African American community; her 4 subscribers either self-identify as members of the African American community or watch many 5 videos posted by other creators who have self-identified as members of the African American 6 community; and many of those who view her videos either self-identify as members of the African 7 American community or watch videos posted by other creators who have self-identified as 8 members of the African American community. 9 160. Plaintiff Newman is informed and believes that Defendants have applied “Restricted 10 Mode” and have limited monetization for videos she posted to “The True Royal Family” and “True 11 Royal” because Defendants have a policy and practice of using A.I., algorithms, and other filtering 12 tools to classify, curate, censor, and sell advertisements for YouTube videos based on metadata 13 Defendants create from information regarding the race, identity and viewpoint of creators, 14 subscribers and viewers, rather than the content of the videos posted to the YouTube platform. 15 161. Defendants have applied “Restricted Mode” and have limited monetization to nearly 16 all of the videos which remain visible to viewers on “The True Royal Family,” and nearly all of the 17 videos posted to “True Royal,” despite the fact that each of the videos fully complies with all of 18 Defendants’ Community Guidelines and TOS, and contain no nudity, sexualized scenes or 19 language, graphic depictions of sex or violence, drug abuse, or alcohol consumption. Defendants 20 have applied “Restricted Mode” to most of the videos posted, and have allowed only very limited 21 monetization for some videos, without any explanation or rationale for doing so. Plaintiff Newman 22 is informed and believes that the sole reason that Defendants have acted in this fashion is that 23 Defendants discriminate against Plaintiffs and other persons similarly situated based on race, e.g., 24 the videos were created by an African American; the videos relate to issues and events of concern 25 to the African American community, and the videos are viewed by large numbers of members of 26 the African American community. 27 162. For various periods, off and on, throughout the past five years, Defendants have 28 shadow banned both individual videos posted by Plaintiff Newman, and her channels, “The True 1605366.1 Case No. -46CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 51 of 239 1 Royal Family,” and “True Royal.” Viewers have informed Plaintiff Newman that they were unable 2 to locate individual videos using YouTube search applications and terms such as “Kimberly 3 Santana,” “The True Royal Family,” “True Royal,” or using as search terms the names of 4 individual videos posted by Plaintiff Newman. Viewers have further informed Plaintiff Newman 5 that when they searched for “African American” video content, YouTube search applications 6 produced videos posted by Tommy Sotomayor consisting of hate speech and content which 7 disparages members of the African American Community. 8 163. Defendants do not provide any receipt or record of any kind when YouTubers 9 “flag,” report, or complain about videos posted by other YouTube creators. Because of 10 Defendants’ practices regarding such YouTube users’ efforts to obtain redress for violations of 11 their rights, individual creators like Plaintiffs and other persons similarly situated are not able to 12 prove that they, in fact, flagged any individual video or channel. For those users whom Defendants 13 disfavor, the videos and channels are not automatically removed, restricted or demonetized, and the 14 injured YouTube user cannot prove that she flagged the noncompliant or infringing video or 15 channel. Rather, disfavored users like Plaintiffs and other persons similarly situated are left to 16 make repeated written reports and complaints regarding the noncompliant or infringing video or 17 channel, often, to no effect whatsoever. Defendants merely ignore those written reports and 18 complaints too. 19 164. Plaintiff Newman registered “The True Royal Family” name and an associated 20 image as trademarks. As part of the channel creation process, Defendants ask YouTube creators if 21 they are using marks which have been registered as a trademark. When she created “The True 22 Royal Family” channel, Plaintiff Newman informed Defendants that she had registered her channel 23 name and a specific image used with thumbnail tiles as trademarks. Nonetheless, Defendants 24 refused to remove videos using Plaintiff Newman’s registered trademark image from the channels 25 of other YouTube creators in response to Plaintiff’s repeatedly flagging such videos, reporting the 26 trademark infringement for the mark by the channel, and repeated unauthorized uses of “The True 27 Royal Family” name. For a period of years, Defendants have ignored Plaintiff Newman’s 28 1605366.1 Case No. -47CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 52 of 239 1 complaints and allowed other YouTube users to infringe on her trademarks with impunity, in 2 violation of Defendants’ own Community Guidelines and TOS. 3 165. While Defendants refuse to protect the intellectual property of Plaintiffs and other 4 persons similarly situated, Defendants routinely flag or remove videos, and suspend channels for 5 violating the intellectual property of others. Defendants flagged a video posted by Plaintiff 6 Newman in which she personally sings acapella a song written by Stevie Wonder on grounds that 7 she was infringing the copyright for the song. Plaintiff’s channel was suspended for two weeks for 8 the purported infringement. 9 166. In September 2019, a third party hacked “The True Royal Family” channel and 10 removed over 600 of Plaintiff Newman’s videos so that neither the public nor Plaintiff Newman 11 could view, access, or download any of the videos or portions thereof. Plaintiff Newman promptly 12 applied to Defendants, asking that they restore the videos to “The True Royal Family” channel. 13 Defendants agreed to return the videos, but has not done so. 14 167. Months later, in 2020, rather than restoring the original 600+ videos, Defendants 15 removed another group of videos from the channel totaling more than 100 individual videos. 16 Plaintiff Newman again appealed to Defendants to restore or return all of the 700+ missing videos 17 removed from “The True Royal Family,” but Defendants have failed and refused to do so without 18 any explanation as to why the original 600+ videos have not been restored, why the additional 19 100+ videos were removed, or why they have not been restored or returned. 20 168. Plaintiff Newman has been deprived of subscribers, viewers and revenue from the 21 700+ missing videos for more than nine months, and Defendants have done nothing to address her 22 ongoing injury or lost revenue. 23 169. Defendants have used A.I., algorithms, and filtering tools to restrict the reach of her 24 videos and to prevent her from increasing subscriber and viewer numbers to grow her channels and 25 generate revenue. For the past several years, the analytics page reflecting subscriber and viewer 26 numbers for “The True Royal Family” channel have remained steady, varying little from month to 27 month regardless of the number of new videos posted or the Livestream broadcasts. To avoid the 28 impact of Defendant’ A.I., algorithms and filtering tools on Defendants’ metadata generated from 1605366.1 Case No. -48CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 53 of 239 1 video titles and tags, Plaintiff Newman intentionally self-censors: (a) she avoids using 2 controversial video titles; (b) she avoids using abbreviations like “BLM,” “KKK;” terms such as 3 “Black,” “White,” “Racism,” “Boogaloo,” “White Supremacy,” “Racial Profiling,” “Police 4 Shootings,” “Police Brutality,” “Black Lives Matter;” names, such as those of individuals such as 5 those killed by law enforcement, “Bill Cosby,” “Louis Farrakhan;” names of organizations such as 6 “Ku Klux Klan,” “Nazi,” “Neo-Nazi,” “Aryan Brotherhood,” and euphemisms that are known and 7 particular to the African American Community; she intentionally misspells terms such as “Black,” 8 “White,” “Race,” “Racism,” and “Racial Profiling,” because Defendants routinely flags such terms. 9 170. Despite her efforts to self-censor and avoid the reach of Defendants’ A.I., 10 algorithms, and filtering tools, most of the videos posted on “The True Royal Family” and “True 11 Royal” have only limited monetization, if any, and produce next to no revenue. 12 171. Plaintiff Newman has increasingly turned to Livestream broadcasts to generate 13 revenue from her video content. Viewers can make monetary donations to YouTube creators like 14 Plaintiffs using SuperChat during Livestream broadcasts. However, for the past two years, 15 Defendants have been interfering with Livestream broadcasts on “The True Royal Family.” 16 Subscribers to “The True Royal Family” have informed Plaintiff Newman that their favorable 17 comments have been interrupted or removed, they have been booted off of the Livestream or 18 prevented from posting comments, and they have been prevented from making donations during 19 Livestream broadcasts. The subscribers’ experiences, as related to Plaintiff Newman, involve 20 conduct which is the exclusive province of the channel owner or their designated moderator(s). 21 Plaintiff Newman had not designated any moderator for the Livestream broadcasts which were the 22 subjects of subscriber complaints. Defendants also have been throttling, interrupting and even 23 cutting off Livestream video broadcasts in the middle of the event. Additionally, Defendants have 24 been inserting voice and visual content which blocks out that which Plaintiff Newman is posting 25 live. 26 172. Defendants’ conduct during “The True Royal Family” Livestream broadcasts have 27 reduced subscriber participation and interest in such events, have reduced new viewer participation, 28 1605366.1 Case No. -49CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 54 of 239 1 and have reduced the number and size of viewer donations to “The True Royal Family” channel 2 depriving Plaintiff Newman of new subscribers and revenue. 3 173. Plaintiff Newman has also experienced significant and extended bullying, 4 harassment, disparaging remarks and threats of physical violence on YouTube, both in the form of 5 trolls leaving comments on “The True Royal Family” channel, and in the form of abusive and 6 threating videos posted by other YouTube creators. Videos bearing Plaintiff Newman’s name, and 7 containing profanity and obscene content have been posted on the YouTube platform. A video 8 threating to kill her was also posted on the platform. Such videos violate Defendants’ Community 9 Guidelines and TOS, and should be removed as such. However, Defendants’ A.I., algorithm, and 10 other filtering tools not only failed to identify these violations of the applicable rules, Defendants 11 failed and refused to respond to efforts by Plaintiff and her subscribers to flag the videos, or to 12 written reports and complaints regarding the disparaging and threatening videos, much less to 13 enforce Defendants’ own public standards and remove the videos or suspend the channels 14 responsible for posting the videos. 15 174. As a direct and proximate result of Defendants’ racial discrimination and wrongful 16 conduct, “The True Royal Family” and “True Royal” have not substantially increased their 17 respective subscriber and viewer numbers in recent years. Plaintiff Newman has suffered, and 18 continues to suffer from the loss of 700+ individual videos, improper application of Defendants’ 19 A.I., algorithms, and other filtering tools resulting in the shadow banning of her videos and her 20 channels, the misapplication of “Restricted Mode,” the improper limitations on monetization for 21 most of her videos, violations of her intellectual property rights and personal disparagement and 22 threats to her person. Defendants’ conduct is willful, intentional and unlawful in discriminating 23 against Plaintiff based on her race, identity and viewpoints, and those of her subscribers and 24 viewers in limiting access to the YouTube platform, related benefits, and opportunities to generate 25 revenue. 26 2. 27 175. Lisa Cabrera Plaintiff Cabrera has been a registered YouTube creator since 2015 when she 28 created the “Lisa Cabrera” channel. Plaintiff Cabrera registered “Lisa Cabrera” as a trademark in 1605366.1 Case No. -50CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 55 of 239 1 connection with her YouTube channel. 4,423 individual videos have been posted to the “Lisa 2 Cabrera” channel, 68 of those videos were archived by Defendants. The “Lisa Cabrera” videos 3 have generated more than 20 million views, with 830,000 views in just the past 28 days. 4 176. Plaintiff Cabrera is a YouTube partner. She creates and posts videos about current 5 events and news on her channels, displaying pictures and news clips in her videos with original 6 voice over commentary and narration accompanying the visual images. Despite the substantial 7 number of total and monthly views generated by the “Lisa Cabrera” channel, it has only generated 8 revenue totaling $25,500 over the past four years. 9 177. Plaintiff Cabrera is informed and believes that Defendants have gathered extensive 10 information in order to generate metadata and then insert, embed, append, or associate such 11 metadata with the videos posted to “Lisa Cabrera,” and “Lisa C.” Defendants gathered information 12 regarding her race (Defendants know that Plaintiff Cabrera is an African American woman); that 13 she makes and posts videos which have as a subject, relate to or discuss news and current events 14 that are important to members of the African American community; her subscribers either self15 identify as members of the African American community or watch many videos posted by other 16 creators who have self-identified as members of the African American community; and many of 17 those who view her videos either self-identify as members of the African American community or 18 watch videos posted by other creators who have self-identified as members of the African 19 American community. 20 178. Plaintiff Cabrera is informed and believes that Defendants have applied “Restricted 21 Mode” and have limited monetization for videos she posted to “Lisa Cabrera” and “Lisa C” 22 because Defendants have a policy and practice of using A.I., algorithms, and other filtering tools to 23 classify, curate, censor, and sell advertisements for YouTube videos based on metadata Defendants 24 create from information regarding the race, identity and viewpoint of creators, subscribers and 25 viewers, rather than the content of the videos posted to the YouTube platform. 26 179. Defendants have applied “Restricted Mode” and have limited monetization to most 27 of the videos on “Lisa Cabrera,” despite the fact that each of the videos fully complies with all of 28 Defendants’ Community Guidelines and TOS, and contains no nudity, sexualized scenes or 1605366.1 Case No. -51CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 56 of 239 1 language, graphic depictions of sex or violence, drug abuse, or alcohol consumption. Defendants 2 have applied “Restricted Mode” to most of the videos posted, and have allowed only very limited 3 monetization for some videos, without any explanation or rationale for doing so. Plaintiff Cabrera 4 is informed and believes that the sole reason that Defendants have acted in this fashion is that 5 Defendants discriminate against Plaintiffs and other persons similarly situated based on race, e.g., 6 Defendants restrict and demonetize the videos because they were created by an African American; 7 they relate to issues and events of concern to the African American community, and they are 8 viewed by large numbers of members of the African American community. 9 180. In addition to the Defendants’ efforts to reduced Plaintiff Cabrera’s reach by 10 misapplication of “Restricted Mode,” for various periods, off and on, throughout the past five 11 years, Defendants have shadow banned both individual videos posted by Plaintiff Cabrera, and her 12 channels, “Lisa Cabrera,” and “Lisa C” in their entirety. Viewers have informed Plaintiff that they 13 were unable to locate individual videos using YouTube search applications and terms such as “Lisa 14 Cabrera,” “Lisa C,” or using as search terms the names of individual videos posted by Plaintiff 15 Cabrera. 16 181. Because Defendants single out Plaintiffs and other persons similarly situated for 17 rigorous enforcement of Defendants’ Community Guidelines and TOS, to avoid receiving a 18 “strike” for copyright infringement and related channel suspension, Plaintiff Cabrera is careful 19 about complying with ‘fair use’ rules when using clips from someone else’s videos: she keeps 20 news clips short, averaging 1-4 minutes in length; she does not alter the original material in any 21 way; she always gives full credit in the video to the source of the original material of others. 22 182. Sometimes, Plaintiff Cabrera posts identical videos both on the “Lisa Cabrera” 23 channel and the “Lisa C” back up channel to see if they generate similar viewer numbers and are 24 treated the same by Defendants’ A.I., algorithms and other filtering tools. Sometimes, the identical 25 videos posted on the “Lisa C” channel generate more viewers and revenue than those posted on the 26 “Lisa Cabrera” channel. On six different occasions, Defendants flagged the “Lisa C” channel for 27 posting “100% of the video of another YouTube creator, despite the fact that the video was created 28 by Plaintiff Cabrera, registered owner of both channels, and despite Plaintiff Cabrera’s written 1605366.1 Case No. -52CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 57 of 239 1 communications to Plaintiffs notifying them that she had given permission to “Lisa C” to repost 2 each of the videos. Ultimately, Plaintiff was forced to archive each of the six videos that 3 Defendants had flagged on the “Lisa C” channel simply because Defendants claimed that she was 4 violating her own copyright on her own channel. 5 183. Defendants removed 68 of Plaintiff Cabrera’s videos without notice, explanation or 6 justification other than the videos involved copyright infringements. Though she promptly 7 appealed each removal, she was unable to have Defendants resolve the removal of the videos. 8 Defendants permanently archived those 68 videos. Now they cannot be viewed, accessed or copied 9 by anyone. They are simply “lost” to Plaintiff Cabrera. Defendants never informed Plaintiff 10 whether someone had flagged any of these videos; who, if anyone, asserted a copyright interest in 11 any content of any individual video; what, if anything, in the video triggered the Defendants’ 12 conduct. Without such information, Plaintiff Cabrera could neither understand the Defendants’ 13 strike against any one video or attempt to resolve the strike for any video. 14 184. Defendants wrongly suspended the “Lisa Cabrera” channel for “hate speech in 15 connection with a video Plaintiff posted commenting on a report by NBC regarding the purchase of 16 illicit narcotics on the dark web. Plaintiff Cabrera promptly appealed the suspension. Defendants 17 rejected the appeal and refused to actually watch the video. It was only after Plaintiff Cabrera filed 18 a case against Defendants in small claims court that Defendants finally contacted Plaintiff Cabrera 19 and informed her that the suspension was erroneous. In all, “Lisa Cabrera” was suspended and 20 fully demonetized for six weeks due to Defendants’ error. 21 185. Following the lifting of the suspension for the “Lisa Cabrera” channel, the channel 22 remained demonetized, without the SuperChat application, and with 0 subscribers listed for the 23 channel. Defendants waited two additional weeks to restore monetization for individual videos, 24 SuperChat and the prior existing subscribers for the channel. In all, Plaintiff Cabrera lost 8 weeks 25 of revenue due to Defendants’ wrongful conduct and refusal to even look at the video content that 26 they had improperly flagged as “hate speech.” Defendants never offered to compensate her for the 27 lost revenue they caused. 28 1605366.1 Case No. -53CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 58 of 239 1 186. Defendants deputize YouTube users (those who are not members of disfavored 2 groups like those to which Plaintiffs and other persons similarly situated belong) to flag videos and 3 channels that purportedly violate Defendants’ Community Guidelines and TOS, and then 4 automatically remove, restrict, or demonetize flagged videos, and suspend or remove flagged 5 channels, without verifying that the videos or channels in question actually violate any published 6 standard. As a result of Defendants’ abdication to anonymous YouTubers of responsibility for 7 enforcing applicable standards, Plaintiffs and other persons similarly situated are subjected to 8 racist, misogynist, abusive trolls who target Plaintiffs’ videos and channels for adverse action by 9 Defendants. 10 187. In January of this year, Defendants again suspended all monetization for videos 11 posted to “Lisa Cabrera” following a threat made by YouTube user, Oxyman, during a Livestream 12 broadcast on his channel where he vowed, “I’m gonna make sure [Lisa Cabrera’s] channel gets 13 demonetized.” Plaintiff Cabrera is informed and believes that Oxyman flagged her channel 14 purportedly for violating Defendants’ Community Guidelines or TOS. Without taking any steps to 15 verify the flag or reported violation, Defendants then demonetized the “Lisa Cabrera” channel in 16 January of this year without any prior notification or explanation given to Plaintiff. 17 188. Thereafter, Plaintiff Cabrera promptly appealed the Defendants’ action. Defendants 18 informed her that she could reapply for access to monetization only after waiting 30 days. 19 189. After 60 days, Defendants restored monetization for the “Lisa Cabrera” channel 20 videos without any explanation as to why they had demonetized the channel to begin with. 21 Defendants never offered to compensate her for the lost revenue they caused by blindly assuming 22 the validity of Oxyman’s flag on the “Lisa Cabrera” channel. 23 190. To compound the financial injury to Plaintiff Cabrera, during this same period, 24 Defendants were running advertisements for the World Health Organization regarding Covid-19 25 prevention, and receiving advertising revenue at the same time that “Lisa Cabrera” was completely 26 demonetized. 27 191. Plaintiff Cabrera has also been the subject of improper posts by YouTube creator, 28 Michael Anderson, a known white supremacist. Michael Anderson posted a false video which had 1605366.1 Case No. -54CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 59 of 239 1 as a subject Plaintiff Cabrera and disparaged her personally. Mr. Anderson also posted Plaintiff’s 2 name and residential address in the comments section of his video. After recording an image of the 3 video displaying Lisa Cabrera’s name and address in the comments section; Mr. Anderson then 4 removed the video and reposted it without Lisa Cabrera’s address. 5 192. Following Mr. Anderson’s posting of the video and Plaintiff Cabrera’s residential 6 address, numerous additional copies of the video with the address in the comments section 7 appeared on multiple additional YouTube channels. 8 193. Plaintiff Cabrera used Defendants’ reporting tool, which sent links to the video to 9 Defendants. Defendants never responded to Plaintiff. Approximately fifty of the subscribers to the 10 “Lisa Cabrera” channel informed Plaintiff that they too had reported links to the video to 11 Defendants using the reporting tool. Defendants took no apparent steps to remove the disparaging 12 video featuring Plaintiff Cabrera’s name and false information regarding her, despite the fact that 13 the video clearly violated Defendants’ Community Guidelines and TOS, while ignoring dozens of 14 reports with links flagging the Michael Anderson video. 15 194. On another occasion, Michael Anderson made and posted another video which had 16 Plaintiff Cabrera as the subject, and “Lisa Cabrera” in the video’s title. This video featured an 17 image of Mr. Anderson in a car brandishing a revolver and talking about Plaintiff Cabrera. Again, 18 Plaintiff Cabrera used Defendants’ reporting tool and sent to Defendants a link to the video which 19 communicated a clear threat of violence by Mr. Anderson against Plaintiff Cabrera. Again multiple 20 subscribers to “Lisa Cabrera” communicated to Plaintiff that they too had flagged the video using 21 Defendants’ reporting tool. And again, Defendants did absolutely nothing to remove the video, or 22 to suspend or remove Michael Anderson’s channel for violating Defendants’ Community 23 Guidelines or TOS. 24 195. As a direct and proximate result of Defendants’ blatant and overt racial 25 discrimination and wrongful conduct, “Lisa Cabrera” has not grown in subscriber numbers, viewer 26 numbers or view times as the channel would have otherwise grown absent Defendants’ conduct. 27 Plaintiff Cabrera has been subjected to public disparagement, racist and misogynist abuse, public 28 posting of her private contact information and overt threats of physical violence – all of which has 1605366.1 Case No. -55CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 60 of 239 1 occurred with the tacit, if not overt, approval of Defendants who have repeatedly refused to enforce 2 their own Community Guidelines and TOS. Plaintiff Cabrera has suffered lost revenue directly due 3 to Defendants’ racist profiling, A.I., algorithms and other filtering tools, while her channel was 4 demonetized, while her channel was suspended, while Defendants have held her 68 videos in 5 “archive,” and Defendants continue to misapply “Restricted Mode” and limited monetization to 6 individual videos she has posted. 7 3. 8 196. Catherine Jones Plaintiff Catherine Jones (“Plaintiff Jones”) is an African American woman residing 9 in the State of Vermont who is the creator and owner of “Cooking with Carmen Caboom,” a 10 YouTube cooking channel for African Americans, and “Carmen Caboom,” and “Carmen Caboom 11 Reloaded,” two YouTube channels dedicated to developing and posting both parodies and serious 12 videos which discuss and present information regarding issues and current events which are 13 important to the African American community. 14 197. Plaintiff Jones created the “Carmen Caboom” channel in 2010, a backup “Carmen 15 Caboom” channel in 2014, the “Cooking with Carmen Caboom” channel in 2015 and the “Carmen 16 Caboom Reloaded,” channel in 2018. Defendants improperly removed the original “Carmen 17 Caboom” channel for purported nudity when no video posted to the channel included any nudity. 18 198. Plaintiff Jones is also a YouTube partner. Since creation, Plaintiff Jones” 2014 19 “Carmen Caboom” channel has posted many videos, several of which Defendants improperly 20 removed as hate speech, the remaining videos have garnered approximately 500 -1,200 views per 21 video overall which have generated approximately $500 per year. 22 4. 23 199. Denotra Nicole Lewis Plaintiff Lewis has been a registered YouTube user since 2006 and has posted her 24 own videos on her YouTube channel, “Nicole’s View” since 2016. When she registered “Nicole’s 25 View,” Plaintiff Lewis answered Defendants’ online questionnaire and self-identified as African 26 American or Black. Had Defendants not requested that she provide personal information about 27 herself for her profile, Plaintiff Lewis would not have done so. When she provided this 28 information, she had no idea that Defendants would use information about her race to generate 1605366.1 Case No. -56CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 61 of 239 1 metadata about her, the videos she watched, and the videos she posted or that Defendants would 2 insert, embed or associate such metadata with videos she posted, with her subscribers or with her 3 viewers, much less that Defendants would do so to sell advertising based on race, identity or 4 viewpoint; or that Defendants would filter, censor or restrict her videos based on information 5 regarding her race, identity or viewpoint. 6 200. Plaintiff Lewis creates and posts videos to inform and entertain the African 7 American community with respect to current events and issues of import to Black Americans. To 8 date, she has posted 748 videos to her channel, some of which Defendants have removed from the 9 platform, leaving only 731 of which remain available to be viewed by the public. While “Nicole’s 10 View” has generated in excess of 10.6 million views since 2016, she has generated approximately 11 $25,000 in all from those views. 12 201. Plaintiff Lewis is informed and believes that Defendants have gathered extensive 13 information in order to generate metadata based on that information, and then insert, embed, 14 append, or associate such metadata with videos posted on “Nicole’s View.” Defendants gathered 15 information regarding her race (Defendants know that Plaintiff Lewis is an African American 16 woman); that she makes and posts videos which have as a subject, relate to or discuss issues and 17 current events that are important to members of the African American community; her subscribers 18 either self-identify as members of the African American community or watch many videos posted 19 by other creators who have self-identified as members of the African American community; and 20 many of those who view her videos either self-identify as members of the African American 21 community or watch videos posted by other creators who have self-identified as members of the 22 African American community. 23 202. Plaintiff Lewis is informed and believes that Defendants have applied “Restricted 24 Mode” and have limited monetization for the videos she posted to “Nicole’s View” because 25 Defendants have a policy and practice of using A.I., algorithms, and other filtering tools to classify, 26 curate, censor, and sell advertisements for YouTube videos based metadata Defendants create from 27 information regarding the race, identity and viewpoint of creators, subscribers and viewers, rather 28 than the content of the videos. 1605366.1 Case No. -57CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 62 of 239 1 203. Defendants routinely limit viewer access by applying “Restricted Mode” and by 2 limiting monetization to most of the videos posted on the “Nicole’s View” channel, despite the fact 3 that the videos fully comply with all of Defendants’ Community Guidelines and TOS, and contain 4 no nudity, sexualized scenes or language, graphic depictions of sex or violence, drug abuse, or 5 alcohol consumption. Defendants have applied “Restricted Mode” to most of the videos posted, 6 and have allowed only limited monetization to some videos, without any explanation or rationale 7 other than to indicate that the “content identified is unsuitable for most advertisers.” Plaintiff 8 Lewis is informed and believes that the sole reason that Defendants find the content is “unsuitable 9 for most advertisers,” is because Defendants discriminate against Plaintiffs and other persons 10 similarly situated based on race, e.g., the content was created by an African American, relates to 11 issues and events of concern to the African American community, and is viewed by many members 12 of the African American community. 13 204. For certain periods over the past four years, Defendants have shadow banned certain 14 individual compliant videos posted by Plaintiff Lewis on “Nicole’s View.” During various periods 15 of time, those videos did not appear in YouTube searches using the terms “Nicole Lewis,” or 16 “Nicole’s View,” or using their individual video titles as search terms. 17 205. “Nicole’s View” video content consists roughly of 75% pre-recorded videos and 18 25% Livestream broadcasts. For Livestream broadcasts, she sometimes has as many as 1000 19 viewers participating. Plaintiff Lewis employs designated moderators to monitor, control and 20 censor viewer comments to ensure compliance with Defendants’ Community Guidelines and TOS, 21 promptly removing any non-compliant comments and blocking offending participants. 22 206. For the past two years, Defendants have used A.I., algorithms, and filtering tools to 23 restrict the reach of videos posted on “Nicole’s View,” resulting in stagnant subscriber and viewer 24 numbers. “Nicole’s View” is no longer growing. The channel’s analytics page from month to 25 month reflects only minor changes to the numbers of subscribers, viewers, and view times. To 26 avoid the impact of Defendant’ A.I., algorithms and filtering tools on Defendants’ metadata 27 generated from video titles and tags, Plaintiff Lewis intentionally self-censors: (a) she avoids using 28 controversial video titles; (b) she avoids using abbreviations like “BLM,” “KKK;” terms such as 1605366.1 Case No. -58CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 63 of 239 1 “Black,” “White,” “Racism,” “Boogaloo,” “White Supremacy,” “Racial Profiling,” “Police 2 Shootings,” “Police Brutality,” “Black Lives Matter;” names, such as those of individuals such as 3 those killed by law enforcement, “Bill Cosby,” “Louis Farrakhan;” names of organizations such as 4 “Ku Klux Klan,” “Nazi,” “Neo-Nazi,” “Aryan Brotherhood,” and euphemisms that are known and 5 particular to the African American Community; she intentionally misspells terms such as “Black,” 6 “White,” “Race,” “Racism,” and “Racial Profiling,” because Defendants routinely flags such terms. 7 207. Despite Plaintiff Lewis’ efforts to self-censor and avoid the reach of Defendants’ 8 A.I., algorithms, and filtering tools, most of the videos posted on “Nicole’s View” have only 9 limited monetization, if any. 10 208. On February 11, 2020, Plaintiff Lewis received an email from Defendants indicating 11 that “SuperChat was disabled,” purportedly because “Nicole’s View” was using the original 12 content of other YouTubers. However, after a week, it became apparent that Defendants had not 13 merely disabled SuperChat, but had completely demonetized the entire “Nicole’s View” channel. 14 Defendants did so without notice or explanation. Plaintiff Lewis promptly filed an appeal of the 15 decision to disable SuperChat and to demonetize the entire channel. 16 209. Mindful of the stringent standards which Defendants have always applied to the 17 channels of Plaintiffs and other persons similarly situated, Plaintiff Lewis has always followed 18 Defendants’ Community Guidelines, and TOS. Whenever she uses a news clip, she limits the clip 19 to several minutes and generates her own original commentary as video content to accompany the 20 clip. The originators of all news clips incorporated into videos posted by Plaintiff Lewis are always 21 accorded full proper and credit in the video so that there is no possibility of viewers confusing the 22 news clip with her original commentary or content. 23 210. Defendants did not respond to Plaintiff Lewis’ appeal. On or about June 7, 2020, 24 she suddenly noticed that Defendants had resumed placing advertisements on videos posted to 25 “Nicole’s View.” When she checked the channel’s analytics page, it reflected that her monetized 26 videos were again generating revenue and her Livestream broadcasts were generating donations. 27 Defendants have neither explained why the channel was fully demonetized for nearly two months, 28 1605366.1 Case No. -59CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 64 of 239 1 nor why it was remonetized; nor have they offered compensation for the revenue which the channel 2 lost during that period. 3 211. As a direct and proximate result of Defendants’ racial discrimination and wrongful 4 conduct, “Nicole’s View” has not grown in subscriber numbers, viewer numbers or view times and 5 it would have grown otherwise and Plaintiff Lewis has been deprived of significant revenue from 6 Defendants’ sale of advertising, SuperChat and Livestream donations over the life of her channel. 7 Plaintiff Lewis’ videos were all fully demonetized between February 11, 2020 and June 7, 2020, 8 during which period “Nicole’s View” generated no income whatsoever. 9 V. CLASS ALLEGATIONS 10 212. Plaintiffs bring this action on behalf of themselves and a putative class of similarly 11 situated persons who use or have used YouTube or any of the services that Defendants offer in 12 connection with YouTube and who come within the definition or classification of a protected class 13 of persons under 42 U.S.C. 1981 (the “Class”). 14 213. Each and every claim alleged in this case is also alleged on behalf of every member 15 of the Class. 16 214. The Class seeks both monetary damages, restitution, and/or other injunctive relief on 17 behalf of any persons who fall within the Class Definition: 18 All persons or entities in the United States who are or were: 19 (i) a person or entity defined or classified as a protected class or 20 person under 42 U.S.C. §1981; and 21 (ii) are members, users and or consumers of YouTube who uploaded, 22 posted, or viewed video content on YouTube subject to 23 Google/YouTube’s Terms of Service, Mission Statement, 24 Community Guidelines, and/or any other content-based filtering, 25 monetization, distribution, personal data use policies, advertising or 26 regulation and practices any other regulations or practices that are 27 related to the YouTube Platform on or after January 1, 2015 and 28 continuing through to June 16, 2020 (the “Class Period”). 1605366.1 Case No. -60CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 65 of 239 1 Excluded from the Class are Defendants and their employees, 2 affiliates, parents, subsidiaries, and co-conspirators, whether or not 3 named in this Complaint, and the United States government. 4 215. Class certification for the Class is authorized under Federal Rule of Civil Procedure 5 23 and applies to both claims for injunctive and equitable relief, including restitution, under Rule 6 23(b) (2) and for monetary damages under Rule 23(b)(3). 7 216. There are at least 42 million members of the Class. 8 217. The number of persons who fall within the definitions of the Class are so numerous 9 and geographically dispersed so as to make joinder of all members of the Class or Subclass in their 10 individual capacities impracticable, inefficient, and unmanageable, and without class wide relief, 11 each member of the Class would effectively be denied his, her, its, or their rights to prosecute and 12 obtain legal and equitable relief based on the claims and allegations averred in this Complaint. 13 218. There are questions of law and fact common to the Class that relate to and/or are 14 dispositive of the nature and allegations of unlawful conduct alleged in the Complaint, and the 15 nature, type and common pattern of injury and harm caused by that unlawful conduct and sustained 16 by the putative members of the Class and Subclass including, but not limited to: 17 a. Whether Defendants’ regulations and content-based restrictions violate the 18 free speech, antidiscrimination, consumer fraud and unfair competition, and contractual rights of 19 the members of the Class with respect to each cause of action averred by the Plaintiffs below. 20 b. Whether Defendants concealed, misrepresented or omitted to disclose 21 material policies and practices regarding the unlawful regulation of video content, advertising, 22 distribution, monetization, contractual obligations, and characteristics of the YouTube Platform to 23 the members of the Class; 24 c. Whether Defendants use or have used unlawful, discriminatory, 25 anticompetitive and fraudulent, deceptive, unfair, and/or bad faith filtering tools and practices, in 26 the code and operation of their machine based, algorithmic, or A.I. filtering tools, and/or other 27 practices and procedures to review, regulate, and restrict content, and/or regulate and restrict the 28 advertising, monetization, distribution, and property rights of the Class; 1605366.1 Case No. -61CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 66 of 239 1 d. Whether Defendants are or have engaged in discriminatory practices against 2 the members of the Class based on protected characteristics under 42 U.S.C § 1981 or the Unruh 3 Civil Rights Act; 4 e. Whether Defendants breached or are in breach of their form consumer 5 contracts and obligations to the Class; 6 f. Whether Defendants have or are engaged in unlawful, deceptive, unfair, or 7 anticompetitive practices that violate federal or California law, and harmed and injured the Class; 8 g. Whether the conduct of Defendants, as alleged in this Complaint, caused 9 injury to the business and property of Plaintiffs and the members of the Class; 10 h. Whether Defendants’ alleged regulations, practices, and conduct have caused 11 or threaten to cause irreparable harm to the speech of the Class so as to warrant the issuing of 12 temporary, preliminary and/or final injunctive relief and corresponding declaratory relief with 13 respect to the legal rights of the Class; 14 i. The scope, nature, substance, and enforcement of injunctive and equitable 15 relief sought by the Class; 16 j. Whether Defendants were unjustly enriched or obtained profits or ill-gotten 17 financial gains as a result of the unlawful, discriminatory, deceptive, unfair, or anticompetitive 18 practices perpetrated against the Class; 19 k. Whether Defendants breached or are in breach of their contractual 20 obligations, implied duty of good faith and fair dealing, and or other promises under the consumer 21 form contracts entered into with members of the Class during the Class Period; 22 l. Whether Defendants’ content-based regulations and filtering practices, on 23 their face and/or as applied, violate the free speech rights of Plaintiffs and the Class under 24 California or federal law; and 25 m. whether the Class is entitled to declaratory and other relief based on 26 Defendants’ assertion of immunity from liability under the Communications Decency Act, 15 27 U.S.C. § 230 (c) (the “CDA”), with respect to any of the claims or allegations asserted by Plaintiffs 28 and the Class in this Lawsuit. 1605366.1 Case No. -62CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 67 of 239 1 219. Each of individual named Plaintiffs is a person protected under 42 U.S.C. § 1981, 2 and a member of the Class. 3 220. The claims of Plaintiffs are typical of and identical to those of the Class. 4 221. Plaintiffs will fairly and adequately protect the interests of the members of the Class. 5 222. Plaintiffs are represented by counsel who are competent and experienced in the 6 prosecution and defense of similar claims and litigation, including class actions filed, prosecuted, 7 defended, or litigated in under California and federal law, in California and federal courts, in 8 connection with claims and certification of consumer and civil rights classes composed of members 9 who reside in California and/or the United States. 10 223. The prosecution of separate actions by individual members of the Class would 11 create a risk of inconsistent or varying adjudications. 12 224. The questions of law and fact common to the members of the Class predominate 13 over any questions of law or fact affecting only individual members of the Class or Subclass, 14 including legal and factual issues relating to liability and the nature of the harm caused by 15 Defendants’ unlawful actions. 16 225. The questions of law and fact common to the members of the Class also 17 predominate over any questions of law or fact affecting only individual members of the Class 18 because all claims in this Lawsuit are governed under California or controlling federal law, 19 including legal and factual issues relating to liability and the nature of the harm caused by 20 Defendants’ unlawful actions. 21 226. A class action is superior to other available methods for the fair and efficient 22 adjudication of this controversy. Treatment as a class action will permit a large number of 23 similarly situated persons to adjudicate their common claims in a single forum simultaneously, 24 efficiently and without the duplication of effort and expense that numerous individual actions 25 would engender. 26 227. Certification of the Class is also superior to other available methods for the fair and 27 efficient adjudication of this controversy because and all claims in this Lawsuit must be brought 28 and venued in a court of competent jurisdiction located Santa Clara County. 1605366.1 Case No. -63CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 68 of 239 1 228. The Class are readily definable and are categories for which records should and do 2 exist in the files of Defendants. 3 229. The prosecution as a class action will also eliminate the possibility of repetitious 4 litigation. 5 230. Class treatment will also permit the adjudication of smaller claims by members of 6 the Class who otherwise could not afford to litigate or assert the claims asserted by Plaintiffs in this 7 Lawsuit. 8 VI. INDIVIDUAL CAUSES OF ACTION 9 FIRST CAUSE OF ACTION REQUEST FOR A DECLARATORY JUDGMENT THAT SECTION 230(c) IMMUNITY IS INAPPLICABLE TO DISCRIMINATION CLAIMS (On Behalf Of Each Plaintiff Individually And The Class) 231. Plaintiffs re-allege and incorporate herein by reference, as though set forth in full, 10 11 12 each of the allegations set forth in paragraphs 1 through 230 above. 13 A. Procedural Background Facts 14 232. The CDA provides “Protection for ‘Good Samaritan’ blocking and screening of 15 offensive material:” 16 (1) Treatment of publisher or speaker 17 No provider or user of an interactive computer service shall be treated as the publisher or 18 speaker of any information provided by another information content provider. 19 (2) Civil liability 20 No provider or user of an interactive computer service shall be held liable on account of — 21 (A) any action voluntarily taken in good faith to restrict access to or availability of material 22 that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively 23 violent, harassing, or otherwise objectionable, whether or not such material is 24 constitutionally protected; or (B) any action taken to enable or make available to 25 information content providers or others the technical means to restrict access to material 26 described in paragraph (1). 47 U.S.C. § 230(c). 27 28 1605366.1 Case No. -64CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 69 of 239 1 233. On November 19, 2019, the Honorable Brian C. Walsh, Judge of the Superior Court 2 of the County of Santa Clara (the “State Court”), ruled in Prager University v. Google LLC, Santa 3 Clara County Superior Court Case No. 19CV340667,that 47 U.S.C. § 230(c) “immunizes service 4 providers [such as Defendants] who endeavor to restrict access to material deemed objectionable,” 5 by employing filters to remove users’ content from their platforms based on the political, religious, 6 or other personal identity or viewpoint of the user rather than the actual online content posted by 7 the user on the platform. 2019 WL 8640569, at *7 (Cal. Super. Ct. Nov. 19, 2019). 8 234. Furthermore, the State Court ruled that, notwithstanding the express good faith 9 language in Section 230(c)(2)(A), the content filtering and restrictions that internet service 10 providers like Defendants engage in are not subject to any good faith, objective judicial review of 11 the underlying content, or the internet providers filtering or restriction practices, but reside within 12 and are left to the sole, unfettered discretion of the internet provider who acts to filter and restrict 13 content at its whim. 2019 WL 8640569, at *10-11. 14 235. In Prager, therefore, at least one state trial court has construed Section 230(c) as 15 granting Defendants absolute immunity for all content curation decisions, including decisions 16 based not on the actual on line material, but on the race, sex, or other identity and dismissing 17 plaintiffs’ claims without leave to amend despite detailed factual allegations, evidence, and party 18 admissions of identity and viewpoint based discrimination and animus in regulating and filtering 19 speech on YouTube). 2019 WL 8640569, at *10-12. 20 236. A true and correct copy of the November 19, 1919-Order issued by the Hon. Brian 21 Walsh, granting Defendants’ immunity and dismissing all of plaintiffs’ claims for relief without 22 leave to amend is attached as Exhibit B hereto. 23 237. On December 19, 2019, plaintiff timely filed a notice of appeal. The notice of 24 appeal rendered state court decision uncitable and of no precedential or legal value unless and until 25 the California appellate courts affirm the application of Section 230(c) to intentional discrimination 26 and the federal courts, which are the final authority on federal questions of law, concur in that 27 decision. 28 1605366.1 Case No. -65CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 70 of 239 1 238. On May 18, 2020, the United States Department of Justice intervened in the Divino 2 case and filed a brief defending the application of Section 230(c) to ISP’s who filter, review, 3 restrict, bock, or censor on line speech based on a user’s racial, sexual, or other identity or 4 viewpoint without regard to whether the online speech of the user violated the content based rules 5 of the internet site or the provisions of Section 230(c). A true and correct copy of the United States 6 Department of Justice’s Notice of Intervention (Dkt.# 46) and Memorandum of Law in Support 7 (Dkt.#47) are attached as Exhibit C. 8 239. On May 28, 2020 the President of The United States issued an Executive Order 9 repudiating both the State Court decisions in Prager and contradicting the United States’ position 10 that Section 230(c) applies or can be applied to an ISP who engages in intentional race , sex or 11 other identity or viewpoint based discrimination alleged in this Lawsuit and Divino. 12 240. In the May 28 Order, the President directed the U.S. Department of Justice (“DOJ”) 13 and other Article 2 agencies or departments to enforce the “policy of the United States” that 14 immunity law may not be applied or enforced with respect to any on line, publishing, filtering, 15 blocking, or censorship conduct undertaken by an Internet Service Provider (ISP) that was based in 16 any part on the user’s race, sex, or other personal identity or viewpoint. 17 241. The May 28 Executive Order states in pertinent part: 18 Section 2 Protections Against Online Censorship. 19 (a) It is the policy of the United States to foster clear ground rules promoting free and open 20 debate on the internet. Prominent among the ground rules governing that debate is the 21 immunity from liability created by section 230(c) of the Communications Decency Act 22 (section 230(c)). 47 U.S.C. 230(c). It is the policy of the United States that the scope of that 23 immunity should be clarified: the immunity should not extend beyond its text and purpose 24 to provide protection for those who purport to provide users a forum for free and open 25 speech, but in reality use their power over a vital means of communication to engage in 26 deceptive or pretextual actions stifling free and open debate by censoring certain 27 viewpoints. * * * * 28 1605366.1 Case No. -66CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 71 of 239 1 242. In particular, subparagraph (c)(2) expressly addresses protections from "civil 2 liability" and specifies that an interactive computer service provider may not be made liable "on 3 account of" its decision in "good faith" to restrict access to content that it considers to be "obscene, 4 lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable." It is the policy 5 of the United States to ensure that, to the maximum extent permissible under the law, this provision 6 is not distorted to provide liability protection for online platforms that -- far from acting in "good 7 faith" to remove objectionable content -- instead engage in deceptive or pretextual actions (often 8 contrary to their stated TOS) to stifle viewpoints with which they disagree. Section 230 was not 9 intended to allow a handful of companies to grow into titans controlling vital avenues for our 10 national discourse under the guise of promoting open forums for debate, and then to provide those 11 behemoths blanket immunity when they use their power to censor content and silence viewpoints 12 that they dislike. When an interactive computer service provider removes or restricts access to 13 content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial 14 conduct. It is the policy of the United States that such a provider should properly lose the limited 15 liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and 16 publisher that is not an online provider. 17 (b) To advance the policy described in subsection (a) of this section, all executive 18 departments and agencies should ensure that their application of section 230(c) 19 properly reflects the narrow purpose of the section and take all appropriate actions in 20 this regard. In addition, within 60 days of the date of this order, the Secretary of 21 Commerce (Secretary), in Case 5:19-cv-04749-VKD Document 57 Filed 06/01/20 22 Page 6 of 8 consultation with the Attorney General, and acting through the National 23 Telecommunications and Information Administration (NTIA), shall file a petition 24 for rulemaking with the Federal Communications Commission (FCC) requesting 25 that the FCC expeditiously propose regulations to clarify: 26 (i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in 27 particular to clarify and determine the circumstances under which a provider of an 28 interactive computer service that restricts access to content in a manner not 1605366.1 Case No. -67CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 72 of 239 1 specifically protected by subparagraph (c)(2)(A) may also not be able to claim 2 protection under subparagraph (c)(1), which merely states that a provider shall not 3 be treated as a publisher or speaker for making third-party content available and 4 does not address the provider's responsibility for its own editorial decisions; (ii) the 5 conditions under which an action restricting access to or availability of material is 6 not "taken in good faith" within the meaning of subparagraph (c)(2)(A) of section 7 230, particularly whether actions can be "taken in good faith" if they are: 8 (A) deceptive, pretextual, or inconsistent with a provider's terms of service; or (B) taken 9 after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity 10 to be heard; and (iii) any other proposed regulations that the NTIA concludes may be 11 appropriate to advance the policy described in subsection (a) of this section. (c) The 12 Department of Justice shall review the viewpoint-based speech restrictions imposed by each 13 online platform identified in the report described in subsection (b) of this section and assess 14 whether any online platforms are problematic vehicles for government speech due to 15 viewpoint discrimination, deception to consumers, or other bad practices. * * * * 16 Sec. 4. Federal Review of Unfair or Deceptive Acts or Practices. (a) It is the 17 policy of the United States that large online platforms, such as Twitter and 18 Facebook, as the critical means of promoting the free flow of speech and ideas 19 today, should not restrict protected speech. The Supreme Court has noted that social 20 media sites, as the modern public square, "can provide perhaps the most powerful 21 mechanisms available to a private citizen to make his or her voice heard." 22 Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). Communication 23 through these channels has become important for meaningful participation in 24 American democracy, including to petition elected leaders. These sites are 25 providing an important forum to the public for others to engage in free expression 26 and debate. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980). * 27 * *Sec. 5. State Review of Unfair or Deceptive Acts or Practices and Anti- 28 Discrimination Laws. 1605366.1 Case No. -68CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 73 of 239 1 (a) The Attorney General shall establish a working group regarding the potential 2 enforcement of State statutes that prohibit online platforms from engaging in unfair or 3 deceptive acts or practices. The working group shall also develop model legislation for 4 consideration by legislatures in States where existing statutes do not protect Americans 5 from such unfair and deceptive acts and practices. The working group shall invite State 6 Attorneys General for discussion and consultation, as appropriate and consistent with 7 applicable law. 8 (b) Complaints described in section 4(b) of this order will be shared with the working 9 group, consistent with applicable law. The working group shall also collect publicly 10 available information regarding the following: 11 (i) increased scrutiny of users based on the other users they choose to follow, or their 12 interactions with other users; 13 (ii) algorithms to suppress content or users based on indications of political alignment or 14 viewpoint; 15 (iii) differential policies allowing for otherwise impermissible behavior, when committed by 16 accounts associated with the Chinese Communist Party or other anti-democratic 17 associations or governments; 18 (iv) reliance on third-party entities, including contractors, media organizations, and 19 individuals, with indicia of bias to review content; and 20 (v) acts that limit the ability of users with particular viewpoints to earn money on the 21 platform compared with other users similarly situated. 22 A true and correct copy of the President’s Executive Order is attached as Exhibit D to this 23 Complaint. 24 243. In Divino, the “related” case to this Lawsuit, the LGBTQ+ plaintiffs asserted a claim 25 for a declaratory judgment under 28 U.S.C. § 2201, et seq. asking this Court to declare that the 26 immunity provision of Section 230(c) does not extend to intentional identity or viewpoint 27 discrimination conduct by an ISP and, if not so construed, the law is unconstitutional, both as 28 applied and on its face, under Denver Area and progeny. 1605366.1 Case No. -69CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 74 of 239 1 244. On June 2, 2020, this Court held a hearing in the Divino case on, among other 2 things, the extent to which Section 230(c) applies, if at all, to intentional identity or viewpoint 3 based discrimination by Defendants. 4 245. Defendants argued that Section 230(c)(1) immunizes them from identity and 5 viewpoint based discrimination because such discrimination is “publishing conduct” that Congress 6 enacted Section 230(c)(1) to protect. 7 246. Defendants contended that Section 230(c)(1) grants absolute immunity to an ISP for 8 “publishing conduct” that includes discriminating against user based on the person’s racial or 9 sexual identity to filter, review, or block the access of the online user or its content on a website 10 that is otherwise open to the general public. 11 247. Although Defendants conceded at the oral argument that immunity might not be 12 available in limited but unspecified “circumstances” involving race discrimination, Defendants 13 maintained that intentional and systematic discrimination used to profile, review, and block the 14 access and content of LGBTQ+ users was a traditional publishing function that comes within the 15 conduct that Congress intended to protect under Section 230(c)(1). 16 248. The LGBTQ+ plaintiffs in Divino argued that Section 230(c)(1) does not prevent the 17 enforcement of contractual promises and other preexisting legal relationships between an ISP and 18 user, including contractual based promises that Defendants may only filter, review and impose 19 access restrictions on users based on the content of the video under specific rules that apply equally 20 to all without reference or consideration of the user’s identity or viewpoint. 21 249. The breaching of these legally enforceable promises and obligations, express or 22 implied, in a contract and license agreements between a user and an the ISP, and the other 23 obligations and rights codified in the state or federal laws that regulate businesses that prohibit 24 discrimination based on identity are neither specific or unique to publishers or traditional editorial 25 function, and do not implicate liability for third party defamation or wrongs, but are legal 26 obligations that apply to all business under contract and other legal obligations imposed on any 27 business and its customer or consumer. 28 1605366.1 Case No. -70CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 75 of 239 1 250. The Divino plaintiffs also argued, as the Plaintiffs and all persons similarly situated 2 argue in this Lawsuit, that Section 230(c) applies only to the filtering, reviewing, restricting, or 3 blocking of on line “material” not to or based upon a person’s identity or viewpoint, because racial 4 profiling and identity or viewpoint censorship has nothing to do with and does not further the 5 express statutory purpose of protecting minors from “offensive material” on the internet. 6 251. The extension of Section 230(c)(1) beyond a limited immunity for defamation and 7 other liabilities that arise from the failure to block unlawful third party content also renders Section 8 230(c)(2) statutory limits prohibiting bad faith or discriminatory filtering and blocking of on line 9 appropriate content unenforceable, meaningless, and pure statutory surplussage. 10 252. Finally, as in Divino, the application of either Section 230(c)(1) or (2) to immunize 11 an ISP that uses identity or viewpoint discrimination to regulate on line speech is an 12 unconstitutional permissive speech regulation law violates the First Amendment under Denver 13 Area and progeny. 14 253. The use of Section 230(c) to censor users based on their race, identity, or viewpoint 15 is not viewpoint neutral, narrowly tailored to protect children from “offensive” material without 16 creating a risk of erroneous private veto over otherwise appropriate speech, and eviscerates the pre17 existing legal relationships, including the contractual and statutory obligations, and rights of the 18 parties that would otherwise be enforceable in a court of law. 19 254. The Court has taken the arguments under submission. 20 255. A true and correct copy of the transcript of the Section 230(c) arguments recorded at 21 the hearing in Divino is attached as Exhibit E to this complaint. 22 B. Justiciable Legal Controversies Currently Exist Regarding The Construction And Constitutionality Of 47 U.S.C. § 230(c). 256. At least four actual controversies now exist between the parties regarding the proper 23 24 construction, scope, application, and constitutionality of the CDA statutory immunity granted to 25 internet service providers given the unique allegations and claims asserted against Defendants in 26 this case. 27 28 1605366.1 Case No. -71CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 76 of 239 1 257. Each of the controversies arise from a dispute about the extent to which Section 2 230(c) immunizes an internet service provider that discriminates against users because of the user’s 3 race, personal identity or viewpoints, including any profiling or consideration of Plaintiffs’ race in 4 making access decisions on YouTube 5 1. 6 An Actual Controversy Exist As To Whether The Provisions Of Section 230(c) Immunize Defendants From Race, Personal Identity, or Viewpoint Discrimination In Filtering And Blocking On line Content And Access 7 258. A justiciable controversy exist as to whether Section 230(c)(1) or (2) grants 8 immunity to an ISP that breaches and express or implied contractual promises not to discriminate 9 against users based on a person’s identity, or viewpoint when reviewing, restricting, or denying 10 access to YouTube under license and use agreements between the user and the ISP. 11 2. 12 13 259. An Actual Controversy Exists As To Whether Section 230(c) Immunizes Defendants For Conduct That Violates A second justiciable controversy exists as to whether the provisions of Section 14 230(c)(1) or (2) permit Defendants to engage unlawful conduct that uses person’s race, identity, or 15 viewpoint to restrict on line material and access in contravention of established federal and state 16 laws prohibiting such discrimination in contract, 42 U.S.C. § 1981 and Unruh Civil Rights Act, 17 Cal. Civ. Code §§51, et seq., unlawful, deceptive or anticompetitive business practices, including 18 conduct prohibited under section 1124 of the Lanham Act and section 17200 of the California 19 Business and Professions Code, and discriminatory censorship in violation of the Liberty of Speech 20 Clause enshrined in Article 1, Section 2 of the California Constitution. 21 3. 22 23 260. The Provisions And/or Application Of Any Part Of Section 230(c) To Claims Arising Out Of Race, Identity, Or Viewpoint Discrimination Is Unconstitutional As a third justiciable controversy exists as to whether Section 230(c) is 24 unconstitutional because it violates the First Amendment and/or Equal Protection clause of the U.S. 25 Constitution on its face and/or as applied to this Lawsuit. 26 261. Construing any provision of the “Good Samaritan Immunity For Blocking On line 27 Material” under Section 230(c) as permitting an ISP to use a person’s race, identity, or viewpoint to 28 1605366.1 Case No. -72CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 77 of 239 1 filter, review, or block on line access or content is unconstitutional under the test governing the 2 constitutionality of permissive private party speech laws. 3 262. Section 230(c) (1) and (2) is congressional law that was enacted to permit a private 4 party to regulate on line speech. Consequently, under Denver Area and progeny, the law cannot be 5 applied in a manner that is NOT identity or viewpoint neutral, must be narrowly tailored and 6 applied to avoid the risk of erroneous private censorship, and may not be used to interfere or alter 7 the pre-existing legal relationships between the parties. 8 4. 9 10 263. The Executive Order Precludes The Government From Arguing Or Enforcing Section 230(c) To Claims Based On Intentional Identity Or Viewpoint Discrimination. A fourth justiciable controversy exists as to legal effect of the President’s Executive 11 Order on the application of Section 230(c) to on line content and access regulation based on a 12 user’s identity and viewpoint, as is set forth in this Lawsuit. 13 264. In the Order, the President declares that is the policy of the United States to ensure 14 that Section 230(c) must be applied in a manner that is viewpoint neutral and does not permit ISPs 15 to censor on line content or block on line user access based on the identity or viewpoint of the user. 16 If given full legal affect, the Executive Order mandates the obvious: Section 230(c) applies only to 17 filtering and blocking “offensive material,” not the persons who use the internet. 18 265. The Executive Order provides that its application does not create a substantive legal 19 right that did not exist before, or otherwise alter the parties’ relationships. But that language begs 20 the question as to what rights and relationships already exist under Section 230(c) in this Lawsuit. 21 The Executive Order directs the United States to enforce the law and promulgate regulations that 22 preclude what Defendants want to use its provisions for in this Lawsuit: to discriminate against 23 Plaintiffs based on their race, identity and viewpoints. 24 266. Consequently, the Executive Order also creates a conflict of interest for the 25 Department of Justice under Rule 5.1. The Order specifically instructs DOJ to take all steps, 26 including, but not limited to, promulgating regulations to ensure that Section 230(c) is not and will 27 never be used to permit identity or viewpoint discrimination in the regulation of on line content. 28 1605366.1 Case No. -73CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 78 of 239 1 267. At the same time, DOJ has intervened and formally taken the opposite position 2 before this Court regarding the application of Section 230(c) to the very identity and viewpoint 3 discrimination that the President has instructed DOJ to prohibit. That position effectively precludes 4 DOJ or any agency of the United States from promulgating and enforcing the very regulations and 5 other steps in the Order that preclude identity and viewpoint discrimination. 6 268. Furthermore, because of the conflicting positions taken by DOJ in Divino, the 7 United States may be judicially estopped from enforcing or giving any affect to the President’s 8 Executive Order. 9 10 C. Plaintiffs Served Rule 5.1 Notice On The U.S. Attorney General 269. In challenging the Constitutionality of the CDA, Plaintiffs must comply with 11 Federal Rule of Civil Procedure 5.1 which requires that “[A] party . . . promptly [] file a notice of 12 constitutional question stating the question and identifying the paper that raises,” where “a federal 13 statute is questioned and the parties do not include the United States, one of its agencies, or one of 14 its officers or employees in an official capacity.” Fed. R. Civ. P. 5.1. Under Rule 5.1 “statute” 15 means any congressional enactment that would qualify as an “Act of Congress.” 16 270. Rule 5.1 requires more than the court certification provided by 28 U.S.C. § 2403; 17 Rule 5.1 requires notice and certification to the United States Attorney General of any 18 constitutional challenge to a federal statute, not merely to challenges of laws “affecting the public 19 interest.” 28 U.S.C. § 2403. 20 271. The CDA constitutes a federal statute under Rule 5.1. 21 272. Plaintiffs have served the Rule 5.1 Notice on the United States Attorney General 22 stating that Plaintiffs are challenging the constitutionality of 47 U.S.C. § 230(c), identifying the 23 CDA, and attaching a copy of this Complaint, and a copy of Judge Walsh’s November 19, 24 2019Order. 25 273. Plaintiffs have served the Rule 5.1 Notice and attachments by certified mail and 26 have sent a copy of the Notice and attachments to the United States Attorney General by overnight 27 delivery service. 28 1605366.1 Case No. -74CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 79 of 239 1 274. 28 U.S.C. § 2403 also requires that the Court notify the United States Attorney 2 General of Plaintiffs’ First Cause of Action set forth in this Complaint: “In any action, suit or 3 proceeding in a court of the United States to which the United States or any agency, officer or 4 employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting 5 the public interest is drawn in question, the court shall certify such fact to the Attorney 6 General, and shall permit the United States to intervene for presentation of evidence, if evidence is 7 otherwise admissible in the case, and for argument on the question of constitutionality. The United 8 States shall, subject to the applicable provisions of law, have all the rights of a party and be subject 9 to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the 10 facts and law relating to the question of constitutionality.” 28 U.S.C. § 2403(a) (emphasis added). 11 275. Accordingly, Plaintiffs respectfully request that the Court certify to the United 12 States Attorney General of the United States that 48 U.S.C. § 230(c), a federal statute, has been 13 challenged by Plaintiffs on the grounds averred below. 14 276. At this time, United States has a potentially unwaivable conflict of interest under the 15 applicable law and ethics rules governing conflicts of interest and divided duty of loyalty. 16 277. In complying with the notice requirements under Rule 5.1, Plaintiffs are not waiving 17 but are expressly reserving their rights to assert that the United States has a conflict of interest that 18 may preclude intervention under Rule 5.1, and/or to seek other appropriate relief, including 19 disqualification, and oppose intervention, in this Lawsuit or any other proceeding that conflicts 20 with the policy of the United States that Section 230(c) does not permit or immunize identity or 21 viewpoint discrimination. 22 23 278. 24 25 alleged in paragraphs 1 through 277. 279. 26 27 SECOND CAUSE OF ACTION FOR BREACH OF CONTRACT (On Behalf Of Each Plaintiff Individually And The Class) Plaintiffs re-allege and incorporate by reference in whole or in part the allegations The TOS and agreement(s) between Defendants and Plaintiffs governing filtering, review and access to content and services on YouTube provide that the right and obligations under 28 1605366.1 Case No. -75CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 80 of 239 1 those agreements are governed and subject to California law, including federal law that California 2 is obligated to enforce under the supremacy clause of the U.S. Constitution. 3 280. The elements of a breach of contract under California law are: (1) existence of a 4 valid contract between Plaintiffs and Defendants; (2) Plaintiffs’ performance (or excuse for non5 performance) under the contract; (3) Defendants’ breach of the contract; and (4) proof of harm or 6 financial injury as a result of the breach. 7 281. Plaintiffs and Defendants have entered into agreement, including the TOS and 8 related agreement(s) that are enforceable contract(s) governed by and under California law; 9 282. Plaintiffs have performed their obligations under the TOS and/or other contract(s), 10 including complying with YouTube’s viewpoint neutral content based access rules and granting 11 Defendants a perpetual and irrevocable license to their video content and all personal data and 12 consumer information derived or used in connection with Plaintiffs’ content on or use of YouTube. 13 283. Defendants have breached their promises to provide Plaintiffs’ equal access to 14 YouTube and all related services that Defendants offer to other users, and are subject only to 15 content based rules that are viewpoint neutral and apply equally to all. Specifically, Defendants 16 have denied and interfered with Plaintiffs’ right of equal access to YouTube and its related services 17 by profiling and using Plaintiffs’ race, identity or viewpoints, not merely the material in the video 18 content, to review, filter and restrict Plaintiffs’ access to YouTube in a manner that is not permitted 19 by federal and California law. 20 284. As a direct and proximate result of Defendants’ breach, Plaintiffs have suffered 21 monetary damages and other financial harms and losses in excess of $500.00 per year plus other 22 lost revenues, the total amount of which will be determined at trial. 23 285. As a direct and proximate result of Defendants’ breach, Plaintiffs have also suffered 24 irreparable harm to their contractual based rights of free speech and expression provided for under 25 the express and implied provisions of the TOS and other contract(s). 26 27 28 1605366.1 Case No. -76CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 81 of 239 1 THIRD CAUSE OF ACTION FOR BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (On Behalf Of Each Plaintiff Individually And The Class) 2 3 286. 4 5 alleged in paragraphs 1 through 285. 287. 6 7 8 9 12 13 14 15 16 17 18 19 Cal.App.4th 784, 798 (2008) (quoting Carma Developers (Cal.), Inc. v. Marathon Dev. Cal., Inc., 2 Cal.4th 342, 371– 72 (1992)). 288. 22 23 24 25 26 agreement.” Waller v. Truck Ins. Exchange, Inc., 11 Cal.4th 1, 36 (1995). The covenant of good faith finds particular application in situations where one party is invested with a discretionary power affecting the rights of another. When a contract confers on one party a discretionary power affecting the rights of the other, a duty is imposed to exercise that discretion in good faith and in accordance with fair dealing” and such discretion “must be exercised in good faith.” Carma, 2 Cal.4th at 372; see also Perdue v. Crocker Nat’l Bank, 38 Cal.3d 913, 923 (1985) (““where a contract confers on one party a discretionary power affecting the rights of the other, a duty is imposed to exercise that discretion in good faith and in accordance with fair dealing”).) 289. Breach of the implied covenant occurs “[w]here the terms of a contract are literally complied with but one party to the contract deliberately countervenes the intention and spirit of the contract.” Hilton Hotels Corp. v. Butch Lewis Prod., Inc., 808 P.2d 919, 922–23 (Nev. 1991). “Establishing such a breach of the implied covenant depends upon the ‘nature and purposes of the underlying contract and the legitimate expectations of the parties arising from the contract.” Integrated Storage Consulting Servs., Inc. v. NetApp, Inc., No. 5:12-CV-06209-EJD, 2013 WL 3974537, at *7 (N.D. Cal. July 31, 2013). 290. 27 28 The covenant “is based on general contract law and the long-standing rule that neither party will do anything which will injure the right of the other to receive the benefits of the 20 21 Under California law, every contract “imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” McClain v. Octagon Plaza, LLC, 159 10 11 Plaintiffs re-allege and incorporate by reference in whole or in part the allegations Five factual elements are required to establish a breach of the covenant of good faith and fair dealing: (1) the parties entered into a contract; (2) the plaintiff fulfilled his obligations 1605366.1 Case No. -77CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 82 of 239 1 under the contract; (3) any conditions precedent to the defendant’s performance occurred; (4) the 2 defendant unfairly interfered with the plaintiff’s rights to receive the benefits of the contract; and 3 (5) the plaintiff was harmed by the defendant’s conduct. Judicial Council of California Civil Jury 4 Instruction 325. 5 291. Plaintiffs and Defendants have entered into contracts, including the TOS, in 6 connection with Plaintiffs’ use and access to YouTube and the related services Defendants offer 7 under those contracts. 8 292. Plaintiffs have fulfilled their obligations under the TOS and other agreement(s) and 9 fulfilled or performed the conditions precedent, if any, under those agreement(s), including 10 complying with YouTube’s viewpoint neutral content based access rules and granting Defendants 11 an irrevocable and perpetual license to their video content and any personal information and data 12 derived from Plaintiffs’ use or content on YouTube, and paying Defendants other consideration for 13 services and access. 14 293. Defendants unfairly interfered with Plaintiffs’ rights by profiling and using their 15 race, personal identity or viewpoint to deny them equal access to YouTube and its related services 16 based on conduct that that is prohibited by and not permitted under California or federal law. 17 294. As a direct and proximate result of Defendants’ breach, Plaintiffs have suffered 18 monetary damages and other financial harms and losses in excess of $500.00 per year plus other 19 lost revenues, including the monetary value of unlawfully acquired property and license rights to 20 Plaintiffs’ content and the personal data and information derived from Plaintiffs and their 21 subscribers and viewers, the total amount of which will be determined at trial. 22 295. As a direct and proximate result of Defendants’ breach, Plaintiffs have also suffered 23 irreparable harm to their contractual based speech rights and expression provided for subject to 24 only to viewpoint neutral content based rules as set forth in the express and implied provisions of 25 the TOS and other contract(s). 26 27 28 1605366.1 Case No. -78CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 83 of 239 1 FOURTH CAUSE OF ACTION FOR PROMISSORY ESTOPPEL (On Behalf Of Each Plaintiff Individually And The Class) 2 3 296. Plaintiffs re-allege and incorporate by reference in whole or in part the allegations 4 alleged in paragraphs 1 through 295. 5 297. “The elements of promissory estoppel are (1) a promise, (2) the promisor should 6 reasonably expect the promise to induce action or forbearance on the part of the promisee or a third 7 person, (3) the promise induces action or forbearance by the promise or a third person (which we 8 refer to as detrimental reliance), and (4) injustice can be avoided only by enforcement of the 9 promise. West v. JPMorgan Chase Bank, N.A., 214 Cal.App.4th 780, 803 (2013). 10 298. Defendants have made at least 5 promises to Plaintiffs and other similarly situated 11 users: 12 a. Defendants promise Plaintiffs equal access to YouTube subject only to 13 viewpoint neutral content-based rules that apply equally to all users; 14 b. Defendants promise not to discriminate against Plaintiffs based on their race, 15 sexual identity, commercial status or identity, or the personal viewpoints except as permitted under 16 California or controlling federal law; 17 c. Defendants promise to provide viewer and audience reach, advertising, 18 subscription, monetization, and content curation services to Plaintiffs and other users who comply 19 with YouTube’s viewpoint neutral content-based rules; 20 d. Defendants promise only to use, appropriate, or derive revenue from 21 Plaintiffs’ content and data, and that of their viewers and subscribers subject to Defendants’ 22 honoring and fulfilling their express and implied terms and obligations under the TOS and other 23 agreement(s); and 24 e. Defendants promise to operate YouTube as a public forum for freedom of 25 expression that is subject only to narrowly tailored, viewpoint neutral content based rules. 26 27 28 1605366.1 Case No. -79CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 84 of 239 1 299. Defendants made these promises with the reasonable expectation and intent of 2 inducing Plaintiffs to grant Defendants an irrevocable license rights and other valuable 3 consideration derived from Plaintiffs’ use of YouTube. 4 300. Defendants also made these promises with the intent of inducing Plaintiffs, as well 5 as their viewers, subscribers, and followers, to access and use YouTube so that Defendants can 6 monetize, advertise, and profit from user access and use of YouTube and the related services that 7 Defendants offer. 8 301. Defendants, through these promises, induced Plaintiffs to grant Defendants an 9 irrevocable license, rights and other valuable consideration derived from Plaintiffs’ use of 10 YouTube. 11 302. Defendants, through these promises, induced Plaintiffs, as well as their viewers, 12 subscribers, and followers, to access and use YouTube so that Defendants can monetize, advertise, 13 and profit from user access and use of YouTube and the related services that Defendants offer. 14 303. Enforcing Defendants’ promises will avoid injustices, including stopping overt, 15 intentional, and race and sex discrimination against Plaintiffs, prohibiting from misappropriating 16 Plaintiffs’ content and data, and prohibiting Defendants to become unjustly enriched and unfairly, 17 inequitably, and illegally obtain the benefits of promises that Defendants have failed to honor, 18 comply with, or enforce. 19 304. As a proximate result of Defendants’ failure to honor and fulfill each of their 20 promises, Plaintiffs have suffered financial and monetary losses, had their intellectual and other 21 property rights unjustly misappropriated by Defendants’ own personal financial and unjust gain, 22 and have suffered irreparable harm to speech and expression promised by Defendants, in an amount 23 to be determined at trial. 24 FIFTH CAUSE OF ACTION FOR DISCRIMINATION IN CONTRACT IN VIOLATION OF 42 U.S.C. § 1981 (On Behalf Of Each Plaintiff Individually And The Class) 25 26 305. Plaintiffs re-allege and incorporate by reference in whole or in part the allegations 27 alleged in paragraphs 1 through 304. 28 1605366.1 Case No. -80CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 85 of 239 1 306. Title 42, Section 1981 of the U.S. Code codifies the right of each individual member 2 of a protected racial classification to “have the same right in every State and Territory to make and 3 enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and 4 proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 5 1981(a). 6 307. The statute defines “make and enforce contracts” as including “the making, 7 performance, modification, and termination of contracts, and the enjoyment of all benefits, 8 privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b). The statutory 9 protections apply to both “nongovernmental discrimination” and “impairment under color of State 10 law.” Id. § 1981(c). 11 308. The elements of a claim for relief under 42 U.S.C. § 1981 are: (1) Plaintiff is a 12 member of a protected class; (2) impairment of a contractual relationship under which plaintiff has 13 rights; (3) defendant impaired that relationship on account of racial discrimination (such that, but 14 for race, plaintiff would not have suffered the loss of a legally protected right); and (4) plaintiff was 15 deprived of such services while similarly situated persons outside the protected class were not. See 16 Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020); Astre v. 17 McQuaid, 804 Fed. App’x 665, 666-67 (Mar. 25, 2020); Lindsey v. SLT Los Angeles, LLC, 447 18 F.3d 1138, 1145 (9th Cir. 2006). 19 309. Plaintiff are African Americans and are members of the protected class under 20 section 1981. 21 310. Plaintiffs entered into binding and legally enforceable contracts with Defendants 22 including the TOS and related agreement(s) under California and controlling federal law. 23 311. The contractual relationship between each Plaintiff and Defendants was impaired 24 with respect to the TOS and each and every one of the related agreement(s) in at least five ways: 25 a. Defendants’ TOS and, any other agreements, under which they claim the 26 right to exercise “unfettered” discretion to impose content, use or services access restrictions based, 27 in any way, on Plaintiffs’ racial identity or viewpoint, violates and impairs the TOS, license 28 agreements, and other service agreement(s) on its face; 1605366.1 Case No. -81CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 86 of 239 1 b. Defendants continue to breach the TOS and other agreement(s), by 2 exercising their contractual discretion to profile, filter, restrict, and block Plaintiffs’ content and 3 access to YouTube, based on Plaintiffs’ racial identity and viewpoint, in a manner that is not 4 permitted, but is expressly prohibited under California and federal law; 5 c. Defendants breached and continue to breach their express and implied 6 promises under the TOS and other related agreement(s) that, You Tube shall not profile, use, base, 7 or impose any restrictions on Plaintiffs’ content or access to YouTube based, in any way, on a 8 user’s racial identity or viewpoint, and only review, filter, and restrict Plaintiffs’ videos based on 9 on line video material that runs afoul of YouTube’s viewpoint neutral content based rules; 10 d. Defendants’ use of content filtering, review, restricting, and blocking tools 11 and procedures to profile and use Plaintiffs’ racial identity and viewpoint with respect to any 12 provision in the TOS or related agreements, impairs each and every one of Plaintiffs’ rights, 13 express or implied, that exist in the TOS or other related agreement(s) that Defendants entered into 14 with Plaintiffs; and 15 e. Defendants impaired their contractual relationship with each Plaintiff 16 because of Defendants’ intentional use of Plaintiffs’ racial identity or viewpoint to review, filter, 17 regulate, restrict, and block Plaintiffs’ videos and access to YouTube under the false pretext that the 18 material in the video was properly reviewed and found to violate one of YouTube’s content based 19 rules governing user content and access to the platform. 20 312. Defendants impaired their contractual relationship with each Plaintiff on account of 21 intentional racial discrimination. Despite their promises of neutrality and a diversity of viewpoints, 22 Defendants engage in a pattern and practice of intentional willful and malicious discrimination in 23 the provision of their services, including discriminating against and censoring of Plaintiffs’ speech, 24 based not upon the content of speech, but on their race. Through the acts complained of herein, 25 Defendants intentionally denied, and aided or incited in denying, Plaintiffs full and equal 26 accommodations, advantages, privileges, and services, by discriminating against them in 27 demonetizing Plaintiffs’ content and by placing their videos in “Restricted Mode.” But for their 28 1605366.1 Case No. -82CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 87 of 239 1 race, Plaintiffs would not have been subjected to Defendants’ filtering or the denial of their 2 contractual benefits under the Agreements. 3 313. While Defendants have impaired and denied, and continue to impair and deny, 4 Plaintiffs’ contractual benefits under the TOS and related agreement(s), similarly situated persons 5 who are not protected under the section 1981 protected class were not similarly treated, including 6 persons affiliated with or working for Defendants and/or their preferred users. Such persons are 7 not being racially profiled and are not subject to the same content or access filtering, restrictions, or 8 blocking despite material in their videos that violates YouTube’s content based rules. 9 314. As a direct and proximate result of Defendants’ unlawful discriminatory actions, 10 Plaintiffs suffered, and continue to suffer, irreparable injury in fact, including, but not limited to: 11 lower viewership, lost advertising opportunities otherwise available to other nonprofits, decreased 12 ad revenue, and reputational damage, for which there exists no adequate remedy at law. 13 SIXTH CAUSE OF ACTION FOR UNLAWFUL DISCRIMINATION IN VIOLATION OF THE UNRUH CIVIL RIGHTS ACT (On Behalf Of Each Plaintiff Individually And The Class) 14 15 315. 16 17 alleged in paragraphs 1 through 314. 316. 18 19 20 21 22 23 26 equal accommodations or services to Plaintiffs; (2) that a motivating reason for Defendants’ conduct was Plaintiffs’ race or national origin; (3) that Plaintiffs were harmed and (4) that Defendants’ conduct was a substantial factor in causing that harm. Nkwuo v. Metro PCS, Inc., No. 5:14–cv–05027–PSG, 2015 WL 4999978, at *2 (N.D. Cal. Aug. 21, 2015). 317. Defendants Google and YouTube host business establishment(s) that solicit, induce, provide, and grant members of the public like Plaintiffs the right to access and use YouTube and its services, subject only to viewpoint neutral content based rules that apply equally to all.. 318. 27 28 The elements of a claim for discrimination under the Unruh Civil Rights Act, California Civil Code §§ 51, et seq. are: (1) Defendants denied, aided or incited a denial of full and 24 25 Plaintiffs re-allege and incorporate by reference in whole or in part the allegations Defendants grant members of the public like Plaintiffs the right to use and access YouTube for commercial reasons and consideration, including obtaining a perpetual and 1605366.1 Case No. -83CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 88 of 239 1 irrevocable license to Plaintiffs’ and the other public users’ content and data, including the right to 2 appropriate that content and data for sale and other forms of monetization including advertising, 3 data information sales and services, and other revenue and profit stream on YouTube through 4 contract and business transactions including the TOs and related agreement(s). 5 319. A substantial motivating reason for Defendants’ conduct is Defendants’ use of the 6 racial identity, viewpoints, and other protected racial classifications under the law of Plaintiffs and 7 other persons similarly situated to impose restrictions on their video content. 8 320. Defendants’ conduct is the result of arbitrary, capricious, invidious, and pretext- 9 based discrimination against Plaintiffs’ political and religious identity and race, color and/or 10 national origin and viewpoints. 11 321. Defendants’ use of Plaintiffs’ racial or other identities to restrict their right to equal 12 access to YouTube is unlawful and fails to further any lawful, legitimate business interest, 13 including ensuring compliance with YouTube’s content based rules or protecting younger and 14 “sensitive” audiences. 15 322. Defendants have censored and treated, and continue to censor and treat, Plaintiffs 16 and their videos differently from Defendants’ own or preferred content, solely because of 17 discriminatory animus towards Plaintiffs’ identities and views. 18 323. Specifically, Defendants use AI, Algorithm, and other filtering machines, 19 procedures, and systems to knowingly and intentionally engage in and effectuate a pattern and 20 practice of discrimination for profit by reviewing, filtering, restricting, and blocking Plaintiffs’ 21 content and access to YouTube based on Plaintiffs’ racial or other identity or viewpoints and other 22 traits or viewpoint that discriminate against Plaintiffs based on classifications that are protected 23 under the Unruh Act, namely race, color and/or national origin. 24 324. Defendants’ wrongful actions were knowing and intentional, taken with oppression, 25 fraud and/or malice, and effectuated through algorithms, machines, and human reviews that use 26 Plaintiffs’ racial identity and viewpoints, or other protected classifications to interfere with and 27 block Plaintiffs’ content and access on YouTube under the pretextual promise that everyone has 28 1605366.1 Case No. -84CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 89 of 239 1 equal access to YouTube subject only to viewpoint t neutral content based rules that apply equally 2 to all. 3 325. As a direct and proximate result of Defendants’ unlawful discriminatory actions, 4 Plaintiffs suffered, and continue to suffer, irreparable injury in fact, for which there is no complete 5 adequate remedy at law, including, but not limited harm and injury to contract based speech rights, 6 and lost financial and business opportunities including viewership, advertising, monetization, and 7 other opportunities and rights to gain popularity and revenues that are otherwise available to other 8 users who are not profiled and regulated on YouTube based on their racial identity or viewpoints. 9 326. As a direct and proximate result of Defendants’ discriminatory acts and practices, 10 Plaintiffs have also suffered monetary damages in an amount to be determined at trial. 11 327. Defendants’ violations of the Unruh Act further entitle Plaintiffs to recover statutory 12 damages of up to three times the amount of actual damages in an amount to be proven at trial, or a 13 minimum of $4,000 per violation. 14 SEVENTH CAUSE OF ACTION FOR FALSE ADVERTISING IN VIOLATION OF THE LANHAM ACT, U.S.C. § 1125, et seq. (On Behalf Of Each Plaintiff Individually And The Class) 15 16 328. 17 18 alleged in paragraphs 1 through 327. 329. 19 20 21 22 23 24 25 26 The elements of a false advertising claim under the Lanham Act, 47 U.S.C. § 1125, et seq., are: (1) false statement of fact by defendant in a commercial advertisement about its own or another’s product; (2) the false statement actually deceived or has the tendency to deceive a substantial segment of the YouTube consumers or users; (3) the false statement is material, in that it is likely to influence the purchasing decision by a YouTube user; (4) the false statement entered interstate commerce; and (5) Plaintiffs have been, and are likely, to be injured as a result of the false statement. Wells Fargo & Co. v. ABD Ins. & Fin. Servs., Inc., 758 F.3d 1069, 1071 (9th Cir. 2014). 330. 27 28 Plaintiffs re-allege and incorporate by reference in whole or in part the allegations Defendants’ statements that Plaintiffs or their videos are “Restricted” is false because only videos that are reviewed and found to contain material that violates Plaintiffs’ content 1605366.1 Case No. -85CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 90 of 239 1 based rules, including nudity, vulgarity, violence, hate, shocking or sexually explicit material are 2 can be “Restricted.” Plaintiffs’ videos do not contain such “Restricted Material.” 3 331. Defendants’ statements are further false because Defendants used Plaintiffs’ race, 4 identity or viewpoint to Restrict the video rather than any material that based on a review of the 5 video violated YouTube’s rules. 6 332. Defendants’ false statements are also “commercial advertising” because the 7 statements were made to penetrate the market of YouTube users and have the effect of limiting or 8 steering viewers away from Plaintiffs’ channels and videos, to video content, channels, or creators 9 who are sponsored by Defendants and for which or whom Defendants compete with Plaintiffs for 10 viewers, advertising, monetization, and other revenue streams on YouTube. 11 333. Defendants’ false statements are likely to deceive users and advertisers on YouTube 12 because the expressly and implicitly insinuate that there is something inappropriate, offensive, 13 improper, or prohibited under YouTube’s viewpoint neutral rules. 14 334. Defendants’ false statements are also material. They likely influence and affect a 15 user’s and/or advertiser’s viewing/purchasing decisions. Users and/or advertisers are likely 16 deceived that the video contains offensive material that violates YouTube’s rules after Defendants 17 reviewed the video for content violations under YouTube’s Community Guidelines, Age 18 Restrictions, and “Restricted Mode” prohibitions, when the basis for the restriction was Plaintiffs’ 19 race, identity or viewpoint and was not undertaken in compliance with YouTube’s rules. 20 335. Defendants’ false statements not only influence but categorically control every user 21 or advertiser’s purchasing decisions because the statement results blocking of a user or advertisers 22 access to the video on YouTube and precludes the user or advertiser from ever accessing, viewing 23 and purchasing the video or purchasing and placing and ad for the video, or otherwise making any 24 purchasing decision contrary to that of Defendants. 25 336. Defendants’ false statements entered internet commerce and reached millions of 26 viewers who reside in all 50 States, U.S. Territories, and other users across the world. 27 337. Plaintiffs are and are likely to continue to be financially harmed by the false 28 statements, including losing substantial amounts revenues for viewer CPMs, advertising, 1605366.1 Case No. -86CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 91 of 239 1 monetization, and other user or advertiser revenue streams on YouTube in an amount to be 2 determined at trial. 3 EIGHTH CAUSE OF ACTION FOR UNLAWFUL, DECEPTIVE, AND UNFAIR BUSINESS PRACTICES CAL. BUS. & PROFS. CODE §17200, et seq. (On Behalf Of Each Plaintiff Individually And The Class) 4 5 338. 6 7 alleged in paragraphs 1 through 337. 339. 8 9 12 13 340. 16 17 18 19 20 21 22 23 under section 17200 because those practices, acts, and conduct violates 42 U.S.C. § 1981 and the Unruh Civil Rights Act. 341. 26 27 28 Defendants’ profiling, filtering, restricting, and blocking Plaintiffs’ content and access on YouTube based on Plaintiffs’ race, identity, or viewpoint are also deceptive business acts or practices as defined under section 17200 because they are based on intentionally false promises by Defendants to Plaintiffs, and other users, and advertisers that YouTube only restricts or blocks content or access based on violations of YouTube’s content based rules that apply equally to all. In fact, Defendants have knowingly and intentionally use Plaintiffs’ racial or other identity or viewpoint to block content and access to YouTube under the false pretext that the video was reviewed like all videos on YouTube, including those sponsored by Defendants, and that the review found that Plaintiffs’ videos actually contain material that violates YouTube’s viewpoint neutral rules. 342. 24 25 Defendants’ profiling, filtering, restricting, and blocking Plaintiffs’ content and access on YouTube based on Plaintiffs’ race, identity, or viewpoint is an unlawful business practice 14 15 Defendants have committed acts of unfair competition, as defined by California Business and Professions Code § 17200, by engaging in the practices described above. 10 11 Plaintiffs re-allege and incorporate by reference in whole or in part the allegations Defendants’ profiling, filtering, restricting, and blocking Plaintiffs’ content and access on YouTube based on Plaintiffs’ race, identity, or viewpoint are also unfair business acts or practices as defined under section 17200 because Defendants operate as both content review curators and content sponsors on YouTube. This conflict is on full display when Defendants use their “unfettered” authority to restrict or block Plaintiffs’ videos based on their race, identity, or 1605366.1 Case No. -87CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 92 of 239 1 viewpoint but permit their own content or that of their preferred or sponsored content creators or 2 channels to go without review, restriction, or blocking even where the content violates YouTube’s 3 content based rules. 4 343. This includes inserting metadata and other signals into Plaintiffs’ videos that permit 5 Defendants to profile and restrict or block content without reviewing the video and results in 6 restrictions and blocking of Plaintiffs’ content based on Defendants’ embedding and creating the 7 metadata, signals, or other racial profiling content that results in the restriction or blocking. 8 344. There is no utility to the public for Defendants’ actions, and the unlawful, deceptive 9 and unfair practices and conduct do not further a legitimate interest in protecting users from 10 offensive content. 11 345. As a direct and proximate result of Defendants’ unlawful, deceptive, and unfair 12 practices, conduct, and acts, Plaintiffs have suffered, and continue to suffer, immediate and 13 irreparable injury in fact, including lost income, reduced viewership, and damage to brand, 14 reputation, and goodwill, for which there exists no adequate remedy at law. 15 346. Furthermore, as a result of such practices, conduct, and acts, Defendants 16 misappropriate and are unjustly enriched by taking consideration in the form of property rights to 17 content and data, and revenue that belongs to Plaintiffs in an amount that exceeds $5 million. 18 347. Plaintiffs are therefore entitled to restitution of that and other amounts, as well as 19 other equitable relief to be determined at trial. 20 348. At all times Defendants’ wrongful actions were taken with oppression, fraud and/or 21 malice. Indeed, at least dating back to 2017, Defendants have admitted and known that they were 22 targeting users like Plaintiffs, based on their race, identity, or viewpoint, in violation of their 23 promises and rules not to discriminate based on race, or any other identity or viewpoint. 24 25 NINTH CAUSE OF ACTION FOR VIOLATION OF CALIFORNIA CONSTITUTION ARTICLE I, SECTION 2 (On Behalf Of Each Plaintiff Individually And The Class) 26 349. Plaintiffs re-allege and incorporate herein by reference, as though set forth in full, 27 each of the allegations set forth in paragraphs 1 through 348 above. 28 1605366.1 Case No. -88CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 93 of 239 1 350. Article I, section 2 of the California Constitution enshrines the right to liberty of 2 speech: “Every person may freely speak, write and publish his or her sentiments on all subjects, 3 being responsible for the abuse of this right.” Cal. Const., art. I, § 2, subd. (a). 4 351. The Liberty of Speech Clause is broader and more protective than the federal First 5 Amendment. Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal.4th 352, 366-367 6 (2000). 7 352. The Liberty of Speech provision “grants broader rights to free expression than does 8 the First Amendment to the United States Constitution” because it enshrines the fundamental “idea 9 that private property can constitute a public forum for free speech if it is open to the public in a 10 manner similar to that of public streets and sidewalks.” Fashion Valley Mall, LLC v. Nat’l Labor 11 Relations Bd., 42 Cal.4th 850, 857-58 (2007). 12 353. Under the California Constitution, a person’s Liberty of Speech enjoys full 13 constitutional protection when it occurs on any private property that is used or designated by the 14 owner or operator as a place similar to areas that have already been determined to be public forums. 15 That includes privately owned internet sites. 16 354. Consequently, the California Constitution protects the right to free speech on private 17 property even in cases when the federal Constitution may not. 18 355. The threshold element of a claim under the Liberty of Speech Clause is that the 19 defendant property owner has so opened up his or her property for public use as to make it the 20 functional equivalent of a traditional public forum based on three factors: (1) the nature, purpose, 21 and primary use of the property; (2) the extent and nature of the public invitation to use the 22 property; and (3) the relationship between the ideas sought to be presented and the purpose of the 23 property’s occupants.” Albertson’s, Inc. v. Young, 107 Cal. App. 4th 106, 119 (2003); 73 Op. Cal. 24 Atty. Gen. 213, 222– 223 (1990). 25 356. Defendants operate YouTube for the express purpose of inviting the public to use 26 the platform as a for profit “public forum” where the public is invited to engage in “freedom of 27 expression,” where everyone’s voice may be heard, subject only to viewpoint neutral rules that 28 apply equally to all and Defendants’ right to monetize and profit from the expression, speech, or 1605366.1 Case No. -89CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 94 of 239 1 material that appears on YouTube through the property based license rights that the user must grant 2 Defendants as the price of admission to the forum. 3 357. According to Defendants, the purpose, use, nature, invitation to use the forum, and 4 relationship between that purpose and invitation, on the one hand, and the ideas sought to be 5 presented the public, on the other, is that Defendants offer public internet service “that enables 6 more than a billion users around the world to upload” videos, where users are urged to “Broadcast 7 Yourself,” “promote yourself” or “do the broadcasting yourself.” 8 358. Under the TOS, Defendants also represent that YouTube is open to everyone for 9 free expression and communication, regardless of race, identity, or viewpoint as long as the video 10 material complies with viewpoint neutral rules that apply equally to all. 11 359. Based on these and other representations, Defendants have induced or attracted 2.3 12 billion people to use YouTube and Defendants currently use the YouTube “public forum” control 13 and regulate 95% of the global public video content that has currently or has ever existed in the 14 world. 15 360. Under California law, Defendants’ regulation of speech on the YouTube platform is 16 state action because Defendants perform an exclusively and traditionally public function: the 17 regulation of 95% of the world’s public video based speech content by designating and operating 18 YouTube as a viewpoint neutral public forum for freedom of expression under California law. 19 361. Accordingly, Defendants are prohibited from arbitrarily, unreasonably, or 20 discriminatorily excluding, regulating, or restricting videos or user access to services on YouTube 21 on the basis of viewpoint or identity of the speaker. And any such exclusions, restrictions, or 22 regulations must comply with protections afforded Plaintiffs’ free speech and expression under the 23 Liberty of Speech Clause, and the established jurisprudence that such protections apply to private 24 parties who use their property for purposes similar to the use of a government owned and operated 25 public forum. 26 362. Plaintiffs’ video content and access services constitute expressive speech and 27 activity that is protected by Article I, section 2 of the California Constitution. 28 1605366.1 Case No. -90CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 95 of 239 1 363. Defendants have filtered, restricted, blocked or interfered with Plaintiffs’ rights to 2 access, use, and express themselves on YouTube. 3 364. Defendants’ filtering, restricting, and blocking on Plaintiffs’ speech and expressive 4 conduct on YouTube violates Plaintiffs’ Liberty of Speech because they are not based on the 5 platform’s viewpoint neutral rules governing what content is and is not permissible, but on the race, 6 identity or viewpoint of Plaintiffs. 7 365. Defendants’ censorship and other speech regulation conduct harms and violates 8 Plaintiffs’ Liberty of Speech rights on YouTube in direct contravention of the procedural and 9 substantive rules that Defendants created, published, and use to regulate that speech on YouTube. 10 366. Furthermore Defendants’ rules, both as applied and on their face, are subjective, 11 vague, and overbroad criteria and proscription that Defendants use with unfettered and unbridled 12 discretion to censor speech for any reason, or no reason at all, no matter how arbitrary or capricious 13 in further violation of Plaintiffs’ Liberty of Speech rights. 14 367. Defendants also maliciously use and apply the rules as a pretext to censor and 15 restrict Plaintiffs’ speech for unlawful purposes including race and identity discrimination against 16 protected classes of users and to gain a competitive advantage over Plaintiffs and other users who 17 Defendants compete with in YouTube. 18 368. Defendants’ conduct, including the application of purportedly viewpoint neutral 19 rules, are arbitrary and capricious, and unlawfully restrains and harms Plaintiffs based upon racial, 20 political, religious, or other identity or viewpoint profiling the speaker, rather than the actual 21 content of the speakers words or expression. Defendants’ actions, therefore, also violate Plaintiffs’ 22 right to free association and assembly under the Liberty of Speech Clause. 23 369. Defendants’ actions violate Plaintiffs’ right to free association and assembly because 24 , by blocking viewers’ access to videos and comments based on the identity or viewpoint of the 25 speakers or their opinions or other content featured in their videos that do not violate YouTube’s 26 viewpoint neutral content based rules 27 370. No compelling, significant, or legitimate reason justifies any or all of Defendants’ 28 actions, including the purported interest claimed by Defendants for the need to protect minors or 1605366.1 Case No. -91CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 96 of 239 1 sensitive audiences from offensive content because Plaintiffs’ content is not “offensive” or 2 otherwise violates Defendants’ purported viewpoint neutral rules. 3 371. And even if such interests did exist to justify Defendants’ restriction and 4 demonetization rules in theory, the conduct and restrictions imposed on Plaintiffs’ speech are 5 unconstitutional because they are not narrowly or reasonably tailored to further such interests, but 6 sweep within their ambit speech and expression that complies with the rules that Defendants use to 7 purportedly protect minors and sensitive audiences and are applied by Defendants with unfettered 8 power to censor speech based in race, identity, or viewpoint or for any other discriminatory or 9 unlawful reason or no reason at all. 10 372. Given Defendants’ monopolistic control over search results, on line advertising, 11 public video content, and the myriad of other information services that Defendants unilaterally 12 control, Plaintiffs have no alternative affording it a reasonable opportunity to reach their full 13 intended audience. 14 373. Defendants’ discriminatory policies and application of those policies are not 15 viewpoint-neutral, are unreasonable in time, place, and manner, and are unreasonable in relation to 16 the nature, purpose, and use of the forum, but are unreasonable prior restraints on Plaintiffs’ 17 protected political speech, motivated by impermissible discrimination against Plaintiffs’ racial 18 identity and viewpoint. 19 374. Defendants’ intentional and wrongful actions were taken with oppression, fraud, 20 malice and/or are arbitrary and capricious, and as part of Defendants’ normal course of business, 21 effectuated through both algorithms, as well as through human agents. Additionally, Defendants’ 22 actions were done knowingly and intentionally to deprive Plaintiffs and their viewers of their rights 23 under the California Constitution. 24 375. As a direct and proximate result of Defendants’ violations of clearly established law 25 regarding public fora, Plaintiffs and all other persons similarly situated have suffered, and continue 26 to suffer, immediate and irreparable injury in fact to their right to Liberty of Speech, including, but 27 not limited to financial harms of lost income, reduced viewership, and damage to brand, reputation, 28 and goodwill, for which there exists no adequately complete remedy at law. 1605366.1 Case No. -92CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 97 of 239 1 TENTH CAUSE OF ACTION FOR FREEDOM OF SPEECH UNDER THE FIRST AMENDMENT, UNITED STATES CONSTITUTION, AMENDMENT 1 (On Behalf Of Each Plaintiff Individually And The Class) 2 3 376. Plaintiffs re-allege and incorporate herein by reference, as though set forth in full, 4 each of the allegations set forth in paragraphs 1 through 375 above. 5 A. Procedural Background 377. The First Amendment prohibits a party from engaging in “state action” that violates 6 7 or harms a person’s right to engage in speech, association, expression, or other activity protected by 8 the Amendment. 9 378. Since at least 1946, the U.S. Supreme Court has held that the First Amendment 10 protects persons from private parties who engage in “state action” to restrict speech in ways that 11 violate the First Amendment. 12 379. Private parties can be state actors whose conduct is subject to judicial scrutiny and 13 held to account under the U.S. Constitution in a number of different circumstances, including, but 14 not limited to, a private party who (1) engages in a public function that has been traditionally 15 reserved as the exclusive province of government, such as operating a company town or providing 16 a service for the administration of a traditional government function like elections or law 17 enforcement (the “Public Function Test”); and/or (2) is the beneficiary of a government law that 18 endorses or permits the party to engage in conduct that interferes with a fundamental constitutional 19 right in a manner that the government may not (the “Permissive Endorsement Test”). 20 380. The issue of when a private party is engaged in “state action” under either of these 21 or other tests, is dependent on particular circumstances and has not been applied by the courts as a 22 one size fits all. 23 381. As a result, the extent to which circumstances may exist in which a private party 24 engages in conduct that violates the First Amendment remains murky and unclear. 25 382. In Manhattan Cmty. Access Corp. v. Halleck, --- U.S. --, --, 139 S. Ct. 1921 (2019), 26 the Supreme Court held that and private owner-operator of a public access cable channel who 27 regulates public speech on that channel does not become a state actor solely by the mere of making 28 1605366.1 Case No. -93CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 98 of 239 1 a privately owned television channel available for as a forum for speech: “a private entity who 2 provides a forum for speech is not transformed by that fact alone into a state actor.” Manhattan 3 Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930, 204 L. Ed. 2d 405 (2019). 4 383. In so doing, however, the Court in Halleck limited its 5-4 decision to the 5 circumstances of that case and declined to overrule prior cases in which a private party who 6 regulates speech or engages in conduct that is otherwise prohibited under the Constitution was 7 found to be a “state actor” who was subject to constitutional scrutiny. 8 384. Instead, the Court “stressed” that “very few” functions fall into that category of 9 “state action,” including, “for example, running elections and operating a company town. Id. at 10 1929, 204 (citing Terry v. Adams, 345 U.S. 461, 468–470, 73 S. Ct. 809, 97 L. Ed. 1152 (1953) 11 (elections); Marsh v. Alabama, 326 U.S. 501, 505–509, 66 S. Ct. 276, 90 L. Ed. 265 (1946) 12 (company town); Smith v. Allwright, 321 U.S. 649, 662–666, 64 S. Ct. 757, 88 L. Ed. 987 (1944) 13 (elections); Nixon v. Condon, 286 U.S. 73, 84–89, 52 S. Ct. 484, 76 L. Ed. 984 (1932) (elections). 14 385. The Court also stated that “a variety of functions do not fall into that category, 15 including, for example: running sports associations and leagues, administering insurance payments, 16 operating nursing homes, providing special education, representing indigent criminal defendants, 17 resolving private disputes, and supplying electricity.” Id. (citing American Mfrs. Mut. Ins. Co. v. 18 Sullivan, 526 U.S. 40, 55–57, 119 S. Ct. 977, 143 L.Ed.2d 130 (1999) (insurance payments); 19 National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179, 197, n. 18, 109 S. Ct. 454, 102 L. 20 Ed.2d 469 (1988) (college sports); San Francisco Arts & Athletics, Inc. v. United States Olympic 21 Comm., 483 U.S. 522, 544–545, 107 S. Ct. 2971, 97 L.Ed.2d 427 (1987) (amateur sports); Blum, 22 457 U.S. at 1011–1012, 102 S. Ct. 2777 (nursing home); Rendell-Baker, 457 U.S. at 842, 102 S. Ct. 23 2764 (special education); Polk County v. Dodson, 454 U.S. 312, 318–319, 102 S. Ct. 445, 70 L. 24 Ed.2d 509 (1981) (public defender); Flagg Bros., 436 U.S. at 157–163, 98 S. Ct. 1729 (private 25 dispute resolution); Jackson, 419 U.S. at 352–354, 95 S. Ct. 449 (electric service). 26 386. Consequently, allegations that the relevant function in this case is only the operation 27 of public access channels on a cable system, is not a “function [that is] traditionally and exclusively 28 been performed by government to be establish “state action” under the Public Function Test. Id. 1605366.1 Case No. -94CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 99 of 239 1 387. Beyond those statements, however, the Court in Halleck did not specify what the 2 pleading requirements are for establishing state action under one of the few “public functions” that 3 would trigger constitutional scrutiny. Nor was it presented with or had occasion to consider 4 whether the private parties conduct was undertaken under a government enacted law that permitted 5 unlawful conduct, including race discrimination, in contravention of fundamental constitutional 6 rights, so as to trigger a limited state action under the Permissive Endorsement Test set forth in 7 Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 109 S. Ct. 1402, 1407, 103 L. Ed. 2d 639 8 (1989). 9 388. In Prager University v. Google LLC, the Ninth Circuit applied Halleck to hold that 10 YouTube does not “lose its private character merely because the public is generally invited to use it 11 for designated purposes” because “YouTube may be a paradigmatic public square on the Internet, 12 but it is ‘not transformed’ into a state actor solely by “provid[ing] a forum for speech.” Prager 13 Univ. v. Google LLC, 951 F.3d 991, 997 (9th Cir. 2020) (citing Halleck, 139 S. Ct. at 1930, 1934). 14 389. But like Halleck, Prager did not, nor could it, overrule or eliminate the Public 15 Function Test doctrine of state action nor did it specify what the pleading requirement were for 16 establishing one of “the few” functions that will trigger state action. And it appears that the 17 decision may be in conflict with Halleck and earlier cases when it held that public forum 18 designations are “not a matter of election by a private entity” and “[we] decline to subscribe to 19 Prager U’s novel opt-in theory of the First Amendment. Id. at 999 (9th Cir. 2020) (citing Cent. 20 Hardware, 407 U.S. at 547, 92 S. Ct. 2238 (holding only that “[b]efore an owner of private 21 property can be subjected to the commands of the First and Fourteenth Amendments the privately 22 owned property must assume to some significant degree the functional attributes of public property 23 devoted to public use”). 24 390. Furthermore, the Ninth Circuit did not mention, or consider in any manner, the more 25 limited theory of Permissive Endorsement “state action” based on Defendants’ use of Section 26 230(c), a congressional speech regulation law, to unlawfully restrict speech 95% of the world’s 27 video speech based on race discrimination and other protected identity classifications or 28 1605366.1 Case No. -95CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 100 of 239 1 viewpoints that conflict with Plaintiffs’ fundamental equal protection and speech rights under the 2 Supreme Court’s seminal case in Skinner. 3 391. Consequently, no Court has ruled, nor could it, that Defendants can never engage, 4 under any circumstances, in “state action” that is subject to judicial scrutiny under the First 5 Amendment. Nor has the pleading standards and requirement for such a claim been established, 6 other than Defendants must be engaged in one of the few public functions identified in Halleck or 7 use a congressional statute to do what they could not otherwise do under established law: 8 discriminate against Plaintiffs’ speech based on their race, identity or viewpoint. 9 10 B. Permissive Endorsement Allegations Of State Action 392. In Skinner, private railroad companies were preparing to implement suspicion-based 11 breath and urine testing of their employees pursuant to recently enacted federal regulations referred 12 to in the case as “Subpart D.” Skinner, 489 U.S. at 611. Like Section 230(c)(2) of the CDA, 13 Subpart D was “permissive”; it did not compel the testing, but rather left the decision to the 14 railroads. Id. Crucially, however, again like Section 230(c)(2), Subpart D conferred state-law 15 immunity: it protected railroads from being sued under state law if they chose to test. Skinner, 489 16 U.S. at 611, 614-15 (Subpart D “pre-empt[ed] state laws, rules or regulations covering the same 17 subject matter” and thus “removed all legal barriers to the testing”). In so doing, a unanimous 18 Supreme Court held: 19 “[t]he fact that the Government has not compelled a private party to perform a 20 search does not, by itself, establish that the search is a private one. Here, specific 21 features of the regulations combine to convince us that the Government did more 22 than adopt a passive position toward the underlying private conduct. 23 Id. at 615. 24 393. Under Skinner, the elements of a state action claim under the Permissive 25 Endorsement Test are: (1) reliance on a government law that removes all laws and legal barriers to 26 private conduct that would otherwise unlawful and does so in a way that impacts a fundamental 27 constitutional right; (2) a defendant uses the law to engage in that unlawful conduct; and (3) the 28 government shares in the fruits or benefits in some way from the unlawful conduct. 1605366.1 Case No. -96CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 101 of 239 1 394. Defendants rely on Section 230 to unlawfully discriminate against Plaintiffs and 2 regulate their speech based on race, identity, viewpoint or in some other manner that violates 3 federal or state law. 4 395. Defendants use Section 230(c) to pre-empt state law and obtain complete immunity 5 in a manner that removes all legal barriers to the regulating, blocking, or restricting of content 6 based on Plaintiffs’ race, identity, or viewpoint. 7 396. Plaintiffs are forced to submit to race discrimination and other violations of their 8 legal rights when they use YouTube. 9 397. The Communications Decency Act was, as the statute’s name indicates, enacted by 10 Congress to restrict access to “indecent” content on the Internet. 141 Cong. Rec. S8330 (daily ed. 11 June 14, 1995) (statement of Sen. Exon). 12 398. The express purpose of Section 230(c)(2) is to encourage Internet platforms like 13 Google and YouTube to “restrict” “obscene, lewd, lascivious, filthy, excessively violent, harassing, 14 or otherwise objectionable” material. 47 U.S.C. § 230(c)(2). 15 399. “The intent of Congress in enacting § 230(c)(2) was to encourage efforts by Internet 16 service providers to eliminate such material.” Goddard v. Google, No. C 08-2738 JF (PVT), 2008 17 WL 5245490, at *6 (N.D. Cal. Dec. 17, 2008) (emphasis added). 18 400. Section 230(c) makes clear Congress’ “strong preference” for regulating on line 19 speech based on race, identity or viewpoint and for allowing Defendants to discriminate against 20 Plaintiffs in violation of established federal and state law. 21 401. The federal government has also made clear its “desire to share the fruits” of the 22 unlawful and discriminatory conduct undertaken by Defendants with respect to regulating on line 23 speech, law enforcement, information gathering, and other government services. 24 402. By way of one example only, in the six-month period from January to June 2017, 25 when Defendants first admitted that they were knowingly and intentionally profiling and targeting 26 users based on race, identity, and viewpoint, Google received almost 17,000 requests from U.S. law 27 enforcement to turn over information regarding users’ content and searches. See Cooperation or 28 1605366.1 Case No. -97CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 102 of 239 1 Resistance?: The Role of Tech Companies in Government Surveillance, 131 Harv. L. Rev. 1722, 2 1722 (2018). Google provided information to the government in some 80% of those cases. 3 403. Under Section 230(c), Congress allows and affirmatively endorses the unlawful 4 discrimination and other conduct by Defendants. 5 404. Defendants’ use of Section 230(c) to engage in discrimination and other unlawful 6 conduct under state and federal law to regulate on line “ material” on the internet is government 7 endorsed of the unlawful conduct and renders that conduct “state action” under Skinner and the 8 Permissive Endorsement Test. 9 10 C. State Action Allegations Under The Public Function Test 405. Under Halleck and Prager, the elements of state action under the Public Function 11 Test Appear to be: (1) Defendants are engaged in functions and conduct that fall into that 12 categories of “state action” that includes, but is not limited to, “running elections and operating a 13 company town.” 14 406. On or about December 2019, Defendants merged their different TOS into a single 15 contract whereby Defendants’ discretion to find a violation YouTube’s content based rules can be 16 used by Defendants to bar the user from using any or all services offered by Defendants in any way 17 including, the purchase and use of hand held smart phone, email, search engines, applications, and 18 information or other services that are essential for public health, safety, law enforcement, election 19 administration, taxation, and any other service performed by governments. 20 407. Defendants also operate a “company town” in which they control essential 21 information and communication services without which local, state, or federal government agencies 22 cannot provide or otherwise administer essential services including elections. 23 408. Until, if ever, the Supreme Court eliminates the Public Function Test for “state 24 action” in all cases as a matter of law, Defendants’ use and regulation of speech and information 25 services on YouTube involves the “very few” functions that satisfy the Public Function Test for 26 “state action.” 27 28 1605366.1 Case No. -98CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 103 of 239 1 D. Defendants’ Conduct Violates The First Amendment 2 409. Defendants continue to filter, restrict, block and/or interfere with Plaintiffs’ rights to 3 access, use, and express themselves on YouTube. 4 410. Defendants’ filtering, restricting, and blocking on Plaintiffs’ speech and expressive 5 conduct on YouTube violates Plaintiffs’ First Amendment rights because the conduct is not based 6 on the platform’s viewpoint neutral rules governing what content is and is not permissible, but on 7 the race, identity or viewpoint of Plaintiffs. 8 411. Defendants’ censorship and other speech regulation conduct harms and violates 9 Plaintiffs’ speech rights on YouTube in direct contravention of the procedural and substantive 10 viewpoint neutral content based rules that Defendants created, published, and use to regulate 11 speech on YouTube. 12 412. Furthermore Defendants’ rules, both as applied and on their face, are subjective, 13 vague, and overbroad criteria and proscription that Defendants use with unfettered and unbridled 14 discretion to censor speech for any reason, or no reason at all, no matter how arbitrary or capricious 15 in further violation of Plaintiffs’ First Amendment Rights. 16 413. Defendants also maliciously use and apply the Rules as a pretext to censor and 17 restrict Plaintiffs’ speech for unlawful purposes including race and identity discrimination against 18 protected classes of users and to gain a competitive advantage over Plaintiffs and other users who 19 Defendants compete with in YouTube. 20 414. Defendants’ conduct, including the application of purportedly viewpoint neutral 21 rules, are arbitrary and capricious, and unlawfully restrains and harms Plaintiffs and all other 22 persons similarly situated, based upon racial, political, religious, or other identity or viewpoint 23 profiling of the speaker, rather than the actual content of the speaker’s words or expression. 24 Defendants’ actions, therefore, also violate Plaintiffs’ right to free association and assembly under 25 the First Amendment. 26 415. Defendants’ actions violate Plaintiffs’ right to free association and assembly because 27 , by blocking viewers’ access to videos and comments based on the identity or viewpoint of the 28 1605366.1 Case No. -99CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 104 of 239 1 speakers or their opinions or other content featured in their videos that do not violate YouTube’s 2 viewpoint neutral content based rules 3 416. No compelling, significant, or legitimate reason justifies any or all of Defendants’ 4 actions, including the purported interest claimed by Defendants for the need to protect minors or 5 sensitive audiences from offensive content because Plaintiffs’ content is not “offensive” or 6 otherwise violates Defendants’ purported viewpoint neutral rules. 7 417. And even if such interests did exist to justify Defendants’ restriction and 8 demonetization rules in theory, the conduct and restrictions imposed on Plaintiffs’ speech are 9 unconstitutional because they are not narrowly or reasonably tailored to further such interests, but 10 sweep within their ambit speech and expression that complies with the rules that Defendants use to 11 purportedly protect minors and sensitive audiences and are applied by Defendants with unfettered 12 power to censor speech based in race, identity, or viewpoint or for any other discriminatory or 13 unlawful reason or no reason at all. 14 418. Given Defendants’ monopolistic control over search results, online advertising, 15 public video content, and the myriad of other information services that Defendants unilaterally 16 control, Plaintiffs have no alternative affording them a reasonable opportunity to reach their full 17 intended audience. 18 419. Defendants’ discriminatory policies and application of those policies are not 19 viewpoint-neutral, are unreasonable in time, place, and manner, and are unreasonable in relation to 20 the nature, purpose, and use of the forum, but are unreasonable prior restraints on Plaintiffs’ 21 protected political speech, motivated by impermissible discrimination against Plaintiffs’ identity 22 and viewpoint. 23 420. Defendants’ intentional and wrongful actions were taken with oppression, fraud, 24 malice and/or are arbitrary and capricious, and as part of Defendants’ normal course of business, 25 effectuated through both algorithms, as well as through human agents. Defendants’ actions were 26 done knowingly and intentionally to deprive Plaintiffs and their viewers of their rights under the 27 California Constitution. 28 1605366.1 Case No. -100CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 105 of 239 1 421. As a direct and proximate result of Defendants’ violations of clearly established law 2 regarding constitutional speech regulation on YouTube, Plaintiffs have suffered, and continue to 3 suffer, immediate and irreparable injury in fact to their right to Liberty of Speech, including, but 4 not limited to financial harms of lost income, reduced viewership, and damage to brand, reputation, 5 and goodwill, for which there exists no adequately complete remedy at law. 6 VII. PRAYER FOR RELIEF 7 Wherefore Plaintiffs and all other persons similarly situated request that the Court grant the 8 following relief: 9 1. A declaratory judgment remedy under 28 U.S.C. § 2201, et seq. for Plaintiffs’ First 10 Cause of Action challenging the construction, application, and constitutionality of Section 230(c) 11 of the Communications Decency Act, 47 USC § 230(c), that Section 230(c) does not grant 12 immunity to Defendants, or otherwise apply to claims and allegations that arise from, relate to, or 13 are based on, Defendants Google/YouTube’s unlawful racial profiling and use of the user’s race, or 14 other identity or viewpoint to filter, restrict, or block content, or otherwise deny Plaintiffs’ access 15 or use of any services offered by Google/YouTube in connection with Plaintiffs’ use of YouTube 16 on the grounds that: 17 a. The plain language of sections 230(c)(1) and/or (2) only immunizes and ISP 18 for filtering and blocking “offensive material,” and does not immunize the regulating, restricting or 19 blocking of material based on the racial, or other identity or viewpoint of the user posting or 20 viewing the video; 21 b. Sections 230(c)(1) or (c)(2) does not immunize an ISP who engages in race 22 based identity or viewpoint discrimination under contracts and other business conduct that violates 23 42 U.S.C. § 1981 or the Unruh Civil Rights Act; 24 c. The application of Section 230(c) in any way to permit and immunize race, 25 sex, or other identity or viewpoint based profiling and regulation of content and access on YouTube 26 is unconstitutional and violates the First Amendment under Denver Area 518 U.S. 727, 766-67; 27 and/or 28 1605366.1 Case No. -101CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 106 of 239 1 d. The President’s Executive Order date May 28, 2020, prohibits the 2 application of Section 230(c) immunity to the content and access filtering, restricting, and blocking 3 decisions and requires the Department of Justice to clarify and enforce the law in accordance with 4 identity and viewpoint neutrality. 5 2. A declaratory judgment remedy under section 2201that Defendants have violated 6 and continue to violate Plaintiffs’ rights to free speech and expression subject only to viewpoint 7 neutral content based rules that apply equally to all under Plaintiffs Second through Sixth, and 8 Eighth through Tenth Causes of Action; 9 3. 10 An injunction requiring Defendants to: a. Cease and desist from capriciously restricting, demonetizing, or otherwise 11 censoring any content of videos uploaded to the YouTube based on Plaintiffs’ race, or other 12 identity or viewpoint in violation of federal and California law; and 13 b. Cease and desist from censoring, restricting, restraining, or regulating speech 14 based on the discretionary use or application of discriminatory, animus-based, arbitrary, capricious, 15 vague, unspecified, or subjective criteria, rules, guidelines, and/or practices; 16 4. Compensatory, special, and statutory damages in an amount to be proven at trial, 17 including statutory damages pursuant to, inter alia, Civil Code § 51, 51.5, 52, Civil Procedure Code 18 § 1021.5, 15 U.S.C. § 1117, 42 U.S.C. §§ 1981, 1983; 19 5. A civil penalty of $2,500 for each violation pursuant to Business and Professions 20 Code §§ 17200, 17206, and 17536; 21 6. Punitive damages and exemplary damages in an amount to be proven at trial; 22 7. Restitution of financial losses or harm caused by Defendants’ conduct and ill-gotten 23 gains, and disgorgement of profit obtained from all unlawful conduct in an amount to be proven at 24 trial; 25 8. Attorneys’ fees and costs of suit; 26 9. Prejudgment and post-judgment interest; and 27 10. Any and all other relief that the Court deems just and proper. 28 1605366.1 Case No. -102CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 107 of 239 1 VIII. JURY TRIAL DEMAND 2 Plaintiffs demand trial by jury on all issues of law so triable. 3 DATED: June 16, 2020 Respectfully submitted, 4 BROWNE GEORGE ROSS LLP Peter Obstler Eric M. George Debi A. Ramos Keith R. Lorenze 5 6 7 8 By: /s/ Peter Obstler Peter Obstler Attorneys for Plaintiffs Kimberly Carleste Newman, Lisa Cabrera, Catherine Jones and Denotra Nicole Lewis 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1605366.1 Case No. -103CLASS ACTION COMPLAINT FOR DECLARATORY JUDGMENT, RESTITUTION AND DAMAGES Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 108 of 239 Exhibit Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 109 of1 239 of 29 1 BROWNE GEORGE ROSS LLP Peter Obstler (State Bar No. 171623) 2 pobstler@bgrfirm.com 44 Montgomery Street, Suite 1280 3 San Francisco, California 94104 Telephone: (415) 391-7100; Facsimile: (415) 391-7198 4 BROWNE GEORGE ROSS LLP 5 Eric M. George (State Bar No. 166403) egeorge@bgrfirm.com 6 Debi A. Ramos (State Bar No. 135373) dramos@bgrfirm.com 7 2121 Avenue of the Stars, Suite 2800 Los Angeles, California 90067 8 Telephone: (310) 274-7100; Facsimile: (310) 275-5697 9 Attorneys for LGBTQ+ Plaintiffs Divino Group LLC, Chris Knight, Celso Dulay, Cameron Stiehl, 10 BriaAndChrissy LLC, Bria Kam, Chrissy Chambers, Chase Ross, Brett Somers, and 11 Lindsay Amer, Stephanie Frosch, Sal Cinquemani, Tamara Johnson and Greg Scarnici 12 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION 15 DIVINO GROUP LLC, a California limited liability company, CHRIS KNIGHT, an 16 individual, CELSO DULAY, an individual, CAMERON STIEHL, an individual, 17 BRIAANDCHRISSY LLC, a Georgia limited liability company, BRIA KAM, an individual, 18 CHRISSY CHAMBERS, an individual, CHASE ROSS, an individual, BRETT 19 SOMERS, an individual, and LINDSAY AMER, an individual, STEPHANIE 20 FROSCH, an individual, SAL CINEQUEMANI, an individual, TAMARA 21 JOHNSON, an individual, and GREG SCARNICI, an individual, 22 Plaintiffs, 23 vs. 24 GOOGLE LLC, a Delaware limited liability 25 company, YOUTUBE, LLC, a Delaware limited liability company, and DOES 1-25, 26 Defendants. 27 Case No. 5:19-cv-004749-VKD DECLARATION OF STEPHANIE FROSCH IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO FILE SURREPLY BRIEF AND REQUEST FOR HEARING AND CASE MANAGEMENT CONFERENCE (Filed concurrently with Plaintiffs’ Sur-Reply Brief; Declaration of Peter Obstler) Date: Time: 10:00 a.m. Place: Courtroom 2 Before: Magistrate Judge Virginia DeMarchi 28 Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -1- Case No. 5:19-cv-004749-VKD EXHIBIT "A" Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 110 of2 239 of 29 1 I, Stephanie Frosch, declare: 2 1. I am a named Plaintiff in the above-captioned action. I have firsthand, personal 3 knowledge of the facts set forth below and if called as a witness could competently testify thereto, 4 unless other specified. 5 2. I am an LGBTQ internet content creator and YouTube user who is active in the 6 YouTube Community. 7 3. In 2009, I became a YouTube content creator and now operate two YouTube 8 channels: Youtube.com/ElloSteph and Youtube.com/StephFrosch. 9 4. From 2009 through 2016, my YouTube channels were successful. However, in 10 2017, I started having problems with YouTube: 11 a. YouTube was classifying many of my videos as subject to Restricted Mode, 12 making them unavailable to a large number of viewers, even though the videos contained no 13 nudity, profanity, sexual conduct, or discussions of sexual activities. YouTube also allowed other 14 YouTube channels to copy my videos without permission, and the content in those videos was re15 posted by another user and was not subjected to Restricted Mode. . 16 b. Many of my videos were demonetized or subject to reduced monetization 17 despite the fact that they do not include graphic images of violence or sexuality, nudity, profanity, 18 sexual conduct, or discussions of sexual activities. 19 c. YouTube was running ads on channels which were posting copies of my 20 videos without permission. 21 d. At least one of the customized thumbnail images I crafted for each of my 22 videos uploaded to my channels was removed. 23 e. Longtime subscribers to my channels were being dropped from my 24 channels, and YouTube was preventing them from re-subscribing. As a result, my subscribers 25 were not receiving notices when I posted new content. 26 5. YouTube no longer allows me to see the revenue I generated before October 2009. 27 My best recollection is that I earned approximately $23,000 from YouTube ad revenue in 2009. In 28 addition to ad revenue, I earn money from the sale of merchandise, from separate brand Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -2- Case No. 5:19-cv-004749-VKD Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 111 of3 239 of 29 1 sponsorship agreements connected with videos posted on my channels, and from the sale of 2 merchandise from the website www.districtlines.com/ellosteph. This is a separate website which 3 sells merchandise relating to my original videos posted to YouTube. 4 6. In 2017, I joined with other LGBTQ+ YouTube creators to publicly raise 5 awareness about issues and concerns regarding Defendants’ discriminatory treatment of LGBTQ+ 6 channels. Among other issues, I expressly raised the concern that changes to YouTube’s 7 algorithms and other content curation machine based procedures were disproportionately 8 restricting and affecting access to and the reach of content, as well as affecting other YouTube 9 services for LGBTQ+ YouTube creators and viewers who are members of what Defendants call 10 the “YouTube Community.” 11 7. On September 8, 2017, an LGBTQ+ YouTube content creator forwarded to me an 12 email dated August 25, 2017, from Laura Chernikoff of the “Internet Creators Guild” inviting him 13 to an event co-sponsored by YouTube regarding changes to YouTube’s algorithm which were 14 adversely affecting the LGBTQ+ community. 15 Ms. Chernikoff’s invitation stated: 16 You're invited to an upcoming event put on by the Internet Creators Guild, in partnership with YouTube on Thursday, September 14th at 11:00 AM. 17 18 19 20 21 22 23 Following the advertising situation on YouTube this spring (dubbed the "Adpocalypse"), YouTube is interested in hearing about creators' experiences on the platform. In particular, it's important for creators to understand the advertising guidelines and tools that brands interact with, in order to be aware how it may affect your monetization. We’ve been discussing this issue with YouTube, who have been working to address creator concerns on this topic. They would like to share this presentation, which will be under NDA, in order to hear from ICG Members and creators we’re in touch with as part of a small focus group. We thought you would be an engaged and thoughtful participant and hope you’re able to attend. 24 Attached as Exhibit 1 is a true and correct copy of the email I received with the invitation to the 25 September 14-event. Based on the email, I understood that before YouTube would even speak to 26 me or any other members of the group of LGBTQ+ creators about the problems with the new 27 YouTube algorithm implemented in May of 2017, YouTube required each of us to sign a Non28 Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -3- Case No. 5:19-cv-004749-VKD Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 112 of4 239 of 29 1 Disclosure Agreement (the “NDA”). 2 8. Ms. Chernikoff sent an email to me dated September 11, 2017 which confirms my 3 participation in the September 14-event and states: “Please note that a non-disclosure agreement 4 (NDA) will be sent via email by a member of the YouTube team and is required to be signed prior 5 to the event, so keep an eye out!” Attached as Exhibit 2 is a true and correct copy of the email 6 dated September 11, 2017 from Ms. Chernikoff. 7 9. On September 13, 2017, Defendants sent to me by email a request for my signature 8 on an electronic Non-Disclosure Agreement in connection with the September 14-event. Upon 9 signing the electronic document, I received a confirmation email which has a subject: “You have 10 accepted Google’s Non-Disclosure Agreement.” The text of the email sets forth my personal 11 information and a copy of the Non-Disclosure Agreement. Attached as Exhibit 3 is a true and 12 correct copy of the email from Google confirming receipt of my signed Non-Disclosure 13 Agreement. 14 10. 15 “In order to evaluate and possibly enter into a business transaction (the “Purpose”), Google Inc., for itself and its subsidiaries and affiliates, and the other party identified below hereby agree:” 16 The Non-Disclosure Agreement states: 17 At the time that I signed the agreement, I had no idea what “business transaction” the document 18 was referring to. As a YouTube user, I had previously entered into a YouTube Terms of Service 19 Agreement and an AdSense Agreement. As of September 13, 2017, I was not thinking about 20 entering into any new “business transaction” with YouTube or Google, or changing the existing 21 agreements I had with YouTube and AdSense. Neither YouTube nor Google had mentioned any 22 new business transaction, or changes to any existing agreements. I was merely trying to meet with 23 YouTube representatives to discuss with them the many problems that I had been having with my 24 YouTube channel and the falling views and revenue I was experiencing as a result of changes 25 YouTube made to their algorithm in May of 2017. I did not expect for YouTube or Google to 26 give me trade secrets, computer codes, or any other proprietary information at the meeting. And 27 they did not. I simply talked to YouTube and/or Google about my problems and how to resolve 28 them. Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -4- Case No. 5:19-cv-004749-VKD Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 113 of5 239 of 29 1 11. The Non-Disclosure Agreement does not define what “Confidential Information” 2 is, except to say that it is whatever “the Discloser considers” to be “confidential.” I have no way 3 of knowing what YouTube or Google consider to be confidential, or expect me to treat as 4 confidential. “Confidential Information” is not limited to trade secrets such as YouTube or 5 Google’s customer lists, computer codes, or processes. 6 12. On September 14, 2017, I went to the event at the YouTube Playa Vista Office in 7 Los Angeles, California. Upon arrival at the September 14-event, I checked in at 11:00 a.m. 8 YouTube provided lunch for the participants. Around 11:30, a YouTube representative announced 9 that the YouTube analytics guy had limited time and was running late. The YouTube 10 representative asked us to quickly sign a hard copy Non-Disclosure Agreement so that we could 11 get started as fast as possible, and indicated that we had to move quickly so that there was time 12 with the analytics representative. The representative then came up to me, handed me a hard copy 13 Non-Disclosure Agreement, and asked me to sign it while he stood there waiting. I was not given 14 time to read the document which had multiple pages and appeared to be longer and more detailed 15 than the one I had signed online. The representative then took my signed document, and quickly 16 approached another creator requesting their signature. YouTube did not offer me a copy of this 17 Non-Disclosure Agreement. Immediately after signing the document, I was ushered into a large 18 conference room. 19 13. The September 14 event involved 12 to 20. YouTube creators, each representing a 20 different class of video. While I was the only LGBTQ representative creator, there were other 21 LGBTQ creators who were posting videos in other categories. I recall there were individual 22 representatives for cooking, comedy, and gaming videos, some of which happened to identify as 23 LGBTQ although they were not specifically creating videos for the LGBTQ community. We were 24 seated at a large oval conference table, and offered notebooks and pens. The presenters all 25 identified as YouTube employees. 26 14. During the September 14 event, we watched a PowerPoint presentation. We heard 27 from a man who identified himself as the YouTube employee responsible for analytics and a 28 woman who addressed algorithm issues. Also present were Ben Cramer and someone who was Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -5- Case No. 5:19-cv-004749-VKD Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 114 of6 239 of 29 1 handing out YouTube swag. In all, I recall that there were five YouTube representatives present at 2 the event, in addition to the man who got me to sign the second Non-Disclosure Agreement before 3 I entered the conference room for the presentation. YouTube specifically prohibited us from 4 taking photos or recording the event. 5 15. The YouTube presenters stated that they wanted to work with us creators, and 6 explained that YouTube makes money off of the creators who make the video content from 7 advertisers, and that creators win by sharing in the advertising money. They explained that 8 advertisers buy ads based on viewer demographics for the videos. YouTube and creators monetize 9 off of each other and YouTube does not want to hurt creators. The YouTube presenters discussed 10 problems with filtering video content for purposes of restricted mode, monetization and the 11 payments for cpm (clicks per minute). 12 16. When asked why videos which use gay couples are getting blocked as mature 13 content or inappropriate for all audiences, or videos are getting blocked for mentioning the word 14 “queer,” the YouTube representative made the following statements: 15 a. Blocking LGBTQ videos was caused when YouTube started using an 16 artificial intelligence algorithm to filter content based on what advertisers want; it is the algorithm 17 that is “targeting” LGBTQ videos. YouTube was not discriminating, the algorithm was 18 discriminating. The YouTube representative was talking about the algorithm as if it were some 19 independent video censor that was entirely unrelated to YouTube and its employees, and beyond 20 their control; rather than a tool which YouTube specifically designed and put in place to regulate 21 videos on the platform, which YouTube could change or remove from the platform entirely. 22 b. There are too many videos on YouTube to review all content manually. 23 YouTube must use artificial intelligence to conduct the content reviews on the YouTube platform. 24 c. The artificial intelligence algorithm identifies people, including the racial or 25 sexual identities or viewpoints of the creator or viewers when filtering and curating content and 26 restricting access to YouTube services; it does not review and make restrictions based only on the 27 video content. This is due in part to the fact that advertisers want to be able to target audiences 28 based on the demographics of the creators and their audiences. The result is that the algorithm Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -6- Case No. 5:19-cv-004749-VKD Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 115 of7 239 of 29 1 discriminates based on the identity of the creator or its intended audience when making what are 2 supposed to be neutral content based regulations and restrictions for videos that run on YouTube. 3 d. Despite the problems with the algorithm, YouTube and the creators are on 4 the “same side.” The rules should apply equally to all regardless of the identity or viewpoint of 5 the creator. 6 e. When the creators told YouTube representatives that they understood why 7 an advertiser would not want a Pampers ad on video content featuring guns, they still did not 8 understand why content from homosexual creators was being demonetized when identical content 9 from heterosexual creators was not, the YouTube representatives said that they were “going to fix 10 it.” No details of what they were doing, or planned on doing to fix the algorithm were provided 11 and no one (at the meeting or since) indicated when, if ever, the fix for this “problem” would be 12 completed. 13 f. In response to further questions from creators, the YouTube representatives 14 specifically acknowledged that the algorithm was looking at and profiling the sexual identities, 15 races, disabilities, religious and political affiliations of creators, intended audiences and viewers 16 alike. 17 17. The YouTube representatives discussed the example of a YouTube creator who had 18 a chef’s channel and posted cooking videos: if the creator identified as gay, or had a lot of 19 subscribers or viewers who accessed a lot of LGBTQ related videos, the cooking video would be 20 tagged as a “gay” video for monetization and restricted mode purposes, regardless of the actual 21 content of the video. 22 18. Towards the end of the September 14-event, which lasted about 2 hours, I 23 specifically asked the YouTube representative, “What are you doing to fix the problems we have 24 identified?” and “When will you be done fixing the problems?” The YouTube representative 25 responded to each question saying, “I cannot answer that question.” To this date, no one at the 26 September 14 event has ever provided me any substantive response to my questions regarding the 27 problems or the fix. 28 19. As far as I can recall, no one at the September 14-event -- (a) said that what they Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -7- Case No. 5:19-cv-004749-VKD Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 116 of8 239 of 29 1 were saying was “confidential” in connection with either the online or hard copy Non-Disclosure 2 Agreements; (b) said that what they were talking about was a “trade secret;” (c) described actual 3 YouTube’s computer code or proprietary processes used in connection with YouTube, the 4 analytics, the algorithm, or AdSense; (d) asked me not to repeat anything that was said during the 5 event by other creators. 6 20. Until the time that Defendants finally released me from my NDAs in March of this 7 year, I was prohibited by the NDAs from discussing, with anyone, including my attorneys in this 8 case, the substance, nature, and details of the September 14-event, including the statements made 9 by the YouTube representatives about identity and viewpoint discrimination in regulating 10 monetization, access to content and services. Consequently, the information and statements 11 presented at the September 14-event could not be included in the Second Amended Complaint. 12 Even though I have no idea what, if anything Defendants claim is “confidential,” I was afraid and 13 at risk that if I ever talked about what was said at the meeting, YouTube could or would sue me 14 for violating the NDA(s). I have also been afraid that Defendants would suspend or terminate my 15 channel, my gmail account, or even suspend my access to Google searches if I violated the 16 NDA(s). 17 21. On March 26, 2020, after my lawyers had notified YouTube that I had decided to 18 file a motion to void or release me from the gag provisions of the NDAs, Defendants informed my 19 lawyers in writing that they had “no intention of enforcing the NDA.” Attached as Exhibit 4 is a 20 true and correct copy of the correspondence between my lawyers and Defendants’ attorneys, 21 including the email releasing me from the NDAs. 22 22. Following the receipt of that email, I was finally able to inform my lawyers of the 23 substance of what was said by the YouTube representatives at the September 14-event. 24 23. I have reviewed the Defendants’ Motion to Dismiss the Second Amended 25 Complaint. In the Motion to Dismiss, Defendants make a number of factual assertions which are 26 loosely based on allegations in the Complaint. As stated below, I believe that Defendants’ factual 27 assertions are either wrong or misleading, as indicated below: 28 a. Defendants state in their Motion: Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -8- Case No. 5:19-cv-004749-VKD Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 117 of9 239 of 29 2 Content creators upload videos to the service free of charge, enabling YouTube’s billions of users to view them, comment on them, and subscribe to their favorite creators’ channels. ¶ 52. MTD at 3:2-4. 3 In truth, while there is no monetary charge for uploading videos, in exchange for the 1 4 opportunity to use the YouTube website, Defendants required me to give them a license to use all 5 of my original video content that is posted to the YouTube website, the right to collect data about 6 me, and my use of the YouTube website, and also the right to collect data about people who view 7 my videos on the YouTube website. 8 9 b. Defendants state in their Motion: YouTube values the perspectives and experiences that LGBTQ+ content creators bring to the platform. MTD at 3:17-18. 10 My experience with YouTube since 2017 is directly contrary to this statement. After the 11 September 14-event, no one at YouTube followed up with me – no one checked to see if my 12 problems had been resolved; no one checked to see how much the algorithm had cost me in lost 13 subscribers, advertising revenue, cpm, or reduced viewers. In fact, no one from YouTube ever 14 helped me solve the problems identified at the September 14-event. Rather, following the event, 15 my subscribers, advertising revenues, cpm, and viewers continued to decline. Though my 16 viewership was stable, AdSense revenues dropped substantially. 17 24. Since filing the lawsuit, YouTube shut off the analytics for the cpm so that creators 18 like me are no longer able to calculate the lost revenue from reduced cpm due to demonetization. 19 My viewer numbers have been cut dramatically and subscribers complain that they cannot get new 20 video notices. Recently, I co-created a video with my girlfriend, who does not identify as 21 LGBTQ. We both posted the same identical video at the same time. While my girlfriend earned 22 $3,000 from the video, I earned only $300. 23 a. Defendants state in their Motion: 24 25 26 27 In 2017, when LGBTQ+ creators raised issues about Restricted Mode, YouTube acknowledged that the feature was not fully working as intended and agreed to make improvements. ¶¶ 28, 87. MTD at 3:21-4:1. Defendants’ description of YouTube’s “acknowledgment” is misleading. Contrary to the Motion’s spin on the allegations in the Complaint, the concerns I and other LGBTQ+ creators 28 Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -9- Case No. 5:19-cv-004749-VKD Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 118 of 10239 of 29 1 raised were not limited to Restricted Mode, but extended to demonetization and cpm. In fact, at 2 the September 14-event, YouTube’s representatives acknowledged that the algorithm was 3 discriminating against LGBTQ creators as well as other creators based on their identities and 4 personal affiliations, as well as those of their subscribers and viewers. YouTube’s representatives 5 also stated that the feature was working as YouTube intended: it was profiling creators and 6 viewers for YouTube’s advertisers so that the advertisers could target audiences based on personal 7 identity including whether viewers were gay, disabled, members of a racial group or affiliated with 8 specific viewpoints or groups. YouTube’s representatives confirmed that decisions regarding a 9 video’s status vis a vis restricted mode, monetization and cpm were being made on grounds that 10 were unrelated to the actual content of the video. While the YouTube representatives agreed that 11 they were working to fix the problems, they did not specify what they were doing to stop the 12 discrimination in the interim or to otherwise provide a timeframe for completing the fix. 13 14 15 16 b. Defendants state in their Motion: As for the Plaintiffs here, YouTube has addressed their individual concerns in good faith, and often removed restrictions from their videos, when appropriate under YouTube’s policies, in response to their appeals. ¶¶ 186, 223, 227, 230, 233, 236.a. MTD at 4:1-4. Defendants’ statement is grossly misleading to the extent that it suggests that YouTube 17 actually resolved any of the complaints I (or any other LGBTQ+ creator) raised at the 2017 18 meeting with the Defendants. YouTube has not “addressed” my concerns, continues to profile 19 my videos based on my identity as a member of the LGBTQ community and my affiliation with 20 LGBTQ groups and has increased its discrimination against me by restricting the majority of my 21 videos, and gutting my subscriber lists, viewers, ad revenue, and cpm. 22 c. Defendants state in their Motion: 23 24 25 26 27 28 The use of its service is governed by rules and an array of content policies. ¶¶ 10, 248, 288. Before creating channels and uploading their content to the service, Plaintiffs acknowledge they agreed to YouTube’s Terms of Service and the incorporated Community Guidelines. ¶¶ 10, 14, 59, 248, The Terms of Service provide that “YouTube reserves the right to remove Content without prior notice,” including videos uploaded by content creators. Ex. 2-3. The Community Guidelines are twelve “common-sense rules” prohibiting certain kinds of content, including “[n]udity or sexual content” and “[v]ulgar language.” Exs. 34. Google and YouTube reserve the right to remove any content that they believe to Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -10- Case No. 5:19-cv-004749-VKD Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 119 of 11239 of 29 1 be contrary to the Terms of Service and the incorporated Community Guidelines. Ex. 2. MTD at 4:6-15. 2 3 4 5 6 7 8 9 10 YouTube allows content creators whose channels meet certain minimum viewership requirements to earn revenue from (or “monetize”) their videos by running advertisements with them as part of the YouTube Partner Program. To be eligible to monetize their videos, in addition to the Terms of Service and Community Guidelines discussed above, Plaintiffs agreed to certain additional “written contracts,” including YouTube’s Partner Program Terms and the AdSense Terms of Service. See ¶ 331; Exs. 5-6, 10. In addition, Plaintiffs agreed to comply with YouTube’s monetization policies, including the Advertiser-friendly content guidelines, which are designed to ensure that ads do not appear alongside videos with content that certain audiences might find objectionable. See ¶¶ 152, 248, 331; Exs. 5-11. YouTube uses automated software to identify content as inappropriate for advertising, and creators may appeal demonetization decisions for manual review. ¶ 94; Ex. 9. MTD at 5:9-19. Defendants’ description of the website rules is misleading and deceptive: When I agreed to Defendants’ Terms of Service, Community Guidelines, Partnership Program Terms, and 11 AdSense Terms of Service, I understood that these terms were nonnegotiable and that each 12 YouTube user was agreeing to these same terms. YouTube stated in its Terms of Service and 13 Community Guidelines that the rules to which I agreed would be applied equally to all YouTube 14 users, in a neutral manner. At the September 14-event, YouTube representatives reaffirmed their 15 commitment to the universal set of rules which apply equally to all; however, they also confirmed 16 that they were using an artificial intelligence algorithm which discriminates against users based on 17 their identities. As long as YouTube’s algorithm profiles users, then YouTube cannot be applying 18 the same rules equally to all users in a neutral manner. 19 25. YouTube did not inform me that my videos would be distributed, made available 20 for viewing, or monetized for profit based on who I am (a lesbian educator) or on my stated views 21 regardless of the actual content of the video posted. Nor did YouTube inform me that to the extent 22 that it sponsored other creators, or their channels or individual videos, that those sponsored 23 creators/channels/videos would not be subject to the same Terms of Service, Community 24 Guidelines, Partnership Program Terms, or AdSense Terms of Service that I must follow. Nor did 25 YouTube inform me that it would be creating Defendants’ own original video content which 26 would not be subjected to the same Terms of Service, Community Guidelines, Partnership 27 Program Terms, or AdSense Terms of Service that I and other third-party users must follow. 28 Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -11- Case No. 5:19-cv-004749-VKD Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 120 of 12239 of 29 1 26. YouTube did not inform me that in giving Defendants a license to use the videos I 2 posted, that it would allow other YouTube users to copy my original videos, post them on the 3 channels of other YouTube users, or receive revenue related to my original videos. 4 27. Tamara Johnson, one of the named Plaintiffs, is an LGBTQ+ creator who operates 5 the YouTube channel, SVTV Network. Ms. Johnson also owns and operates an internet online 6 on-demand monthly subscription network https://www.svtvnetwork.com/ dedicated to original 7 content specifically designed for LGBTQ+ audiences. Ms. Johnson is an African American. Her 8 original web series videos feature African American members of the LGBTQ community. 9 10 11 12 13 14 15 28. In their Reply Brief, Defendants assert that: . . . Plaintiffs’ opposition brief also purports to represent the interests of “African American content creators and users” (see, e.g., Opp. 1), but the Complaint does not include any actual allegations in support of any claim for racial discrimination. Reply fn.2 at p.3. This is not true. Plaintiffs’ Second Amended Complaint includes allegations that Defendants unlawfully use “data regarding the video creators,’ subscribers,’ or viewers’ . . . race, ethnicity, commercial, or political identities or viewpoints” (paragraph 7 emphasis added); and Defendants “rely upon and invoke federal law under Section 230(c) to preempt and immunize unlawful 16 filtering, regulations, and practices on the YouTube Platform, including practices which 17 discriminate based upon race . . . or individual viewpoints, and in doing so, engage in unlawful 18 discriminatory, arbitrary, and capricious repression of public speech under color of federal law.” 19 [Paragraph 289 emphasis added.] The Second Amended Complaint also alleges that Defendants 20 21 22 are “using identity based censorship to determine who can and cannot continue to use the YouTube Platform” (paragraph 8); and that their representative “promised LGBTQ+ YouTubers that Defendants would ensure that ‘Restricted Mode’ should not filter out content belonging to 23 individuals or groups based on certain attributes like gender, gender identity, political 24 viewpoints, race, religion or sexual orientation,” (paragraph 29, 121, emphasis added). 25 29. The allegations of the Second Amended Complaint identified above are consistent 26 with and supported by what I was told by the YouTube representatives at the September 14-event 27 regarding racial profiling and discrimination embedded in the algorithm. When called to testify as 28 Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -12- Case No. 5:19-cv-004749-VKD Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 121 of 13239 of 29 1 a witness, I will testify specifically that the YouTube representatives at the September 14 event 2 said that the algorithm was targeting African American creators, subscribers and viewers in the 3 same way that it was targeting LGBTQ creators, subscribers and viewers. 4 I declare under penalty of perjury under the laws of the United States of America that the 5 foregoing is true and Executed this 20th day of April, 2020, at New York, New York. 6 __________ ______________________________ 7 8 STEPHANIE FROSCH 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stephanie Frosch Declaration in Support of Motion to File Sur-Reply Brief -13- Case No. 5:19-cv-004749-VKD Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 122 of 14239 of 29 Exhibit “1” Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 123 of 15239 of 29 From: Steph Frosch Date: Tue, Aug 20, 2019 at 12:04 AM Subject: Fwd: Focus Group event: YouTube's Advertising Guidelines To: Stephanie Frosch ---------- Forwarded message --------From: Laura Chernikoff Date: Thu, Sep 21, 2017 at 11:46 AM Subject: Re: Focus Group event: YouTube's Advertising Guidelines To: Steph Frosch Thanks for participating in this ICG event with YouTube. We know this session had some logistical challenges with the timing and apologize. We’re still experimenting with this type of event, and thinking about ways to advocate for creators about the difficult monetization and advertising guidelines challenges. We’d love to hear about your experience – you can share your honest feedback by filling out this brief survey. Laura Laura Chernikoff Executive Director Internet Creators Guild internetcreatorsguild.com On Wed, Sep 13, 2017 at 2:57 PM, Steph Frosch wrote: Signed and sent! Looking forward to tomorrow. All the best, Stephanie Frosch YouTube.com/ElloSteph On Wed, Sep 13, 2017 at 11:21 AM, Laura Chernikoff wrote: Hey, I wanted to send a quick reminder to sign the NDA YouTube sent for tomorrow's event. They need everyone attending the event to sign in order to participate, so I wanted to make sure you hadn't missed it. Let me know if you have any questions or concerns! Laura Laura Chernikoff Executive Director Internet Creators Guild internetcreatorsguild.com On Mon, Sep 11, 2017 at 11:07 AM, Laura Chernikoff wrote: Thanks Davey! Moving you to bcc. Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 124 of 16239 of 29 Steph, we're excited to have you at this event this week. Here's a confirmation with details about the location. Please note that a non-disclosure agreement (NDA) will be sent via email by a member of the YouTube team and is required to be signed prior to the event, so keep an eye out! RSVP: You are confirmed. Date: Thursday, September 14th Check In Time: 11am Presentation Starts: 11:30am *Lunch and an opportunity to mingle with your fellow creators will be included. Location: YouTube Playa Vista Office – 12400 W. Bluff Creek Drive. Los Angeles, CA 90094 Directions: At the intersection of S Centinela Ave & Jefferson Blvd, turn onto S Campus Center Dr. Drive to the end of Campus Center Dr. Turn left on West Bluff Creek Drive and make a quick right into “Lot B”. US-PLV-H10 will be the building just West of the parking lot. If you have trouble finding the office, contact Ben Kramer: benkramer@google.com // 650495-7545 If your plans have changed and you are unable to attend, please let us know ASAP. Laura Laura Chernikoff Executive Director Internet Creators Guild internetcreatorsguild.com On Fri, Sep 8, 2017 at 5:36 PM, Davey Wavey wrote: Hey Laura, CC'ing Steph Frosch on this. She'd love to attend! On Thu, Aug 31, 2017 at 6:06 PM, Laura Chernikoff wrote: Unfortunately this event is in-person only. Sorry to hear you can't make it, but we'll keep you in mind for similar events in the future. Do any other LA-based creators come to mind who were effected by this issue? I know the LGBT community especially deals with this and I want to make sure their voices are well represented in that room. Laura Laura Chernikoff Executive Director Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 125 of 17239 of 29 Internet Creators Guild internetcreatorsguild.com On Tue, Aug 29, 2017 at 9:52 AM, Davey Wavey wrote: Hey Laura, I'll be traveling - is there a remote option for attending? Best, Davey On Fri, Aug 25, 2017 at 1:28 PM, Laura Chernikoff wrote: Hey Davey, You're invited to an upcoming event put on by the Internet Creators Guild, in partnership with YouTube on Thursday, September 14th at 11:00 AM. Following the advertising situation on YouTube this spring (dubbed the "Adpocalypse"), YouTube is interested in hearing about creators' experiences on the platform. In particular, it's important for creators to understand the advertising guidelines and tools that brands interact with, in order to be aware how it may affect your monetization. We’ve been discussing this issue with YouTube, who have been working to address creator concerns on this topic. They would like to share this presentation, which will be under NDA, in order to hear from ICG Members and creators we’re in touch with as part of a small focus group. We thought you would be an engaged and thoughtful participant and hope you’re able to attend. Please RSVP with either yes, no, or maybe by September 5th. Thursday, September 14th Check in 11:00 AM; presentation at 11:30 AM YouTube Playa Vista Campus Understanding YouTube's Advertising-Friendly Content Guidelines In this session, YouTube will cover the recent changes to the platform's Advertiser-Friendly Content Guidelines and what they mean to both advertisers and creators. They will review the updated guidelines, discuss how YouTube surfaces ads, and the targeting systems advertisers leverage to place their ads. This will be followed by a Q&A, where creators will be able to ask questions, as well as share their experiences and feedback on these changes. This event is invite-only and has limited space. If you know of other creators who would be interested in the topic and available to attend, please let me know their name, channel, and email address. Thanks! Laura Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 126 of 18239 of 29 Laura Chernikoff Executive Director Internet Creators Guild internetcreatorsguild.com -Davey Wavey Digital Storyteller -Davey Wavey Digital Storyteller Stephanie Frosch YouTube Instagram Twitter -Stephanie Frosch she/her/hers Storyteller Activist Educator phone: +1 954.235.4604 Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 127 of 19239 of 29 Exhibit “2” Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 128 of 20239 of 29 From: Laura Chernikoff Date: Mon, Sep 11, 2017 at 1:08 PM Subject: Re: Focus Group event: YouTube's Advertising Guidelines To: Cc: Steph Frosch Thanks Davey! Moving you to bcc. Steph, we're excited to have you at this event this week. Here's a confirmation with details about the location. Please note that a non-disclosure agreement (NDA) will be sent via email by a member of the YouTube team and is required to be signed prior to the event, so keep an eye out! RSVP: You are confirmed. Date: Thursday, September 14th Check In Time: 11am Presentation Starts: 11:30am *Lunch and an opportunity to mingle with your fellow creators will be included. Location: YouTube Playa Vista Office – 12400 W. Bluff Creek Drive. Los Angeles, CA 90094 Directions: At the intersection of S Centinela Ave & Jefferson Blvd, turn onto S Campus Center Dr. Drive to the end of Campus Center Dr. Turn left on West Bluff Creek Drive and make a quick right into “Lot B”. US-PLV-H10 will be the building just West of the parking lot. If you have trouble finding the office, contact Ben Kramer: benkramer@google.com // 650495-7545 If your plans have changed and you are unable to attend, please let us know ASAP. Laura Laura Chernikoff Executive Director Internet Creators Guild internetcreatorsguild.com On Fri, Sep 8, 2017 at 5:36 PM, Davey Wavey wrote: Hey Laura, CC'ing Steph Frosch on this. She'd love to attend! On Thu, Aug 31, 2017 at 6:06 PM, Laura Chernikoff wrote: Unfortunately this event is in-person only. Sorry to hear you can't make it, but we'll keep you in mind for similar events in the future. Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 129 of 21239 of 29 Do any other LA-based creators come to mind who were effected by this issue? I know the LGBT community especially deals with this and I want to make sure their voices are well represented in that room. Laura Laura Chernikoff Executive Director Internet Creators Guild internetcreatorsguild.com On Tue, Aug 29, 2017 at 9:52 AM, Davey Wavey wrote: Hey Laura, I'll be traveling - is there a remote option for attending? Best, Davey On Fri, Aug 25, 2017 at 1:28 PM, Laura Chernikoff wrote: Hey Davey, You're invited to an upcoming event put on by the Internet Creators Guild, in partnership with YouTube on Thursday, September 14th at 11:00 AM. Following the advertising situation on YouTube this spring (dubbed the "Adpocalypse"), YouTube is interested in hearing about creators' experiences on the platform. In particular, it's important for creators to understand the advertising guidelines and tools that brands interact with, in order to be aware how it may affect your monetization. We’ve been discussing this issue with YouTube, who have been working to address creator concerns on this topic. They would like to share this presentation, which will be under NDA, in order to hear from ICG Members and creators we’re in touch with as part of a small focus group. We thought you would be an engaged and thoughtful participant and hope you’re able to attend. Please RSVP with either yes, no, or maybe by September 5th. Thursday, September 14th Check in 11:00 AM; presentation at 11:30 AM YouTube Playa Vista Campus Understanding YouTube's Advertising-Friendly Content Guidelines In this session, YouTube will cover the recent changes to the platform's Advertiser-Friendly Content Guidelines and what they mean to both advertisers and creators. They will review the updated guidelines, discuss how YouTube surfaces ads, and the targeting systems advertisers leverage to place their ads. This will be followed by a Q&A, where creators will be able to ask questions, as well as share their experiences and feedback on these changes. Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 130 of 22239 of 29 This event is invite-only and has limited space. If you know of other creators who would be interested in the topic and available to attend, please let me know their name, channel, and email address. Thanks! Laura Laura Chernikoff Executive Director Internet Creators Guild internetcreatorsguild.com Davey Wavey Digital Storyteller Davey Wavey Digital Storyteller Stephanie Frosch YouTube Instagram Twitter Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 131 of 23239 of 29 Exhibit “3” Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 132 of 24239 of 29 From: Google Legal Date: Wed, Sep 13, 2017 at 4:56 PM Subject: You have accepted Google's Non-Disclosure Agreement To: You have accepted the terms and conditions presented in Google's Non-Disclosure Agreement on 2017-09-13 20:56:35. Company Name: ElloSteph Name: Stephanie Frosch Title: Content Creator Email: StephFrosch@gmail.com Address: 1300 N Curson Ave Apt 4 West Hollywood, California, 90046 United States Below is a copy of the Agreement for your reference: NON-DISCLOSURE AGREEMENT In order to evaluate and possibly enter into a business transaction (the “Purpose”), Google Inc., for itself and its subsidiaries and affiliates, and the other party identified below hereby agree: 1. The Effective Date of this agreement is the date this agreement is accepted by the party identified below. 2. A party (the “Discloser”) may disclose to the other party (the “Recipient”) information pertaining to the Purpose that the Discloser considers confidential (“Confidential Information”). 3. Recipient may use Confidential Information only for the Purpose. Recipient must use a reasonable degree of care to protect Confidential Information and to prevent any unauthorized use or disclosure of Confidential Information. Recipient may share Confidential Information with its employees, directors, agents or third party contractors who need to know it and if they have agreed with either party in writing to keep information confidential. 4. Confidential Information does not include information that: (a) was known to Recipient without restriction before receipt from Discloser; (b) is publicly available through no fault of Recipient; (c) is rightfully received by Recipient from a third party without a duty of confidentiality; or (d) is independently developed by Recipient. A party may disclose Confidential Information when compelled to do so by law if it provides Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 133 of 25239 of 29 reasonable prior notice to the other party, unless a court orders that the other party not be given notice. 5. Either party may terminate this agreement with thirty days prior written notice, but this agreement’s provisions will survive as to Confidential Information that is disclosed before termination. 6. Unless the parties otherwise agree in writing, Recipient’s duty to protect Confidential Information expires five years from disclosure. 7. This agreement imposes no obligation to proceed with any business transaction. 8. No party acquires any intellectual property rights under this agreement except the limited rights necessary to use the Confidential Information for the Purpose. 9. This agreement does not create any agency or partnership relationship. This agreement is not assignable or transferable by either party without the prior written consent of the other party. 10. This agreement is the parties’ entire agreement on this topic, superseding any prior or contemporaneous agreements. Any amendments must be in writing. The parties may execute this agreement in counterparts, which taken together will constitute one instrument. Failure to enforce any of provisions of this agreement will not constitute a waiver. 11. This agreement is governed by the laws of the State of California, excluding its conflict-of-laws principles. The exclusive venue for any dispute relating to this agreement shall be Santa Clara County, California. CommMutual Rev 112707 Stephanie Frosch she/her/hers Storyteller Activist Educator phone: +1 954.235.4604 Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 134 of 26239 of 29 Exhibit “4” Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 135 of 27239 of 29 From: White, Lauren Gallo Sent: Thursday, March 26, 2020 6:21 PM To: Debi Ramos Cc: Kramer, David ; Willen, Brian ; Knoll, Kelly ; Peter Obstler ; Grubbs, Deborah ; Kathleen McCormick Subject: Re: Divino Group, LLC v Google LLC, et al. [IWOV-DOCSLA.FID349140] Debi: As I said in my letter, further discussion would be productive to identify whether the information Ms. Frosch wishes to disclose might be protected by her NDA with YouTube. That is because we share your position that “any protective order [cannot] be used to keep non-confidential information from being presented to the Court and the public.” Your continued argument and apparent insistence on running to court despite defendants’ desire to meet and confer—and despite the parties’ obligation to do so—are unwarranted and improper. Nevertheless, because defendants are not aware of any confidential information that Ms. Frosch might have learned at the September 14, 2017 event that might be protected by her NDA with YouTube, defendants have no intention of enforcing the NDA against her. While it would of course be premature to introduce testimony or other evidence at the current stage of the case, in the event this case gets past the pleadings, defendants will not enforce the NDA to prevent Ms. Frosch from testifying about her September 14, 2017 meeting. But YouTube’s willingness to release Ms. Frosch from her obligations is not license to you to misstate the record, make misrepresentations, or improperly offer evidence to the Court. Best regards, Lauren Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 136 of 28239 of 29 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 801 S. 4 Figueroa Street, Suite 2000, Los Angeles, CA 90017. 5 6 7 8 9 On April 20, 2020, I served true copies of the following document(s) described as PLAINTIFFS’ MOTION FOR LEAVE TO FILE SUR-REPLY BRIEF; DECLARATION OF PETER OBSTLER; DECLARATION OF STEPHANIE FROSCH; (Proposed) ORDER TO FILE SUR-REPLY on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST 10 BY MAIL ON 4/21/20: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for 11 collection and mailing, following our ordinary business practices. I am readily familiar with the practice of Browne George Ross LLP for collecting and processing correspondence for mailing. 12 On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with 13 postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at Los Angeles, California. 14 BY EMAIL ON 4/20/20: I served the document via email transmission to the email 15 address listed above and did not, within a reasonable period of time, receive notice of an unsuccessful submission. 16 I declare under penalty of perjury under the laws of the State of California that the 17 foregoing is true and correct. 18 Executed on April 20, 2020, at Los Angeles, California. 19 20 21 22 Kathleen McCormick 23 24 25 26 27 28 Case No. 5:19-cv-004749-VKD PROOF OF SERVICE Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 40 Filed 06/16/20 04/20/20 PagePage 137 of 29239 of 29 1 SERVICE LIST Divino Group LLC v. Google LLC and YouTube, LLC United States District Court - Case No. 5:19-cv-004749-VKD 2 3 4 INDRANEEL SUR Trial Attorney 5 Civil Division, Federal Programs Branch 1100 L Street, NW 6 Washington, DC 20530 7 202-616-8488 EMAIL: indraneel.sur@usdoj.gov 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 5:19-cv-004749-VKD Case 5:20-cv-O4011 Document 1 Filed 06/16/20 Page 138 of 239 Exhibit Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 139 of 239 Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/19/2019 3:51 PM Reviewed By: R. Walker Case #19CV340667 Envelope: 3671559 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA PRAGER UNIVERSITY, Case No.: 19CV340667 Plaintiff, ORDER AFTER HEARING ON OCTOBER 25, 2019 VS. GOOGLE LLC’ et a1 _ ’ (l) Demurrer by Defendants Goo le LLC and YouTube, LLC to thge (2) Motion by First Defendants- Amended Complaint Plaintiff Prager University for Preliminary Injunction The 19 above-entitled matter came on 20 am. 2! tentative ruling 22 The Court has reviewed and considered 23 0n the 24 November in Department oral 1 (Complex for hearing Civil Litigation), the was issued prior t0 the hearing. on Friday, October 25, 201 9 at 11:00 Honorable Brian C. Walsh presiding. The appearances A are as stated inthe record. the written submissions of all parties and has reflected argument of counsel, including by reviewing the transcript lodged by plaintiff on 14, 201 9. Being fully advised, the Court adopts the tentative ruling as follows: 25 26 This action arises from Prager University’s allegations that YouTube, LLC and its parent 27 company Google LLC have unlawfully restricted content 28 defendants’ social media and video sharing platform. Before the Court are defendants’ demurrer created by Prager on YouTube, Prager University v. Google LLC, et 31., Superior Court QfCalifi)mia. Coumjy afSanta Clara, Case No. 19CV340667 Order After Hearing on October 25, 2019 [Demurrer (o the First Amended Complaint and Molionfor Preliminary Injunction] 1 EXHIBIT "B" Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 140 of 239 t0 the operative First injunction. Amended Complaint (“FAC”) and Prager’s motion for a preliminary Both motions are opposed. Factual and Procedural Background I. As alleged in the FAC, Prager is a n011-pr0fit, 501(c)(3) tax exempt, educational organization that promotes discussion 0n historical, religious, and current events by disseminating educational videos intended for younger, student—based audiences between the ages 0f 13 and 35. (FAC, speakers who 10.) 1] The Videos depict scholars, sources, and other prominent often espouse Viewpoints in the mainstream 0f conservative thought. (Ibid) Defendants operate YouTube as the largest and most profitable mechanism for monetizing free speech and freedom 0f expression in the history 0f the world, generating $10 15 billion in annual revenue by monetizing the content 0f users like Prager post videos t0 YouTube. (FAC, its Videos t0 YouTube. (Id. at 11.) 1] Since its Who inception, Prager has posted t0 are invited t0 more than 250 of fl 39.) A. The Alleged Content Restriction Scheme T0 induce is users like Prager t0 upload Video content, defendants represent that a public place for free speech defined by “four essential YouTube freedoms” that govem the public’s use 0f the platform: 1. 2. 22 Freedom 0f Information: t0 We information and that Video believe everyone should have easy, Open access is a powerful force for education, building understanding, and documenting world events, big and small. 23 24 We Freedom 0f Expression: believe people should be able t0 speak freely, share opinions, foster open dialogue, and that creative freedom leads t0 116w voices, formats and possibilities. 3. Freedom 0f Opportunity: We believe everyone should have a chance to be discovered, build a business and succeed 0n their 25 own terms, and that people%not gatekeepel‘s—decide what’s popular. 26 4. 27 Freedom support, break interests We believe everyone should be t0 Belong: down barriers, transcend borders able t0 find communities 0f and come together around shared and passions. 28 Prager University v. Googfe LLC e! mi, Superior Court ofCalifbl'Jzia, County Qf‘szm Clara, Case Na 19CV340667 Order/lfrer Hearing 0n October25, 20] 9 [Demtm‘er 10 the First Amended Compt'amz (md Moxionfor Preliminary [Igjunctionj 2 Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 141 of 239 (FAC, 1] filtering speaker. Defendants fufiher promise that YouTube 12.) which “apply equally (Id. at 1] t0 all,” regardless is governed by content-based mles and 0f the viewpoint, identity, 0r source 13.) However, contrary t0 these representations, defendants censor, and restrain Video restrict, content based 0n animus, discrimination, profit, and/or for any other reason “0r (FAC, 1] 14.) According Censor” shows t0 Prager, an internal that defendants that profits memo have secretly decided hosting platform ...where the public media company 0f the is and presentation t0 “ ‘migrate’ entitled 110 reason.” “The Good away from [sewing invited t0 engage in freedom 0f expression” t0 “by promoting Defendants’ own, 01' Tm 56-65.) T0 effectuate become their prefen‘ed content the exercise 0f unfettered discretion t0 censor and curate othelwise public content.” their discriminatory practices, defendants a as] a through (1d. at use clandestine filtering tools, including algorithms and other machine-based and manual review tools, that are embedded with discriminatory and anti-competitive animus—based code, including code that and restrict content based 0n the also “ensure that the regulation scheme (1d. at 1] ... identity, Viewpoint, 0r topic YouTube employees charged 0f the speaker. is used (1d,, fl t0 identify 19.) With administering the content filtering and operate in a dysfunctional and politically panisan workplace environment.” 20.) Against this background, Prager’s rights under California law have been violated by two unlawful contenbbased restrictions: (i) “Restricted Mode,” a filtering protocol that defendants 20 use t0 block what they deem, in their sole, unfettered discretion, t0 be “inappropriate” for 21 “sensitive” audiences and 22 23 (ii) “Advertising Restrictions,” a content-based video advertising restriction policy that prohibits potential advertisers “inappropriate” for advertising. (FAC, fl] 17.) from accessing Videos that defendants deem Defendants use these mechanisms as a pretext 24 restrict 25 YouTube’s Terms 0f Service, Community Guidelines, and 26 They t0 and censor Prager’s Videos, even though the content 0f its videos complies with advertisers, while they fail t0 restri ct the content content produced by defendants themselves cn'teria for “sensitive audiences” and 0f other prefen‘ed users, content partners, and that is not compliant. (Id. at 1H] 18, 23.) Defendants 28 Prager Universiiy v. Google LLC, e! 01.. Superior Court qualy’bmia, Comuy ofSanm Clam, Case N0. 19CV340667 Order After Hearing on Oclober 25, 201 9 [Demurrer t0 tlie Firs! Amended Campfm'm rmd Marion fbr Preliminary Iry'mzction] 3 Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 142 of 239 have provided n0 rational basis for noncompliant content B. Restricted According well as people t0 g0 restricting Prager’s content while allowing similar unrestricted. (Id. at fl 25.) Mode t0 defendants, Restricted who wanted Mode is intended “t0 help institutions like schools as Mode 0n from their personal accounts, but it may administrators for libraries, schools, and other institutions estimate that about 1.5 percent 0f YouTube’s daily Views day) come from individuals using Restricted activated, a video’s Mode. 01‘ (01‘ (1d. at 1] 1] 68.) also Viewers can choose to t0 turn be turned 0n by system workplaces. (Ibid) Defendants approximately 75 million views per 69.) When Restricted Mode is name, creator 0r subject, and content, along with any other infonnation related t0 the video, are blocked, as if the Video did not exist 1] on YouTube With an option t0 better control the content they see choose an intentionally limited YouTube experience.” (FAC, Restricted 01' 0n the YouTube platform. (Id. at 68.) Defendants claim t0 Mode restrict content in Restricted Guidelines,” which identify five criteria for Mode based upon their “Restricted determining whether content warrants restriction: 1. Talking about drug use 2. Overly detailed conversations about 01‘ depictions 0f sex 0r sexual activity; Graphic descriptions 0f Violence, violent acts, natural disasters and tragedies, 0r even Violence in the news; Videos that cover specific details about events related t0 terrorism, war, crime, and 3. 4. 01' abuse, or drinking alcohol in Videos; political conflicts that resulted in death 0r serious injury, even if 110 graphic imagery is shown; LI] 22 6. Inappropriate language, including profanity; and Video content individual 01' that is gratuitously incendiary, inflammatory, 01‘ demeaning towards an group. 23 24 (FAC, 1] 70.) Videos are initially restricted through an automated filtem’ng algorithm that 25 examines ceflain “signals” 26 review 27 28 if a Video YouTube is “flagged” v. as inappropriate also publishes guidelines similar t0 nger University like the video’s metadata, title, its er (IL by public Viewers. (Id, 1] 71 “Community Guidelines” and “Age Based “Restricted Google LLC, and language, 0r following manual Mode Guidelines”; .) Restriction” however, content that complies with Superior Court qua/Ifomia, County OfSrmta Clam, Case N0. I9CV340667 OrderAfier Hearing 0n October 25, 20] 9 [Demurrer lo (he First Amended Complaint and Motionfor Preliminary Injunczimz] 4 Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 143 of 239 these guidelines may nevertheless be subject t0 Videos have never been age restricted (Id. at 1] found 01‘ Restricted t0 Violate Mode. (FAC, 1H] 72-73.) Prager’s YouTube’s Community Guidelines. 75.) Defendants have admitted that they nuances when [assessing] which Videos For example, 0n March 19, t0 make “mistakes make in understanding context and available in Restficted Mode.” (FAC, 1] 91 .) 201 7, they publicly admitted that they improperly restricted Videos LGBTQ community and posted 0r produced by members 0f the changed their policy, filtering algorithm, and manual review policies in response t0 complaints from this community. (Id. at 1H] 94-96.) However, Prager alleges that defendants have continued t0 improperly restfict videos by LGBTQ users, which is evidence 0f viewpoint animus. (Id. at 1N 97-98.) C. Advertising Restrictions Defendants also restrict users like Prager “from monetizing 0r boosting the reach or viewer distribution 0f [their] Videos.” (PAC, ostensibly govemed by the 1] “AdSense program 78.) Prager alleges that these restrictions are policies,” vague, ambiguous, and arbitrary” t0 the Restricted claims that, similar t0 their Mode which it suggests are “similar[ly] Guidelines. (Id. at W 78, 80.) Prager “mistakes” in applying “Restricted Mode,” defendants once “denied a reach boost 0r ad product” 0n the ground 0f “shocking content” based on a user’s sexual gender orientation and Viewpoint. (1d. at 1] 8 l .) It 01‘ alleges that the application 0f such an “inappropriate” 0r “shocking content” designation falsely and unfairly stigmatizes Prager as well. (Id. at 1] demonetized, 82.) it (However, while Prager alleges that certain 0f its videos have been does not allege whether defendants gave specific reasons for these actions 0r what those reasons were.) (See id. at 1] 84.) D. The Parties’ Disgute In July 0f 201 6, Prager discovered that defendants 25 26 27 28 videos through Restricted Mode. (FAC, have failed t0 offer restricted. (Id. at nger 101 .) It 17.) restricting user access t0 its raised the issue with defendants, but they any reasonable 0r consistent explanation W 101-1 0f 21 were. (Ibid) 1] were for why In 2016, at least 16 Prager videos By the time the FAC was filed in Prager’s Videos are being were May 0f 201 9, restricted; by 2017, a total the total had risen t0 80. (Id. Universiry v. Goog/e LLC, 6f (11., Superior Court ofCa/{fbmim County ofSanm Clam, Case N0. 19CV340667 Order Afler Hearing 0n October 251 2019 [Demurrer f0 the First Amended Complaint and Mon'onfbr Preliminm‘y Ily’mzctionf 5 Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 144 of 239 at 1] 127.) Prager’s Videos were either “restn'cted as t0 content, demonetized, or both.” (Id. at fl 116.) Defendants also discontinued Prager’s “ad grants” account for more than October 0f 2017. restricted Videos similar titles (Id. at by title, 118.) On pages 0f Article (Id. at I, Cal. Civ. Code. & Prof. fair dealing; (6) Violation 06064-LHK) 2018 federal action Code § 1471939, at *2.) 0n December 29, 2017. er seq; (5) Civil Rights breach 0f the implied covenant 0f 0f the Lanham Act, 15 U.S.C. Google v, It Unruh seq; (4) Violation 0f California’s Unfair Competition 17200 (Prager University WL 23.) § 51 er good (7) declaratory relief. its preferred content providers” with States Constitution; (3) Violation 0f the California Cal. Bus. and ‘H 3“ a chart listing section 2 0f the California Constitution; (2) Violation Ofthe First Law (“UCL”), faith PAC, Prager provides 2017, Prager sued defendants in federal court, asserting claims for Amendment 0f the United Act (“Unruh Act”), 9~17 0f the along with videos from defendants that are unrestricted. On October 23, (1) violation 1] six days in LLC (ND. Cal., § 1125 et seq; and Mar. 26, 2018, N0. 17-CV— filed a motion for a preliminary injunction in the (Id. at *3.) On March 26, 201 8, the federal court granted defandants’ motion t0 dismiss Prager’s federal claims and denied Prager’s motion for a preliminary injunction, finding that Prager had failed t0 state a claim for Violation 0f the First Amendment because Lanham did not allege state action, and had also fai1ed t0 state a claim under the Act. (Id. at *5-1 3.) t0 exercise 20 it Having dismissed supplemental jurisdiction over its all state 0f Prager’s federal claims, the court declined law claims, explaining: Here, the factors of economy, convenience, fairness, and comity support dismissal 0f Plaintiff‘s remaining state law claims. This case is still at the pleading stage, and n0 discovery has taken place. Federal judicial resources are conserved by dismissing the state law theon'es 0f relief at this stage. Fuflher, the Court finds 21 22 that 23 dismissal promotes comity as it enables California courts t0 interpret is an especially important consideration in the instant questions 0f state law. This case because Plaintiff asserts a claim that demands an analysis 0f the reach 0f 24 Alficle 1, section 2 0f the California Constitution in the age 0f social media and the Internet. (Prager University 27 28 v. Google LLC, supra, 2018 federal court’s ruling t0 the matter 011 Coufi 0f Appeal WL for the 147193 9, at *13.) Prager has appealed the Ninth Circuit, which heard argument in the August 27, 201 9. Prager University v. Goog/e LLC, et m". Superior Cour! Order Aflerh’em'mg 0n 0clober25, 20/9 [Dcmm'rer lo ofCaII'form’a, County ofSanm Clam, Case N0. 1'9CV340667 me Fimt Amended Complmm and MotionforPreliminaryInjunction] (J Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 145 of 239 Prager filed this action 0n January (l) Violation 0f Article (3) violation 0f the UCL; and On May 13, the (301,111 8, 2019, reasserting its state law claims for section 2 0f the California Constitution; (2) Violation of the I, (4) breach 0f the implied covenant 0f good and faith Unmh Act; fair dealing. entered a stipulated order establishing a briefing schedule for Prager’s anticipated motion for a preliminary injunction and defendants’ anticipated demun‘er and/or special motion On May to strike. injunction and filed the 20, pursuant t0 that order, Prager FAC, Which asserts the same moved four causes 0f action as complaint. Defendants filed their demurrer 0n June 28. Both matters are came on II. for hearing Demurrer t0 the by the Court t0 They contend fail t0 state (the displaying the terms 0f the various Code § fully briefed and state a claim. “CDA”) and by (Code by two provisions the First Amendment, a cause 0f action. Defendants’ request for judicial notice, which (Evid. FAC for failure t0 that Prager’s claims are barred 0f section 230 0f the Communications Decency Act 1-9). now original 0n October 25, 2019. each cause 0f action in the CiV. Proo, § 430.10, subd. (6).) web pages its FAC Defendants demur and othexwise for a preliminary 452, subd. (h); is unopposed, YouTube policies is GRANTED at issue see Pacific Employers 1m. C0. v. 1'11 as t0 public this action (Exhibits Slate ofCaZ. (1 970) 3 Cal.3d 573, 575, fn.l [where portions 0f agreement were attached t0 plaintiff‘s complaint, the balance Ofthat agreement was properly a subject ofjudicial notice]; Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285 [judicial notice 0f letter and media release was proper where, although they were not attached to the complaint, they formed a basis for the claims, and the complaint 23 24 excerpted quotes and summarized pafis in detail, thus complaint by reference t0 these docu111ents”].) Defendants’ request 25 transcript 0f a case 26 bound by 27 28 “it is essential that / management conference held the court’s comments 0r is we also evaluate the GRANTED as t0 a in the federal action, although the Court is not rulings in that case. (Evid. Code § 452, subd. ((1).) H / / / Prager University v. Google LLC, 6i 0]., Superior Cour! ofCaIffornia, County QquI7ta Clara, Case N0. 19CV340667 Order Afier Hearing 0n Oclober 25, 201 9 [Demurrer {0 the First Amended Complain! and Molion for Preliminary Injunction] 7 Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 146 of 239 A. Legal Standard The function 0f a demurrer Wholesale Elec. Etc. is t0 test the legal Fund v. Shearson Lehman Consequently, “[a] demurrer reaches only may be considered sufficiency 0f a pleading. (Trs, OfCapiraZ Bros. (1990) 221 Cal.App.3d 617, 621 t0 the contents .) of the pleading and such matters as under the doctrine ofjudicial notice.” (South Shore Land C0. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code truth Civ. Proc., § 430.30, subd. (3).) “It 0f the plaintiff s allegations conduct. they Thus, may be.” citations View not the ordinary function 0f a demurrer t0 test the the accuracy with Which he describes the defendant’s the facts alleged in the pleading are (Align Technology, Inc. v, deemed t0 be true, however improbable Tran (2009) 179 Cal.App.4th 949, 958, intemal and quotations omitted.) In ruling a 01‘ is 0n a demurrer, the allegations 0f the complaint must be t0 substantial justice Cal.App.4th 1, 6.) between where the 01' all facts properly pleaded, conclusions oflaw 0r fact.” (George California (201 1) 201 Cal.App.4th 1 1 immunity. (Casterson v. v. A demurrer will 12, 1120.) allegations and matters subject t0 judicial notice clearly disclose t0 recovery, including a statutory with Allergan, Inc. (2016) 247 v. Nevertheless, while “[a] demun'er admits not [admit] contentions, deductions quouthem the parties. (Glennen liberally construed, [it does] Automobile Club lie some defense 01' bar Superior Court {C(zrdoso) (2002) 101 Ca1.App.4th 177, 183.) B. Violation 0f the Califomia Constitution Because concepts related t0 the parties’ speech rights under the First Amendment and 22 California Constitution are important t0 other aspects 0f its analysis, the Court will first examine 23 whether Prager 24 25 states a claim for Violation As urged by 0f Article I, section 2 0f the California Constitution. defendants, “California’s free speech clause’°—like the First “contains a state action limitation.” (Golden Gateway Center v. Amendment» Golden Gateway Tenants 26 Assn. (2001) 26 Cal.4th 101 3, 1023.) However, the California Constitution’s protection 0f 27 speech has been interpreted 28 National Labor Relations Bd. (2007) 42 Ca1.4th 850, 862-863.) Most notably, in the mom broadly in this regard. (See Fashion Valley Mall, LLC v. Prager Univensig: v, Goggle LLC, e! at", Superior Cour! ofCalifomin, County QfSanm Clam, Case N0, 19CV340667 Order Afler Hearing 0n October 25, 20] 9 [Demurrer (0 the First Amended Complaint and Motionfor Preliminary [Iy'zmction] 8 Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 147 of 239 “groundbreaking” decision ofRobins v. Pruneyard Shopping Cenfer Supreme Court 0f California “departed from Constitution t0 privately owned shopping Tenants Assn, supra, 26 Cal.4th More began t0 at p. private apartment complex that v. Gateway Center v. Golden Gateway Przmeyard, Golden Gateway Center confirmed and was “not under the California Constitution, finding a tenants’ association sought to distribute leaflets in a freely open Golden Gateway Tenants Assn, supra, 26 Cal.4th t0 the speech clause 0f the California centers.” (Golden state action limitation was not satisfied where the requirement free 1016.) than 20 years after Robins define the scope 0f the 979) 23 Cal.3d 899, the Amendment jurispmdence 0f the United the First Supreme Court and extended the reach 0f the States (1 to the public.” at p. (Golden Gateway Center 1031.) Golder: v. Gateway Center looked reasoning ofRobz’ns for guidance, noting that “Robins relied heavily 0n the functional equivalence 0f the shopping center t0 a traditional public forum-the downtown 0r central business district,” and relied 0n “the public character 0f the property,” emphasizing “the public’s unrestricted access.” (Id. at Gateway Center held that this unrestricted access is a “threshold state action”: it, fomm.” without (Id. at p. pp. 1032—1033, internal citations and quotations omitted.) Golden requirement for establishing private property “is not the functional equivalent 0f a traditional public 1033.) In announcing this requirement, the opinion confirmed that it “largely f0110w[ed] the Court 0f Appeal decisions constming Robins,” including Planned Parenthood Wilson (199]) 234 Ca1.App.3d 1662. 20 (Id. at p. 1033.) Those decisions also emphasized Robins’s focus 0n “the unique character Ofthe modern shopping center and the public role 21 such centers have assumed in contemporary society” by effectively replacing “the traditional 22 town center business block, where 23 exercised and its 234 Cal.App.3d 25 Supreme Court 26 can constitute a public 27 28 historically the public’s First right t0 d0 so scrupulously guarded.” 24 at pp. in v. Amendment activity was (Planned Parenthood v. Wilson, supra, 1669—1670.) This concept was again emphasized by the California Fashion Valley, which repeatedly referenced “[t]he idea that private property fomm for free speech if ofpublic streets and sidewalks ....” supra, 42 Cal.4th at p. 858; see also it is open t0 the public in a (Fashion Valley Mall, id. at p. LLC v. manner similar t0 that National LaborRelaIions Bd, 859.) Prager University v. Goog/e LLC, er 0]., Superior Cour! QfCalg'form'a, County ofSanla Clam, Case N0. 19CV340667 Order A_fier Hearing 0n October 25, 20/ 9 [Dcmurrer t0 the First Amended Compfm'nl and Motionjbr Preliminary Injunction] t Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 148 of 239 With this fundamental principle in mind, it under the California Constitution. Prager contends town square where have opened their platform t0 the public its it apparent that Prager does not state a claim “YouTube that exchange ideas 0n matters 0f public citizens does not allege that is by advertising its has been denied access to the core access t0 “Restricted Mode” and YouTube’s does not persuade the Court that these equivalent 0f a traditional public like a the cyber equivalent 0f a interest” use for YouTube this and that defendants purpose. However, Prager sewice. Rather, it urges that advertising service has been restricted. Prager sewices are freely open fomm is town square 0r a t0 the public 01' are the functional central business district} Considering “the nature, purpose, and primary use 0f the property; the extent and nature 0f the public invitation t0 use the property; and the relationship between the ideas sought t0 be presented and the purpose 0f the propefiy’s occupants” (Albertson Cal.App.4th at p. 119), Mode” “Restricted children, patrons, Inc. v. Young (2003) 107 clear that these services are nothing like a traditional public forum. an optional service that enables users is 01' it is ’s, employees) view in order t0 avoid t0 limit the content that they (0r their mature content. Limiting content is the very purpose 0f this service, and defendants d0 not give content creators unrestricted access t0 01' experience 0f the core restricted t0 ...”]; YouTube service. M. Defendants correctly urge that even forum would be 23 between a shopping mall and the Internet 24 slope’ problems that are likely t0 surface v. onouTube’s 1] 80 [stated advertising sewice is purpose 0f advertising Willem, Exs. 7—9.) 22 25 Similarly, the use more open keep Google’s content and search networks safe and clean for our advertisers Declaration ofBrian 21 service exists t0 permit users t0 avoid the meet the preferences 0f advertisers. (See FAC, restrictions “is t0 20 The suggest that they will d0 so. it t0 recognize the core a dramatic expansion 0f Robins. Lz’nkedln Corporation (ND. Cal. is As one YouTube platfonn as a public federal court observed, “[t]he analogy imperfect, and there are a host ofpotential ‘slippery were [Robins] t0 apply t0 the Internet.” (hiQ Labs, Inc. 2017) 273 F.Supp.3d 1099, 11 I6 [observing that “[11]0 court 26 2’7 1 28 Prager Cites no authority demurrer, and that suppofls this position is inCOITeCt. its position that a court can never determine the applicability ofRobins 011 v, Tmmmell Crow C0. (1990) 223 Cal.App.3d 1562, 1577, fn. 4 [stating that scope ofRabins can be addressed 0n demun‘er in appropriate circumstances].) Here, the necessary facts are alleged in the FAC and/or subject t0 judicial notice, (See Savage Pragcr University v. Googfe LLC, et (71,. Superior Court 0fC‘a/{f0rm'a, County ofSanra Ciara, Case No‘ 19CV340667 Order After Hearing 0n October 25, 20] 9 [Demurrcr t0 zhe First Amended Complaint and Motion for Prelimimuy Injunction] IO Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 149 of 239 has expressly extended [Robins] t0 the Internet generally”], aff’d and remanded (9th 938 F.3d 985.) However the courts 0f this dominant, widely—used site like the core the facts alleged here. “Restricted selective platforms that more than the core YouTube that analogy completely on falls apart advertising service are new, inherently a traditional public forum. As discussed below, even have deemed web purposes 0f California’s “anti-SLAPP” statute require this Court sites t0 t0 forum in connection with an issue ofpublic interest” (Code Civ. t0 locations that clearly described in Golden Gateway Center. (See, e.g., Seelig v. be “public fomms” for extend Robins t0 encompasses speech “in a place open emphasis added), and has been applied of editorial “town square.” Finally, Prager contends that cases that statute 2019) analogy with regard t0 a service, these platforms necessarily reflect the exercise discretion rather than serving as an open However, the anti—SLAPP view service, the Mode” and YouTube’s d0 not resemble YouTube state ultimately Cir. its claim. t0 the public 0r a public Proc., § 425.1 6, subd. (c)(3), d0 not meet the standard Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807 [anti—SLAPP statute applied t0 comments made during on-air discussion 0n talk radio].) “[T]he protections afforded by the anti-SLAPP statute are not coextensive with the categories 0f conduct counterparts (Cal. Const, 01' speech protected by the First art. I, Murphy (2016) 4 Cal.App.5th determining whether conduct Amendment 1 is Amendment §§ 2—4).” (Industrial Waste 135, 1152.) 01‘ its California & Debris Box Service, “As our high court recently reaffirmed: v. “courts protected under the anti—SLAPP statute 100k not t0 First law, but t0 the statutory definitions in section 425.16, subdivision quoting City ofMontebello Inc. v. Vasquez (2016) l (e).’ ” (Ibid, Ca1.5th 409, 422.) Defendants’ demurrer t0 the first cause 0f action will accordingly be sustained without leave to amend. In addition t0 failing t0 state a claim under Robins action is balred by section 230 0f the v. Pruneyard, CDA for the reasons discussed below. this cause 0f (See In re Garcia (2014) 58 Ca1.4th 440, 452 [supremacy clause 0f the federal Constitution requires that 26 27 any conflicting state law give way t0 federal statute], citing U.S. Const, art. VI, Constitution, and the laws 0f the United States which shall be made in cl. 2 [“This pursuance thereof shall 28 Finger University v. Google LLC', et (11., Superior Court ofCahfomim County QfSama Clara, Case Na 19CV340667 Order Afier Hearing 0n October 25, 20] 9 [Demurmr (a the First Amended Comp/(Ifnl mm' Mofionfor Preffminmy [njmzcrion] I 1 Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 150 of 239 be the supreme law 0f the land; and the judges in every state shall be bound thereby, any thing in the Constitution 0r laws 0f any state t0 the contraIy notwithstanding”].) CDA Immunity B. Section 230(c)(1) 0f the computer sewice shall CDA provides that “[11]0 provider or user 0f an interactive be treated as the publisher 0r speaker of any information provided by another information content provider.” “§ 230 precludes 0011sz from entertaining claims that would place a computer service provider service provider liable for its in a publisher’s role. Thus, lawsuits seeking exercise 0f a publisher’s traditional editorial functions—such as deciding whether t0 publish, withdraw, postpone 0r alter content~are barred.” (Hassell Bird (2018) hold a t0 5 Cal.5th 522, 536, quoting Zeran v. America Online, Inc. (4th Cir. v. 1997) 129 F.3d 327, 330.) “The CDA—of which section 230 is a partwwas enacted in 1996.” (Delfino Technologies, Inc. (2006) 145 Cal.App.4th 790, 802.) “Its “primary goal was Agilent t0 control the exposure 0f minors t0 indecent material’ over the Internet.” (Ibid, quoting Barzel Cir. v. v. Smith (9th 2003) 333 F.3d 1018, 1026, superseded by statute 0n another point as stated in Breazeale v‘ Victim Services, Inc. (9th Cir. 2017) 878 F.3d 759, 766.) “Thus, an ‘important purpose 0f [the CDA] was t0 encourage [Internet] sewice providers t0 selfiregulate the dissemination of offensive materials over their services.’ ” (Ibid, quoting Zeran 20 129 F.3d at p. 331.) endeavor t0 restrict access t0 material 21 v. America Online, Ina, supra, Section 230(c)(2) consequently immunizes service providersz desmed who objectionable, providing that [n]0 provider 0r user 0f an interactive computer service shall be held liable 0n account 0f—~ 22 (A) any action voluntarily taken in good faith t0 restrict access t0 01' availability 0f material that the provider 0r user considers t0 be obscene, lewd, lascivious, filthy, 23 24 excessively Violent, harassing, or othem/ise objectionable, whether is constitutionally protected; 0r 01‘ not such material 25 (B) any action taken t0 enable 0r 26 0r others the 27 technical means make t0 available t0 information content providers restrict access t0 material described in 28 2 There is n0 dispute that defendants are providers 0f “an interactive computer service” under section 230. Prager Univeltsv'ry Googla LLC, e! (IL, Superior Cour! ofCalffornia, County oszmm Clara, Case No. 1'9CV340667 12 Order After Hearing on October 25, 20! 9 [Demim'er 1'0 [he Fins: Amended Complaint and Motionfbr Preliminmy Ity’uncrionj 1:. Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 151 of 239 paragraph (47 U.S.C. A (1).3 § 230(c)(2).) Internet free speech that that CDA “was second, but related, objective 0f the would be occasioned by t0 avoid the chilling effect upon the imposition 0f tom liability upon companies d0 not create potentially harmful messages but are simply intermediaries for (Delfino v. Agilenr Technologies, Ina, supra, 145 Cal.App.4th was responding history reflects that Congress t0 a pp. 802—803.) at New York trial 001111 their delivery.” The legislative case where “a service provider was held liable for defamatory comments posted 0n one ofits bulletin boards, based 0n a finding that the provider had adopted the role 0f ‘publisher’ by actively screening and editing postings.” (Barrett would forbid v. Rosemhal (2006) 40 Ca1.4th 33, 44.) “ ‘Fearing that the specter 0f liability deter service providers from blocking and screening offensive material,’ ” Congress “ ‘the imposition 0f publisher liability 011 a service and self~regulat0ry functions.’ ” (Id, quoting “ p. 33 “a strong demonstration 0f legislative Thus, section 230(c)(1) I .) online expression.’ supra, 40 Cal.4th by (Hassell ‘confer[s] broad commitment v. America Online, Ina, supra, 129 F.3d immunity 0n t0 the Internet intelmediaries’ “ in value 0f maintaining a free market for Bird, supra, 5 Cal.5th at p. 539, quoting Barrett v. ” at v. Rosenthal, at p. 56.) Of the two including ” Zemn provider for the exercise 0f its editorial provisions, section 230(c)(1) has been applied more frequently and broadly, courts in the Northern District 0f California t0 conduct indistinguishable from that alleged in this action. Notably, in Sz'khsfor Justice "SFJ”, Inc. 201 5) 144 F.Supp.3d 1088, 1090, qff’a’ v. sub nom. Sikhsfor Justice, Facebook, Inc. v. Inc. (ND. Facebook, Cal. Inc. (9th 22 Cir. 2017) 697 FedApp’x. 526, a human rights organization alleged that Facebook blocked 23 access t0 its page in India “0n its own 0r 0n the behest 0f the Govemment 0f India,” because of 24 discrimination 011 the grounds 0f race, religion, ancestry, and national origin. Quoting Barnes v. 25 Yahool, Inc. (9th Cir. 2009) 570 F.3d 1096 and FairHouSing Council ofSan Fernando Valley 26 R00mmates.C0m, LLC (9th Cir. 2008) 521 F.3d 1 v. 157, the court reasoned that 27 28 3 It is widely agreed that section 230(c)(2)(B)’s reference to “paragraph (1)” is an error, and the provision should be interpreted t0 refer 10 section 230(c)(2)(A) 0r “paragraph (A).” (See, e.g., Enigma Sqfnwn‘e Group USA, LLC v, Malwarebytes, Inc, (9th Cir. 2019) 938 F.3d 1026, 1031, fn. l.) Prager University V. Goog/e LLC, e! (7L Superior Court QfCalffomial County QfSarzta Ciam, Case N0. 13 19CV340667 Order Aflcr Hearing 0n October 25, 20] 9 [Dermzrrer 10 (lac First/imended Complaint alm’ Motionfor Preliminary [ijnnclion] Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 152 of 239 IQ [p]ublication involves reviewing, editing, and deciding Whether t0 publish 0r t0 withdraw from publication third-party content. Thus, a publisher decides whether to publish material submitted for publication. It is immaterial whether this decision comes in the form 0f deciding what t0 publish in the first place 01' what t0 remove among the published material. In other words, (my activity that can be boiled down to deciding whether t0 exclude material that third parties seek t0 post online is pelforce immune under section 230. (SikhsfarJustice “SF Inc. Facebook, Inc, supra, 144 F.Supp.3d v. at p. 1094, emphasis added, internal citations and quotations omitted.) This approach has been endorsed Circuit. (See Riggs v. MySpace, Inc. (9th Cir. 201 1) 444 FedApp’x. 986, 987 properly dismissed claims “arising from MySpace’s decisions its social t0 delete supra, 521 F.3d t0 deciding at v. whether here—“to t0 exclude material that third parties seek restrict 01' 230.” (Doe II v. consensus v. [district couIT Riggs’s user profiles 0n Roommates. Com, LLC, pp. 1170-1 171 for the proposition that “any activity that can be boiled t0 post under section 230”].) California opinions have similarly reasoned Hassel] the Ninth networking website yet not delete other profiles Riggs alleged were created by celebrity imposters,” citing Fair Housing Council ofSan Fernando Valley issue by make is perforce that the “type at by section 561, 572-573 [describing “the general 230 immunity broadly, extending from Zeran Bird, supra, 5 Ca1.5th at p. immune 0f activity” available certain material”—“is expressly covered MySpace Inc. (2009) 175 Cal.App.4th t0 interpret section online down ...”]; see also 537 [California “courts have followed Zeran in adopting a broad View of section 230’s immunity provisions”].) This interpretation was recently applied again by the Northern District in Federal Agency 18—CV-07041-LHK) 22 20, 2019, N0. 23 section 230(c)(1) 24 company’s account and page due 25 the 2016 United —-— F.Sup.3d ofNews LLC V. Facebook, ---, immunized Facebook from claims 2019 WL 3254208, where arising t0 its alleged control Inc. from by an its entity it (ND. Cal., July was held that removal 0f a Russian found t0 have interfered in States presidential election.“ 26 27 28 4 See also Langdon v. Google, Inc. (D. Del. 2007) 474 F.Supp.2d 622, 630-631 (applying immunity under section 230(c)(1) and/or (2) where plaintiff alleged defendants refused t0 display ads 0n his web pages criticizing the North Carolina and Chinese governments based on political viewpoint discrinflnation); Levitt v. Yelp! Inc. (ND. CaL, Oct. 26, 2011, No. C-10—1321 EMC) 2011 5079526, at *7—9, aff‘d (9th Cir. 2014) 765 F.3d 1123 (section 230(c)(1) immunity applied lo allagations that Yelp manipulated plaintiffs’ user reviews in order t0 induce them to pay for WL Prager University v. Google LLC, e! (1L, Superior Court ofCa/{fomim County ofSanra Clam, Case N0, 14 19CV340667 Order After Hearing 0n October 25, 201 9 [Dcmurrer [0 r/ze Firs! Amended Complaint and Motionfor Preliminary Ily'unctfon] Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 153 of 239 Consistent with the language 0f section 230(c)(1), these cases d0 not question the sewice provider’s motive in deciding t0 remove content fi‘om its service. While Prager contends that section 230(c)(1) immunity should not be applied where a plaintiff alleges a service provider acted in bad faith 0r t0 stifle competition, it cites n0 persuasive authority adopting this intelpretation.5 Coulis have expressed greater concern with the issue 0f motive when interpreting section 230(c)(2), perhaps because paragraph (A) 0f that provision expressly includes a “good faith” requirement. Here, defendants rely 0n paragraph (B) of that provision, which they section 230(c)(1)—does not require 2009) 568 F.3d 1169, 1 176-1 1’77, Internet security software that plaintiff had good In Zango, Inc. faith. v. Alphabet deemed Inc. Kaspersky Lab, Inc. (9th Cir. the Ninth Circuit applied section 230(c)(2)(B) t0 a provider 0f the plaintiff" S software t0 be “malware,” noting that the waived the issue 0f “whether subparagraph advertising); Lancaster v. urgeahke (ND. which has no good (B), faith language, WL 2016, N0, 15—CV-05299-HSG) 2016 3648608, at *2removal 0f Plaintiffs’ Videos”); Green v4 YouTube, LLC (D‘N.H., Mar. 13, 2019, N0. 18—CV-203-PB) 2019 1428890, at *6, report and recommendation adoptedsub Ham. Green v. YouTube, Inc‘ (D,N.H., Mar. 29, 2019, N0. 18—CV-203-PB) 2019 1428311 (applying immunity under section 230(c)(1) where plaintiff alleged his accounts were improperly shut down); Brittaz'n v. Twitler, Inc, (ND. Cal., June 10, 2019, N0. 19—CV—001 14-YGR) 2019 2423375, at *3 (section 230(c)(1) immunity applied where plaintiff alleged improper suspension of his Twitter accounts and that Twitter “limit[ed] users who reference new/competing networks and/or utilize Third Party API services”); King v. Facebook, Inc. (ND. (331., Sept. 5, 2019, No. 19—CV-01987—WHO) 2019 4221768 (section 3 (“§ 230[(c)(1) of the Cal., July 8, CDA prohibits any claim arising from Defendanls’ WL WL WL WL 230(c)(1) immunity applied t0 theory that “Facebook has violated its (Telms 0f Service] in removing [plaintiff s] posts and suspending his account, and that Facebook treats black activists and their posts differently than it does other groups, particularly white supremacists and cefiain ‘ha1e groups’ ”). 2O 5 2 22 23 To LLC 1d Google, Inc. (MD. Fla. 2016) I88 F.Supp.3d 1265 adopts Prager’s does so by conflaling section 230(c)( 1) and section 230(c)(2) with n0 analysis. The Court does 1101 find this persuasive. While a subsequent, unpublished opinion in that action, e—venhzres Worldwide, LLC v. Google, Inc, (MD. Fla., Feb. 8, 2017, N0. 214CV646FTMPAMCM) 2017 2210029, *3-4 reasoned that applying section 230(c)(1) to service providers’ editorial decisions regarding plaintiff’s a own content would swallow “the more specific immunity in (c)(2)” with its good faith requirement, the opinion the extent e—ventm‘cs Worldw‘de, View, it WL based on the 24 persuade the reasonmg. went 0n t0 grant summary judgment Amendment’s protection 0f editorial judgments, “no matter the motive,” This case does not Court t0 part ways with the courts that apply section 230(c)(1) to [he same end based 0n the same First 25 Similarly, Levitt v. Yelpllnc‘ (ND. C211,, Mar. 22, 201 1, N0. be held liable for 26 “a[] close[] question 27 ultimately did not resolve the issue as 28 subsequent opinion in that case, Levitt v. Yelp! Inc. (ND. 5079526, *9 held that section 230(c)(1) does not include 0f coercing businesses whether Yelp 10 may C WL MHP) 2011 13153230, at *9 deemed it removal ofpositive reviews for the alleged pumose 10—1321 its purchase advertising?” considering that this theory implicated bad faith. The court it found the complaint otherwise failed t0 state a cause 0f action. A C211,, a OcL good 26, 2011, No. C-10—1321 faith requirement, WL EMC) 2011 and applied “even assuming have adequately pled allegations stating a claim 0f an extortionate threat with respect to Yelp’s alleged manipulation Ofuser reviews.” The Court finds the reasoning 0f the subsequent opinion more persuasive. Plaintiffs Prager Univem‘ly v. Google LLC, et (11., Superior Court Order Aflel' Hearing 0n October 25, 20] 9 [Demi/Prer lo County ofSanta Clam, Case Na [90/340667 Amended Complaint and M’otionfor Preliminary Injlmction] a_f‘Calf/bmia, the Firs! 15 Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 154 of 239 should be construed implicitly t0 have a good faith component like subparagraph (A).” The concurring opinion expressed concern with extending immunity beyond the facts present in that 03561 Congress plainly intended t0 give computer users the tools t0 filter the Internet’s deluge 0f material users would find objectionable, in part by immunizing the providers 0f blocking software from liability. See § 230(b)(3). But under the generous coverage of § 230(c)(2)(B)’s immunity language, a blocking software provider might abuse that immunity t0 block content for anticompetitive pulposes 0r merely malicious whim, under the cover 0f considering such material “otherwise obj ectionable.” (Zango, Inc. Noting that v. at its KasperS/gj Lab, Ina, supra, 568 F.3d “[d]istrict courts at p. 1178 (0011c. opn. ofFisher, J.).) nationwide have grappled with the issues discussed in Zango’s majority and concurring opinions, and have reached differing results,” the Ninth Circuit recently held that a service provider’s intent where a plaintiff alleges blocking may be relevant under section 23 0(c)(2)(B): by a survive dismissal. (Enigma Sofnvare specifically, direct competitor for anticompetitive purposes, Group USA, LLC v. Malwarebytes, Here, defendants’ creation 0f a “Restricted Mode” t0 its Inc. (9th Cir. claims 2019) 938 F.3d 1026.) choose a more limited experience 0f the YouTube service that is allow sensitive users t0 voluntarily exactly the type 0f self—regulation Congress sought t0 encourage in enacting section 230, and fits within section 230(c)(2)(B)’s immunity for “any action taken users, “the technical be obscene, means t0 enable restm'cting access t0 material which contains a “good 24 t0 material that 25 material enumerated make available to others,” namely, 0n faith” its 0r othelwise objectionable.” Rather than unilaterally core platform as contemplated by section 230(c)(2)(A)— requirement—defendants allow users to voluntarily defendants deem objectionable for the stated reason by the YouTuba t0 restrict access t0” material “that the provider 0r user considers t0 excessively violent, 23 01’ statute, it may be that, like the inappropriate for young 01’ restrict access categories 0f sensitive viewers.“ The 26 27 6 28 Consistent with these circumstances, a page discussing options for administrators employing “Restricted Mode,” which was submitted by Pragel' in connection with its motion for preliminary injunction, indicates that “[a]dministralors and designated approvers can 110w whitelisl entire channels,” in addition to individual videos, t0 ensure a channel is “watchable by your users” (Declaration 0f Peter Obstler, Ex. L.) Thus, it, appears that users can Pragcr University V. Google LLC, ei (11‘, Superior Court ofCalgfbrnia, County '6 ofSanm Clam, Case N0. l 9CV340667 Order After Hearing 0n October 25, 20] 9 [Demurrer t0 fire First Amended Complaint and Morianfor Preliminmjy Injunction] Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 155 of 239 Court Views majority in this as a critical difference Enigma] who between the two provisions and disagrees with the ignore the plain language 0f the statute by reading a good faith limitation into section 230(c)(2)(B). (See Ina, supra, 938 F.3d at p. 1040 opn. 0f Rawlinson, (dis. are in conflict with our recognition in ‘the Congressional goals for As Finding in a statute CDA Zango that the immunity’ as expressed we the district court cogently noted, means and means Enigma Software Group USA, what it immunity here [“The majority’s policy arguments broad language of the Act in the Malwarebytes, language 0f the is consistent With statute. [Citation] ‘must presume that a legislature says in a statute what says there.’ is J.) LLC v. it ”].) also consistent with cases that apply it in indistinguishable circumstances based 0n section 230(c)(1), and with their reasoning, which recognizes that challenges t0 a sewice provider’s editorial discretion “treat[]” the provider “as a publisher.” (See Sikhsforjustice ”SFJ”, Inc. [applying section 230(c)(1) t0 claim under Title Agency quews LLC v. claims under Title II Facebook, v, H WL 3254208 0f the Civil Rights Act of 1964, the fair dealing.) supra, 144 F.Supp.3d 1088 of the Civil Rights Act 0f 1964]; Federai Faceboo/c, Inc, supra, 201 9 implied covenant 0f good faith and 1120., [applying section 230(c)(1) t0 Umuh Act, The Court finds and for breach 0f the that immunity under section 230(c)(1) also applies here, t0 the allegations involving both “Restricted Mode” and defendants’ advertising sewice. I9 2O 21 While the Court understands Prager’s argument should have a good faith requirement, statute. (See Hassell v. this argument Bird, supra, 5 Cal.5th at p. is that all three provisions 0f section 230 contrary t0 the plain language 0f the 540 [noting that Barrett v. Rosenthal, supra, 22 40 Cal.4th 33 voiced “qualms” 23 immunity 24 concerns were 0f 110 legal consequence” where principles 0f statutory intelpretation compelled a for those who that Zemn’s interpretation 0f section 230 provides blanket intentionally redistribute defamatory statements, but held “these 25 26 specifically override dei‘endants’ decisions t0 disable certain videos 01‘ channels in “Restricted Mode” is a tool made available t0 users rather than a unilateral ban. Moda,” confirming that “Restricted 28 7 See People v. Williams (1997) 16 Cal.4th 153, 190 (“Decisions Oflower federal courts intemreting federal law ars not binding 0n state c0urts.”); Elliott u Albright (1989) 209 Cal.App.3d 1028, 1034 (although at times entitled t0 great weight, the decisions 0f the lower federal courts 0n federal questions are merely persuasive). Finger Urlivcrsily v. Google LLC, er 01,, Superior Com? ofCalifbmia, County QfSanm Clam. Case NO‘ 19CV340667 OrderAfler Hearing 0n October 25, 2019 [Demurrer I0 {he First Amended Complain! (md Motionfor Preliminary Injunction] 17 Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 156 of 239 broad construction].) And embodied by section 230, Inc. (ND. while it is there are Ca1., Oct. 26, 201 not this Court’s role t0 judge the good reasons N0. C-10-1321 1, t0 support EMC) 2011 it. As the Wisdom 0f the policy coufi in Levitt v. Yelp! WL 5079526 reasoned, traditional editorial functions often include subjective judgments informed by and financial considerations. [Citation] Determining what motives are permissible and what are not could prove problematic. Indeed, from a policy perspective, permitting litigation and scrutinfizing] motive could result in the “death by ten thousand duck-bites” against which the Ninth Circuit cautioned in interpreting § 230(c)(1). [(Faz‘r Housing Council 0f San Fernando Valley v. political RoommareSCom, LLC, supra, 521 F.3d One 0f Congres[s]’s purposes 0f imposing 1174.)] in enacting § providers liability 011 at p. 230(0) was t0 avoid the chilling effect both safeguarding by the “diversity 0f political discourse and myriad avenues for intellectual activity” on the one hand, and “1‘61110V[ing] disincentives for the development and utilization 0f blocking and filtering technologies” 0n the other hand. see also S.Rep. N0. 104~ §§ 230(3), (b); 86 (1996) (C0nfRep.), available at 1996 pulpose 0f section 230 t0 protect providers from 230, at WL 54191, at *[194] (describing liability “for actions t0 restrict 0r to enable restrictfion] 0f access t0 objectionable online material”). For that reason, “[C]lose cases 0f section must be resolved in favor 0f immunity, lest we cut the heart out 230 ....” [(Faz'r Housing Councii 0f San. Fernando Valley v. RoommatesCom, LLC, As supra, 521 F.3d at p. 1174.)] by the case at bar, finding a bad faith exception t0 immunity under could force Yelp t0 defend its editorial decisions in the future on a § 230(c)(1) case by case basis and reveal how it decides what t0 publish and what not t0 publish. Such exposure could lead Yelp t0 resist filtering out false/unreliable reviews (as someone could claim an improper motive for its 01' illustrated decision), t0 immediately remove a1] negative reviews about which businesses complained (as failure t0 d0 so could expose Yelp t0 a business’s claim that Yelp was stronganning the business for advertising money). The Ninth Circuit has made it clear that the need t0 defend against a proliferation 0f lawsuits, regardless 0f whether the provider ultimately prevails, undermines the pulpose 0f section 230. (Levitt v. Yelp! Ina, supra, 201 particularly salient here, 1 WL 5079526, at *8—9.) In the Court’s view, these concerns are where the challenged sewices are by definition more curated than 25 defendants’ core service and could not exist without more robust screening by defendants. 26 In opposition t0 defendants’ demurrer, Prager cites a number 0f cases that affirm the 27 principle applied in Fair Housing Council Qf‘San Fernando Valley v. RoommatesCom, LLC, 28 supra, 521 F.3d 1 157, which held that a service provider is not entitled t0 CDA immunity with Prager Universifiy v. Goog/e LLC, e! (IL, Superior Cour! 0fCa/{fbrnim County ofSanta CM/‘a, CaSe N0. 1 9CV340667 Order Afler Hearing 0n 00:0 ber 25, 201 9 [Demm‘rer‘ Io {he First A mended Conqulaim‘ (md Motionfbr Preliminmy Injunction] 18 Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 157 of 239 regard t0 content develops it itself. However, this principle is inapposite here. allege that defendants developed any 0f Prager’s content 0r appended any the contrary, they allege the content simply demonetized. Applying became completely CDA Prager does not commentary t0 itfito Mode” 0r was invisible in “Restricted immunity under these Circumstances does not conflict with Roommates. (See FairHousing Council ofSan Fernando Valley supra, 521 F.3d at p. 1163 [in enacting CDA immunity, v. Roommates, Com, LLC, “Congress sought t0 immunize the removal 0f user-generated content, not the creation 0f content”].)8 CDA Finally, Prager contends that applying prior restraint 011 its speech in Violation 0f the First immunity here would constitute an unlawful Amendment. However, already held that defendants’ conduct does not Violate the First a federal Amendment, and agrees With that analysis for the reasons discussed in connection with its this coufi has Court analysis 0f Prager’s claim under the California Constitution. Moreover, Prager does not allege that defendants prevented it from engaging in speech, even videos were excluded from “Restricted The C0111“: 011 their Mode” own p1atf01‘m——again, it contends that certain and/or were demonetized. consequently finds that section 230(c)(2v)(B) bars Prager’s claims related t0 “Restricted Mode” and those based 011 its section 230(c)(1) bars own promises and all 0f its claims, with the possible exception 0f representations, which are discussed below.9 C. Breach Ofthe Implied Covenant 0f Good Faith and Fair Dealing and Fraud the UCL Under 20 Finally, Prager correctly urges that 21 the some California authority holds section 230(c)(1) 0f CDA does not apply t0 claims based 0n a defendant’s own promises and representations t0 a 22 plaintiff, rather than its role as a publisher. (See Demetriades v. Yelp, Inc. (2014) 228 23 Cal.App.4th 294, 3 13 [this immunity does not apply where “plaintiffseeks t0 hold Yelp liable v. Bird, supra, 5 24 for its own statements regarding the accuracy 0f its filter”]; but see Hassell 25 Cal.5th at p. 542 [disapproving 0f “creative pleading” in an attempt t0 avoid section 230 26 27 28 8 Although it does 1101 bring a claim for defamation, Prager appears t0 suggest that defendants have defamed it by removing its content from “Restricted Mode” 0r demonetizing it. Such a claim would likely be foreclosed by the ruling in Bartholomew v. YouTube, LLC. (2017) 17 Cal,App.5th 1217, 1234. 9 The Court thus does not address defendants’ argument that Prager’s claims are barred by the First Amendment. Prager University v‘ Google LLC, er a/,, Superior Cour! QfCaig'fomia, County 19 ofSanfa Clam, Case N0. 19CV340667 OrderAfrer Hearing (m October 25, 20/ 9 [Demurrer I0 the First Amended Complain! (1nd Motionfor Preliminmj) Injunction] Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 158 of 239 immunity].) This authority does not apply t0 the Court’s finding 0f immunity under section 230(c)(2)(B). In any event, Prager’s claims asserting this type 0f theory—namely, breach 0f the implied covenant 0f good 0f the faith and fair dealing and its its claim for claim under the fraud prong UCL¥d0 not state a cause 0f action. Prager does not and cannot state a claim for breach 0f the implied covenant 0f good faith and fair that “YouTube dealing in light 0f the express provisions 0f YouTube’s Terms 0f Service, which provide YouTube reserves the right t0 t0 “discontinue Willem, Ex. 1; remove Content without prior notice” and which any aspect 0f the Sewice Songfi Inc. v. Googfe, Inc, (ND. at also allow any time.” (See Declaration of Brian Cal. 201 5) 108 F.Supp.3d 876, 885 [plaintiff could not state a claim for Violation 0f the covenant 0f good faith and fair dealing based 0n content removal in light 0f YouTube’S Terms 0f Service].) Similarly, YouTube’s AdSense Telms 0f Service reserve ofBrian Willem, Ex. EMC) 201 8 0f good WL faith 8; the right “t0 refuse 0r limit your access t0 the Services.” (Declaration see Sweet 1184777, and fair at v. Google Inc. (N.D. Ca1., Mar. 7, *9-10 [plaintiff could not state a claim for Violation 0f the covenant dealing based 0n demonitization in light 0f similar resewation 0f rights in YouTube’s Partner Program Telms].) “[C]0ufis are not at liberty t0 odds with a contract’s express grant 0f discretionary power except instances result in when Sweet 22 23 24 25 26 27 28 v. forth that is t0 the Inc. v, Wairs (1 not the case here, and Prager does not contend that Google Ina, supra, 2018 v. UCL fraud claim, Yelp, Ina, supra, makes a claim t0 the extent it is puffery,’ 1053]; 228 Cal.App.4th at p. 3 11 [“ ‘a as t0 the “specific 0r absolute charactefistics quoting Newcal Industries, Inc. nger University v. it is. (See based 0n the “four essential freedoms” set puffel‘y. statement that 0f a product,” actionable statement 0f fact while a general, subjective claim about a product ” 995) 41 WL 1184777, at *9-10 [applying Third Storyl) above and similar statements, these statements are non—actionable Demetriades at in those relatively rare an unenforceable, illusory agreement.” (Third Story Music, As imply a covenant directly reading the provision literally would, contrary t0 the parties’ clear intention, Cal.App.4th 798, 808.) That 21 2018, N0. 17-CV-03953— v. (See is quantifiable, may be an is 11011-acti011able Ikon Office Solution (9th Cir.2008) 513 F.3d 1038, Google LLC, supra, 201 8 WL 1471939, at *1 1 [“None 0f the Prager University v. Google LLC, er 0]., Superior Court QanI’g'fO/‘m'a, County 20 omelm Clara, Case N0. [90/340667 Order After Hearing 0n Octo ber 25, 201 9 [Denmrrer £0 the First Amended Complaini and Motionfor Pl'eiimmmy Injunction] Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 159 of 239 statements about YouTube’s Viewpoint neutrality identified by Plaintiff resembles the kinds 0f ‘quantifiable’ statements about the ‘specific or absolute characteristics of a product’ that are Lanham actionable under the Act.”].) Prager also alleges that defendants represented that “the ‘same standards apply equally t0 all’ when While comes it t0 the content regulation statement this 228 Cal.App.4th is at p. 3 0n YouTube.” (FAC, 1] 85; see also arguably more than mere puffing (see Demetriades 1 1-3 12), Prager does not allege that it v. id. at ‘1] 13.) Yelp, Ina, supra, suffered a loss 0f money 01‘ property as a result ofits reliance 0n this statement. “There are innumerable ways in which economic injury from unfair competition may be shown,” including where present 0r future propefiy interest diminished.” (sz'kser Corp. (201 1) 51 Ca1.4th 310, 323; see alsoAIborzz'an Cal.App.4th 29, 38 made payments 0n t0 brand, reputation, requirement if there Superior Court (Benson) JPMorgan Chase Bank, NA. (2015) 23S “unlawful” plaintiffs established standing by alleging diminished caused by defendant’s false negative reporting credit score never [UCL v. v. a plaintiff “ha[s] a the loan at issue].) and goodwill” The “lost t0 credit agencies, income, reduced viewership, and damage Prager alleges (FAC, that even where they 1] 157) would certainly satisfy this were a causal connection between Prager’s alleged reliance 0n defendants” statement in participating in the YouTube service and these harms. However, these injuries cannot have resulted from Prager’s decision t0 use YouTube: they could only have been caused by YouTube’s Universizj/ Google LLC, 51mm, 201 8 v. alleged that later decisions t0 restrict and/or it ‘has been 01‘ is likely t0 WL demonetize Prager’s content. (See Prager 1471 93 9, at *1 be injured as the 1—12 [“Plaintiff has not sufficiently result 0f the’ statements about YouTube’s 22 viewpoint neutrality. [Citation] 23 caused by Defendants’ decisions t0 limit access t0 some 0f Plaintiff’s Videos.”].) These 24 25 decisions by YouTube could Plaintiff asserts that it As discussed above, any harm that Plaintiff suffered not have been relied 0n by Prager. (See I’d. at *1 l was later [“Although has suffered injury in the form 0f ‘lower viewership, decreased ad revenue, a reduction in advertisers Willing t0 purchase advertisements 27 Videos, diverted viewership, and 28 Plaintiff’s damage complaint suggests that this t0 its brand, reputation harm flowed directly shown on and goodwill,” Plaintiff” s nothing in fi‘om Defendants’ publication 0f Prager University v. Googie LLC, e! m". Superior Cour! Q/‘Ca/z’fbmia, Comtzjv ofSanta Clara, Case N0. 19CV340667 2] Order Afier Hearing 0n October 25. 201 9 [Demurrer 10 the First Amended Complain: and Motion fiN' Pre/iminmy Ily'lmcn‘on] Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 160 of 239 their policies and guidelines. Instead, any harm that Plaintiff suffered was caused by Defendants’ decisions t0 limit access t0 would appear v. some 0f Plaintiff’s Videos ....”].) to conflict with principles 0f defamation Moreover, recognizing law as recently discussed in this theory Bartholomew YouTube, LLC. (2017) 17 Cal.App.5th 1217. Prager thus and fair dealing 01' fails t0 state a cause of action based 0n the implied covenant 0f the fraud prong 0f the good faith UCL. D. Conclusion and Order For all these reasons, the demumer t0 the first through fourth causes 0f action is SUSTAINED WITHOUT LEAVE TO AMEND. III. Motion As for Preliminary Injunction discussed above, Prager has not merits in this action. Its motion for Francisco NewspaperPrinting C0. IT IS Dated: a v. shown a reasonable probability preliminary injunction is 0f success on the consequently DENIED. (See San Superior Court (Miller) (1985) 170 Cal.App.3d 438, 442.) SO ORDERED. flgfim $ C. Honorable Brian C. Walsh Judge 0f the Superior Court 21 22 23 24 25 26 27 28 Prager Universal) v. Googlc LLC, er 171,. Superior Court ofCalffbmia, County 22 ofSa/Im Clam, Case N0. l9CV340667 OrderAfler Hearing 0n October 25, 2019 [Demzm'er 10 the First Amended Compiaim and Moiionfor Preliminary Injunction] Case 5:20-cv-O4011 Document 1 Filed 06/16/20 Page 161 of 239 Exhibit Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 46 06/16/20 Filed 05/08/20 Page Page 162 of1239 of 3 7 JOSEPH H. HUNT Assistant Attorney General ERIC WOMACK Assistant Branch Director INDRANEEL SUR indraneel.sur@usdoj.gov D.C. Bar No. 978017 Trial Attorney Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 616-8488 Facsimile: (202) 616-8470 8 Counsel for the United States of America 1 2 3 4 5 6 9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DIVINO GROUP LLC, a California limited liability company, CHRIS KNIGHT, an individual, CELSO DULAY, an individual, CAMERON STIEHL, an individual, BRIAANDCHRISSY LLC, a Georgia limited liability company, BRIA KAM, an individual, CHRISSY CHAMBERS, an individual, CHASE ROSS, an individual, BRETT SOMERS, an individual, and LINDSAY AMER, an individual, STEPHANIE FROSCH, an individual, SAL CINEQUEMANI, an individual, TAMARA JOHNSON, an individual, and GREG SCARNICI, an individual, Plaintiffs, vs. GOOGLE LLC, a Delaware limited liability company, YOUTUBE, LLC, a Delaware limited liability company, and DOES 1-25, Case No. 5:19-cv-004749-VKD UNITED STATES OF AMERICA’S NOTICE OF INTERVENTION TO DEFEND THE CONSTITTUTIONALITY OF 47 U.S.C. § 230(c) Action Filed: August 13, 2019 Trial Date: None Set Rule 5.1 Notice Filed: December 20, 2019 Defendants. 24 25 26 27 28 UNITED STATES’ NOTICE OF INTERVENTION Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Tel: (202) 616-8488 EXHIBIT "C" Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 46 06/16/20 Filed 05/08/20 Page Page 163 of2239 of 3 1 Under Federal Rules of Civil Procedure 5.1(c) and 24(a)(1), and in accordance with 2 the authorization of the Solicitor General of the United States, the United States hereby 3 intervenes in this action for the limited purpose of defending the constitutionality of Section 4 230(c) of the Communications Decency Act of 1996 (“CDA”) (Pub. L. No. 104-104, § 509, 5 codified at 47 U.S.C. § 230(c)). 6 On December 20, 2019, Plaintiffs filed a notice of constitutional challenge regarding 7 47 U.S.C. § 230(c) (Doc. 21). In that Notice, Plaintiffs stated that their pleadings allege that 8 “Section 230(c) does not, and cannot, apply in this case, under the plain language of the 9 statute or under the Constitution, to prevent the Plaintiffs from seeking legal redress for 10 harms and injuries caused by Defendants’ discrimination against them and other similarly 11 situated Plaintiffs and users of YouTube.” Id. at 3. Moreover, in opposition to the motion 12 to dismiss the operative complaint filed by Defendants (Doc. 25), Plaintiffs in their brief filed 13 February 24, 2020 made certain contentions regarding the constitutionality of 47 U.S.C. § 14 230(c) (Doc. 28). The Court has not yet certified a constitutional question under Rule 5.1(b) 15 and 28 U.S.C. § 2403. 16 The United States is entitled to intervene in this action under the Federal Rules of 17 Civil Procedure and by statute. Rule 5.1(c) permits the Attorney General to intervene in an 18 action where, as here, the constitutionality of a federal statute is challenged. See Fed. R. Civ. 19 P. 5.1(c). Rule 24 further permits a non-party to intervene when the non-party “is given an 20 unconditional right to intervene by a federal statute.” Fed. R. Civ. P. 24(a)(1). The United 21 States has an unconditional statutory right to intervene “[i]n any action . . . wherein the 22 constitutionality of any Act of Congress affecting the public interest is drawn in question 23 . . . .” 28 U.S.C. § 2403(a). In such an action, “the court . . . shall permit the United States 24 to intervene . . . for argument on the question of constitutionality.” Id. Here, Plaintiffs have 25 “drawn in question” the constitutionality of 47 U.S.C. § 230(c), and the United States has an 26 unconditional right to intervene to defend the statute. 27 The United States will immediately hereafter file its memorandum in defense of the 28 constitutionality of 47 U.S.C. § 230(c). The United States’ intervention, including its filing UNITED STATES’ NOTICE OF INTERVENTION Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Tel: (202) 616-8488 Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 46 06/16/20 Filed 05/08/20 Page Page 164 of3239 of 3 1 of a memorandum in support of the constitutionality of 47 U.S.C. § 230(c), will not interfere 2 with the timely adjudication of this action. This notification is also timely. By this Court’s 3 order of April 23, 2020, the United States’ deadline for intervention is today. Doc. 44. 4 5 Accordingly, the United States hereby provides notice of intervention in this action for the purpose of defending the constitutionality of 47 U.S.C. § 230(c). 6 7 DATED: May 8, 2020 8 9 Respectfully submitted, JOSEPH H. HUNT Assistant Attorney General ERIC WOMACK Assistant Branch Director 10 INDRANEEL SUR Trial Attorney 11 12 By: /s/ Indraneel Sur INDRANEEL SUR 13 14 U.S. Department of Justice Counsel for the United States of America 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES’ NOTICE OF INTERVENTION Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Tel: (202) 616-8488 Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 165 of1 239 of 17 7 JOSEPH H. HUNT Assistant Attorney General ERIC WOMACK Assistant Branch Director INDRANEEL SUR indraneel.sur@usdoj.gov D.C. Bar No. 978017 Trial Attorney Civil Division, Federal Programs Branch 1100 L Street, NW Washington, D.C. 20530 Telephone: (202) 616-8488 Facsimile: (202) 616-8470 8 Counsel for the United States of America 1 2 3 4 5 6 9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DIVINO GROUP LLC, a California limited liability company, CHRIS KNIGHT, an individual, CELSO DULAY, an individual, CAMERON STIEHL, an individual, BRIAANDCHRISSY LLC, a Georgia limited liability company, BRIA KAM, an individual, CHRISSY CHAMBERS, an individual, CHASE ROSS, an individual, BRETT SOMERS, an individual, and LINDSAY AMER, an individual, STEPHANIE FROSCH, an individual, SAL CINEQUEMANI, an individual, TAMARA JOHNSON, an individual, and GREG SCARNICI, an individual, Plaintiffs, vs. GOOGLE LLC, a Delaware limited liability company, YOUTUBE, LLC, a Delaware limited liability company, and DOES 1-25, Case No. 5:19-cv-004749-VKD MEMORANDUM OF LAW FOR INTERVENOR UNITED STATES IN SUPPORT OF THE CONSTITUTIONALITY OF 47 U.S.C. § 230(C) Action Filed: August 13, 2019 Trial Date: None Set Rule 5.1 Notice Filed: December 20, 2019 Defendants. 24 25 26 27 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 166 of2 239 of 17 1 TABLE OF CONTENTS 2 INTRODUCTION............................................................................................................................. 1 3 STATEMENT ..................................................................................................................................... 2 4 I. Statutory Background ......................................................................................................2 5 6 II. Proceedings In Plaintiffs’ Case ....................................................................................... 4 7 ARGUMENT ...................................................................................................................................... 7 8 I. The Court Should First Decide The Potentially Dispositive Statutory Issues Because They May Obviate The Need To Address Plaintiffs’ Constitutional Challenge ................................................................................................. 7 9 10 11 II. If The Court Reaches the Question, It Should Conclude That Section 230(c) Is Constitutional ..................................................................................... 8 12 13 CONCLUSION.................................................................................................................................12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - i Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 167 of3 239 of 17 TABLE OF AUTHORITIES 1 2 CASES 3 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) ......................................................................................................................... 8 4 5 6 7 8 9 Ashwander v. TVA, 297 U.S. 288 (1936) ......................................................................................................................... 7 Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009)........................................................................................................ 4 Borough of Duryea v. Guarnieri, 564 U.S. 379 (2011) ................................................................................................................ 10, 11 10 11 Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985) ......................................................................................................................... 9 12 13 14 15 16 17 18 19 20 21 22 23 24 Delfino v. Agilent Techs., Inc., 145 Cal. App. 4th 790, 52 Cal. Rptr. 3d 376 (Cal. Ct. App. 2006) .......................................... 4 Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999) ......................................................................................................................... 7 Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir. 2016).......................................................................................................... 4 Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008)............................................................................................... 2, 3, 4 Fields v. Legacy Health Sys., 413 F.3d 943 (9th Cir. 2005)........................................................................................................11 Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009)......................................................................................................11 Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) .......................................................................................................................11 25 26 Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (2019)..................................................................................................................... 9 27 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - ii Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 168 of4 239 of 17 1 N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568 (1979) ......................................................................................................................... 8 2 3 4 5 6 7 8 9 10 11 12 13 14 Orin v. Barclay, 272 F.3d 1207 (9th Cir. 2001)..................................................................................................... 12 Prager University v. Google LLC, 951 F.3d 991 (9th Cir. 2020)................................................................................................. passim Sikhs for Justice, Inc. v. Facebook, Inc., 697 F. App’x 526 (9th Cir. 2017) ................................................................................................. 2 Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088 (N.D. Cal. 2015) ...................................................................................... 2 Spector Motor Serv. v. McLaughlin, 323 U.S. 101 (1944) ........................................................................................................................ 7 Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) ............................................ 3 Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) ...................................................................................................................... 10 15 16 17 18 19 Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169 (9th Cir. 2009)....................................................................................................... 3 Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997)......................................................................................................... 4 STATUTES 20 21 15 U.S.C. § 1125 et seq. ................................................................................................................... 6, 7 22 28 U.S.C. § 2403.................................................................................................................................. 6 23 42 U.S.C. § 1983.................................................................................................................................. 6 24 47 U.S.C. § 230 ............................................................................................................................ passim 25 26 Communications Decency Act of 1996 (“CDA”), Pub. L. No. 104-104, 110 Stat 56 (codified at 47 U.S.C. § 230) ............................................. 1 27 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - iii Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 169 of5 239 of 17 1 RULES 2 Fed. R. Civ. P. 5.1 ............................................................................................................................... 6 3 Fed. R. Civ. P. 12 ........................................................................................................................ passim 4 OTHER AUTHORITIES 5 6 F. Mott, American Journalism 55 (3d ed. 1962)................................................................................. 9 7 H.R. Rep. No. 104-458 (1996) (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 10 .................. 3 8 John E. Nowak, Ronald D. Rotunda & J. Nelson Young, Handbook on Constitutional Law (1978) ........................................................................................ 12 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - iv Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 170 of6 239 of 17 INTRODUCTION 1 2 Plaintiffs, who are video creators seeking monetary and other recovery based on the 3 alleged editorial decisions of a popular Internet platform, YouTube, have raised a 4 constitutional challenge to Section 230(c) of the Communications Decency Act of 1996 5 (“CDA”) (Pub. L. No. 104-104, § 509, codified at 47 U.S.C. § 230(c)). When the World Wide 6 Web was in its early days in 1996, Congress sought through Section 230(c) to promote and 7 protect “Good Samaritan” blocking and screening of offensive material by limiting the 8 liability of website owners and operators. The statute immunizes for certain liability purposes 9 an “interactive computer service” provider from being treated as the publisher or speaker of 10 content created by third parties and hosted by the service (47 U.S.C. § 230(c)(1)), or for 11 removing or restricting access to certain types of offensive material (§ 230(c)(2)). 12 In seeking Rule 12(b)(6) dismissal of the operative complaint, YouTube has invoked 13 the statute as an affirmative defense to Plaintiffs’ claims, and Plaintiffs have responded by 14 arguing, among other things, that the statute violates the First Amendment and the equal 15 protection guarantee of the Fifth Amendment to the extent it shields YouTube from liability 16 for Plaintiffs’ claims. Plaintiffs also seek a declaratory judgement to that effect. 17 18 The United States intervenes today in response to Plaintiffs’ constitutional challenge, and, in defense of the statute, respectfully limits this brief to two arguments. 19 First, under the doctrine of constitutional avoidance, this Court should start by 20 deciding the statutory arguments presented by the parties regarding the pending Rule 12(b)(6) 21 motion, because those non-constitutional grounds may obviate the need for decision on any 22 constitutional question. 23 necessary, which would not be the situation here if the Court were to conclude that statutory 24 grounds suffice to dispose of the case. A court should decide a constitutional question only when 25 Second, if the Court concludes that it must reach the constitutional question, Plaintiffs’ 26 challenge should be rejected on the merits. Section 230(c) does not regulate Plaintiffs’ 27 primary conduct. Instead, the statute establishes a rule prohibiting liability for certain 28 conduct by online platforms, including YouTube. Because the United States is intervening UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - 1 Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 171 of7 239 of 17 1 for the limited purpose of defending the constitutionality of Section 230(c), it does not take 2 a position on whether the statute forecloses the particular claims Plaintiffs have alleged. But 3 assuming it does, that would not violate the First Amendment’s Speech Clause, because—as 4 the Ninth Circuit squarely held in Prager University v. Google LLC, 951 F.3d 991 (9th Cir. 5 2020)—YouTube is not a state actor capable of denying the freedom of speech. In other 6 words, Section 230(c) would not deny Plaintiffs any constitutional claim they otherwise 7 would have. Nor do Plaintiffs’ arguments find support in the First Amendment’s Petition 8 Clause or in the constitutional guarantee of equal protection. In short, however Plaintiffs’ 9 challenge to Section 230(c) is framed, it is meritless, and should be rejected. STATEMENT 10 11 I. Statutory Background 12 Section 230(c) of the CDA is entitled “Protection for ‘Good Samaritan’ blocking and 13 screening of offensive material.” The Ninth Circuit has described the statute as 14 “immuniz[ing] providers of interactive computer services against liability arising from 15 content created by third parties.” Fair Hous. Council of San Fernando Valley v. Roommates.Com, 16 LLC, 521 F.3d 1157, 1163-64 (9th Cir. 2008) (en banc) (footnotes omitted). 17 In particular, Paragraph (1) states: “No provider . . . of an interactive computer 18 service shall be treated as the publisher or speaker of any information provided by another 19 information content provider.” 47 U.S.C. § 230(c)(1). The statute also provides that “[n]o 20 cause of action may be brought and no liability may be imposed under any State or local law 21 that is inconsistent with this section.” Id. § 230(e)(3). The result is to protect online 22 platforms from such liabilities as those the common law imposed on publishers or speakers 23 for libel or slander. Some courts have also construed the limitation to shield online platforms 24 against certain liabilities under federal law. See, e.g., Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., 25 144 F. Supp. 3d 1088, 1096 (N.D. Cal. 2015), aff’d sub nom. Sikhs for Justice, Inc. v. Facebook, Inc., 26 697 F. App’x 526 (9th Cir. 2017). The immunity applies only when the interactive computer 27 service provider is not also the “information content provider” of the material in question— 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - 2 Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 172 of8 239 of 17 1 i.e., the person “responsible, in whole or in part, for the creation or development of” the 2 “offending content.” See Roommates, 521 F.3d at 1162-63 (quoting § 230(f)(3)). 3 For its part, Paragraph (2) describes a separate immunity. It states: 4 No provider or user of an interactive computer service shall be held liable on account of — 5 (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or 6 7 8 (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph [A]. 9 10 11 47 U.S.C. § 230(c)(2).* 12 13 14 The problem Congress sought to solve in Section 230(c) arose from a New York state trial court’s ruling that an internet service provider that had voluntarily deleted some messages from an online message board was then “legally responsible for the content of 15 defamatory messages that it failed to delete.” See Roommates, 521 F.3d at 1163 (discussing 16 Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 17 24, 1995)). The statute responded by “immuniz[ing] the removal of user-generated content, 18 not the creation of content.” Id. That is, Section 230 “provides ‘Good Samaritan’ protections 19 from civil liability for providers . . . of an interactive computer service for actions to restrict 20 . . . access to objectionable online material. One of the specific purposes of this section is to 21 overrule Stratton . . . which . . . treated such providers . . . as publishers or speakers of content 22 that is not their own because they have restricted access to objectionable material.” 23 H.R. Rep. No. 104-458 (1996) (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 10. 24 25 26 27 28 The text of Paragraph (2)(B) refers to “the material described in paragraph (1),” but the Ninth Circuit “take[s] it that the reference to the ‘material described in paragraph (1)’ is a typographical error, and that instead the reference should be to . . . § 230(c)(2)(A),” because “Paragraph (1) pertains to the treatment of a publisher or speaker and has nothing to do with ‘material,’ whereas subparagraph (A) pertains to and describes material.” Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1173 n.5 (9th Cir. 2009). * UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - 3 Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 173 of9 239 of 17 1 According to the Ninth Circuit, Section 230(c)(1) shields the defendant from a claim 2 wherever “the duty that the plaintiff alleges the defendant violated derives from the 3 defendant’s status or conduct as a ‘publisher or speaker.’” Barnes v. Yahoo!, Inc., 570 F.3d 4 1096, 1102 (9th Cir. 2009). In that context, the Ninth Circuit views “publication” as 5 “involv[ing] reviewing, editing, and deciding whether to publish or to withdraw from 6 publication third-party content.” Id.. The Ninth Circuit has remarked in an en banc opinion 7 that “any activity that can be boiled down to deciding whether to exclude material that third 8 parties seek to post online is perforce immune” under Section 230(c)(1). Roommates, 521 F.3d 9 at 1170-71. 10 The Ninth Circuit has described one of the policies behind the liability shield as 11 promotion of speech—that is, to “avoid the chilling effect upon Internet free speech that 12 would be occasioned by the imposition of tort liability upon companies that do not create 13 potentially harmful messages but are simply intermediaries for their delivery.” Doe v. Internet 14 Brands, Inc., 824 F.3d 846, 852 (9th Cir. 2016) (quoting Delfino v. Agilent Techs., Inc., 145 15 Cal. App. 4th 790, 52 Cal. Rptr. 3d 376, 387 (Cal. Ct. App. 2006)). In enacting Section 230(c), 16 Congress made findings describing online platforms as offering “a forum for a true diversity 17 of political discourse, unique opportunities for cultural development, and myriad avenues for 18 intellectual activity.” § 230(a)(3). Accordingly, “the policy of the United States” is “to 19 preserve the vibrant and competitive free market that presently exists for the Internet and 20 other interactive computer services, unfettered by Federal or State regulation.” 21 (emphasis added). To be sure, Congress also determined that it was the policy of the United 22 States “to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking 23 in obscenity, stalking, and harassment by means of computer.” § 230(b)(5) (emphasis added). 24 But in balancing the various interests, Congress sought “not to deter harmful online speech 25 through the separate route of imposing tort liability on companies that serve as intermediaries 26 for other parties’ potentially injurious messages.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330- 27 31 (4th Cir. 1997) (Wilkinson, C.J.) (emphasis added). § 230(b)(2) 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - 4 Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 174 of 10239 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 II. Proceedings In Plaintiffs’ Case The instant Plaintiffs are “Lesbian, Gay, Bisexual, Transgender, Transsexual or Queer internet content creators” who make videos, including many that “discuss issues which affect members of the LGBTQ+ community.” 2d Am. Compl. ¶¶ 1, 41 (Doc. 20) (“SAC”). YouTube, owned by Google, is allegedly the dominant Internet video platform, hosting “roughly 95%” of global “public video-based content,” and “monetizing the free speech and expression of . . . the 2.3 billion people who now use” it. SAC ¶ 15. 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. Rule 12(b)(6) Opp. 4 (Doc. 28); see SAC ¶¶ 10, 117(d), 288. According to Plaintiffs, 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. SAC ¶¶ 55, 89, 131. YouTube allegedly retains “unfettered and absolute discretion to restrict the viewership, reach, and monetization of [the] videos.” SAC ¶ 118. One way that YouTube allegedly exercises that discretion is through its “Restricted Mode,” which works “much like a curtain” to “block[] access” by “younger, sensitive audiences to video content that contains certain specifically enumerated ‘mature’ aspects.” SAC ¶ 77. 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,” instead of 22 showing the video, YouTube displays a warning, stating that the video is unavailable and that 23 to view the video the viewer would “need to disable Restricted Mode.” SAC ¶¶ 77-79, 83, 24 343. YouTube allegedly tells viewers who inquire that videos are placed in “Restricted Mode” 25 when they include, among other things, “[o]verly detailed conversations about or depictions 26 of sex or sexual activity,” “inappropriate language, including profanity,” or other sensitive 27 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - 5 Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 175 of 11239 of 17 1 content. SAC ¶¶ 26, 85, 344, 345, 346. “On average, 1.5–2% of users view YouTube 2 through Restricted Mode.” Prager Univ., 951 F.3d at 996. 3 YouTube has allegedly styled itself (including in testimony to Congress) as a “neutral 4 public forum.” SAC ¶¶ 61, 287, 342. But Plaintiffs allege that YouTube has used its “power 5 over filtering” as a “censorship power to silence and crush Plaintiffs because they identify 6 [as] LGBTQ+ and express LGBTQ+ viewpoints.” SAC ¶ 21. In particular, Plaintiffs allege 7 that YouTube placed some of their videos into “Restricted Mode,” or rendered certain videos 8 ineligible for generation of advertising revenue by “demonetizing” them, justified by 9 YouTube’s alleged false statements that the videos contained “inappropriate” or “otherwise 10 objectionable” content. SAC ¶¶ 3, 26, 151, 345-47. According to Plaintiffs, the episodes of 11 “Restricted Mode” and demonetization misuse they allege are not isolated; rather, YouTube 12 purportedly has a “‘company policy’ of not selling ads to ‘gay’ content creators because the 13 ‘gay thing’ render[s] [their] video[s] ‘shocking’ and sexually explicit regardless of the actual 14 content of the video[s].” SAC ¶ 20; see SAC ¶¶ 122, 134, 146; SAC Ex. A (transcript of 15 communication with Google Support staff in Bangalore, India allegedly describing policy). 16 Plaintiffs seek a declaration that 47 U.S.C. § 230(c) violates the First and Fourteenth 17 Amendments; they allege that applying the statute as a bar on their claims would be “both 18 an unconstitutional restraint on Plaintiffs’ First Amendment rights to freedom of petition 19 and speech, and a violation of equal protection of law under the Fourteenth Amendment.” 20 SAC ¶ 261; see SAC ¶¶ 280-82. Plaintiffs also assert various claims against YouTube, 21 including two federal statutory claims—one alleging that YouTube engaged in 22 unconstitutional “[v]iewpoint-[b]ased [d]iscrimination” remediable under 42 U.S.C. § 1983 23 (SAC ¶¶ 283-303), and the other alleging that YouTube engaged in false advertising and false 24 association in violation of the Lanham Act, 15 U.S.C. § 1125 et seq. (SAC ¶¶ 337-48). 25 This Court has not yet certified any constitutional question under 28 U.S.C. § 2403 26 and Rule 5.1. On March 9, 2020, this Court endorsed a stipulation providing the United 27 States until April 24, 2020 to determine whether to intervene and to file a brief, if any. Doc. 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - 6 Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 176 of 12239 of 17 1 32. On the Government’s motion, the Court later enlarged the time for the United States to 2 intervene to May 8, 2020. Doc. 44. ARGUMENT 3 4 5 I. The Court Should First Decide The Potentially Dispositive Statutory Issues Because They May Obviate The Need To Address Plaintiffs’ Constitutional Challenge 6 As an initial matter, this Court should not address the constitutionality of Section 7 230(c) unless it first determines that the pending motion to dismiss cannot be resolved on 8 non-constitutional grounds. “If there is one doctrine more deeply rooted than any other in 9 the process of constitutional adjudication, it is that we ought not to pass on questions of 10 constitutionality . . . unless such adjudication is unavoidable.” Dep’t of Commerce v. U.S. House 11 of Representatives, 525 U.S. 316, 343 (1999) (quoting Spector Motor Serv. v. McLaughlin, 323 U.S. 12 101, 105 (1944)); see id., 525 U.S. at 344 (“[I]f a case can be decided on either of two grounds, 13 one involving a constitutional question, the other a question of statutory construction or 14 general law, the Court will decide only the latter”) (quoting Ashwander v. TVA, 297 U.S. 288, 15 347 (1936) (Brandeis, J., concurring)). 16 This Court should adhere to that doctrine of constitutional avoidance here and 17 decline to rule on the constitutionality of Section 230(c) unless the motion to dismiss cannot 18 be resolved on other grounds. The United States has intervened solely for the purpose of 19 defending the constitutionality of Section 230(c) and therefore takes no position on the 20 merits of the non-constitutional issues. It is apparent, however, that the Court’s resolution 21 of those issues might obviate the need to consider Section 230(c)’s constitutionality. 22 Here is one example: Plaintiffs assert a Section 1983 claim (SAC ¶¶ 283-303), and 23 Lanham Act claims for false advertising and false association (SAC ¶¶ 337-48). This Court 24 might decide that Plaintiffs have not alleged the elements of either of those federal statutory 25 claims in light of the Ninth Circuit’s twin conclusions in Prager University that (1) YouTube is 26 not a state actor constrained by the First Amendment (951 F.3d at 999), and (2) “YouTube’s 27 statements concerning its content moderation policies do not constitute ‘commercial 28 advertising or promotion’” within the meaning of the Lanham Act (id. at 999-1000 (quoting UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - 7 Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 177 of 13239 of 17 1 15 U.S.C. § 1125(a)(1)(B))). And this Court might similarly decide that Plaintiffs have not 2 alleged the elements of their state law claims. 3 Here is another example: Plaintiffs contend that Section 230(c) does not apply to the 4 misconduct alleged. Rule 12(b)(6) Opp. 13-21. If the Court were to conclude that 5 YouTube’s acts as alleged by Plaintiffs do not fit within the terms of either paragraph 6 230(c)(1) or (2), then the statute would not apply, and there would be no occasion for passing 7 on the constitutionality of the statute. 8 In short, where “dispositive” statutory grounds may be available, it is “incumbent on” 9 this Court to examine and decide the case on those grounds first. Cf. N.Y.C. Transit Auth. v. 10 Beazer, 440 U.S. 568, 582 (1979) (“Before deciding the constitutional question, it was 11 incumbent on [lower courts] to consider whether the statutory grounds might be 12 dispositive.”). 13 14 15 16 17 18 19 20 21 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. Section 230(c) does not regulate or limit Plaintiffs’ primary conduct, such as their expressive activities. For example, Plaintiffs do not allege that Section 230(c) prevents them from creating videos or posting them on the Internet. Cf. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (restriction on virtual child pornography challenged by creators of erotic and nudist works). Instead, Section 230(c) establishes a substantive limitation on the liability of certain Internet companies for claims arising from certain specified conduct. But Plaintiffs cannot show that Congress violated Plaintiffs’ 22 constitutional rights by making that affirmative defense available here to YouTube, because 23 none of the clauses of the Constitution on which Plaintiffs rely confers on Plaintiffs any right 24 to bring an underlying claim. 25 First, Plaintiffs do not identify any valid underlying First Amendment speech claim 26 they could have brought against YouTube had Section 230(c) not been in force. To the 27 contrary, the Ninth Circuit explicitly held in Prager University that “YouTube is a private 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - 8 Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 178 of 14239 of 17 1 entity” that is not a state actor subject to the constraints of the First Amendment. See 951 2 F.3d at 996, 999. The Ninth Circuit observed that “courts have uniformly concluded that 3 digital internet platforms that open their property to user-generated content do not become 4 state actors,” and held that “the state action doctrine precludes constitutional scrutiny of 5 YouTube’s content moderation pursuant to its Terms of Service and Community 6 Guidelines.” See id. at 997, 999. The Ninth Circuit thus concluded that “YouTube may be a 7 paradigmatic public square on the Internet, but it is ‘not transformed’ into a state actor solely 8 by ‘provid[ing] a forum for speech.’” Id. at 997 (quoting Manhattan Cmty. Access Corp. v. 9 Halleck, 139 S. Ct. 1921, 1930, 1934 (2019)). 10 The Ninth Circuit relied on the “Supreme Court’s state action precedent,” including 11 “its recent teaching in Halleck.” Id. In that 2019 decision, the Supreme Court explained: 12 “[W]hen a private entity provides a forum for speech, the private entity is not ordinarily 13 constrained by the First Amendment because the private entity is not a state actor. The 14 private entity may thus exercise editorial discretion over the speech and speakers in the 15 forum.” Halleck, 139 S. Ct. at 1930. As one illustration, the Court commented: “Benjamin 16 Franklin did not have to operate his newspaper as ‘a stagecoach, with seats for everyone.’” 17 Halleck, 139 S. Ct. at 1931 (quoting F. Mott, American Journalism 55 (3d ed. 1962)). And the 18 Supreme Court made clear that an “imprecise and overbroad phrase” in “passing dicta” in 19 one of its prior decisions “should not be read to suggest that private property owners or 20 private lessees are subject to First Amendment constraints whenever they dedicate their 21 private property to public use or otherwise open their property for speech.” See id. at 1931 22 n.3 (discussing Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 801 (1985)). 23 No exception to that principle about private property owners applies to YouTube, as the 24 Ninth Circuit reasoned. See Prager Univ., 951 F.3d at 997-99. 25 Because YouTube is not a state actor, its alleged misconduct toward Plaintiffs does 26 not implicate Plaintiffs’ freedom of speech. And because YouTube’s actions do not implicate 27 the First Amendment, the liability protection Section 230(c) affords to YouTube likewise 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - 9 Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 179 of 15239 of 17 1 does not implicate the First Amendment. Or, put another way, Section 230(c) has not 2 deprived Plaintiffs of any valid underlying Speech Clause claim. 3 Second, although Plaintiffs’ Petition Clause argument lacks detailed explanation, they 4 appear to contend that the Petition Clause requires Congress to allow them to proceed with 5 their federal and state law claims even though the challenged statute provides an affirmative 6 defense potentially foreclosing those claims. See SAC ¶ 281 (alleging that unconstitutionality 7 stems from “Google/YouTube’s use of Section 230(c) as a shield to prevent Plaintiffs from 8 petitioning the courts for relief to redress violations of their civil, consumer, and contractual rights, 9 including rights which expressly protect Plaintiffs as a class from identity or viewpoint based 10 discrimination and speech restrictions”) (emphasis added); see also Rule 12(b)(6) Opp. 20-21 11 (contending that “the [Communications Decency Act] cannot be construed to preclude 12 Plaintiffs from petitioning the Courts to redress discriminatory and unlawful restrictions their 13 rights to free speech and equal benefits and protection of the law”) (emphasis added). That 14 assertion mistakenly posits that the Petition Clause requires the Government to guarantee 15 Plaintiffs the ability to continue to litigate the particular claims for relief they have alleged 16 and to reach a particular outcome (here, denial of the Rule 12(b)(6) motion). Tellingly, 17 Plaintiffs have cited no precedents construing the Petition Clause as guaranteeing such an 18 outcome in litigation. 19 To be sure, the Supreme Court has observed that its “precedents confirm that the 20 Petition Clause protects the right of individuals to appeal to courts and other forums 21 established by the government for resolution of legal disputes. ‘[T]he right of access to courts 22 for redress of wrongs is an aspect of the First Amendment right to petition the government.’” 23 Borough of Duryea v. Guarnieri, 564 U.S. 379, 387 (2011) (quoting Sure-Tan, Inc. v. NLRB, 467 24 U.S. 883, 896-97 (1984)). “A petition,” the Supreme Court has further explained, “conveys 25 the special concerns of its author to the government and, in its usual form, requests action 26 by the government to address those concerns.” Guarnieri, 564 U.S. at 388-89 (citing Sure- 27 Tan, 467 at 896-97). 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - 10 Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 180 of 16239 of 17 1 But the requirements of the Petition Clause have already been fully satisfied in this 2 case, given that, by commencing this action, Plaintiffs “convey[ed] [their] special concerns 3 . . . to the government and . . . request[ed] action by the government to address those 4 concerns.” See Guarnieri, 564 U.S. at 388-89. And Plaintiffs remain free to urge Congress to 5 amend the statute. The Petition Clause, however, does not mandate the substantive response 6 to their petition that Plaintiffs desire—i.e., a decision disregarding the affirmative defense set 7 forth in Section 230(c). 8 Were it otherwise, every statute or precedent limiting or preempting previously- 9 available legal remedies would violate the Petition Clause. To the contrary: As the Supreme 10 Court explained in interpreting the Due Process Clause of the Fourteenth Amendment, a 11 State (and, accordingly, the Federal Government) “remains free to create substantive 12 defenses or immunities for use in adjudication—or to eliminate its statutorily created causes 13 of action altogether . . . .” Logan v. Zimmerman Brush Co., 455 U.S. 422, 432-33 (1982). 14 Plaintiffs’ Petition Clause argument resembles the Due Process Clause argument the 15 Ninth Circuit rejected in Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009). The plaintiffs there 16 challenged a federal statute limiting the liability of firearms manufacturers in certain 17 circumstances. In upholding the law, the Ninth Circuit concluded that Congress’s “legislative 18 determination” creating the liability protection “provides all the process that is due.” Id. at 19 1141-42 (internal quotation marks omitted). The court also rejected the contention that the 20 statutory liability limitation deprived the plaintiffs of a property right, reasoning that “a 21 party’s property right in any cause of action does not vest until a final unreviewable judgment 22 is obtained.” See id. at 1140-41 (quoting Fields v. Legacy Health Sys., 413 F.3d 943, 956 (9th 23 Cir. 2005)). 24 Although Plaintiffs have not explicitly invoked the Due Process Clause as a basis for 25 their challenge here, they advance an interpretation of the Petition Clause that would 26 effectively circumvent Logan and Ileto. At least where, as here, Plaintiffs did not obtain a 27 “final unreviewable judgment” in their favor before Section 230(c) came into force, they have 28 no entitlement to the particular legal theories they have alleged. See Ileto, 565 F.3d at 1140UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - 11 Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case Case 5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 47 Filed 06/16/20 05/08/20 PagePage 181 of 17239 of 17 1 41. Congress therefore retained authority to impose limitations on those theories by enacting 2 Section 230(c). Logan and Ileto thus provide additional confirmation that Plaintiffs’ Petition 3 Clause theory lacks merit. 4 Third, Plaintiffs’ equal protection challenge fails for the same reasons as their First 5 Amendment Speech and Petition claims, and does not require separate analysis under Ninth 6 Circuit precedent. “It is generally unnecessary to analyze laws which burden the exercise of 7 First Amendment rights by a class of persons under the equal protection guarantee, because 8 the substantive guarantees of the Amendment serve as the strongest protection against the 9 limitation of these rights.” Orin v. Barclay, 272 F.3d 1207, 1213 n.3 (9th Cir. 2001) (quoting 10 John E. Nowak, Ronald D. Rotunda & J. Nelson Young, Handbook on Constitutional Law 11 (1978)). On that basis, the Ninth Circuit treated an “equal protection claim as subsumed by, 12 and co-extensive with, [the Section 1983 plaintiff’s] First Amendment claim.” Id. This Court 13 need go no further in rejecting Plaintiffs’ equal protection theory. CONCLUSION 14 15 For the foregoing reasons, the Court should decide Defendants’ Rule 12(b)(6) motion 16 without reaching any constitutional question if possible. If the Court reaches Plaintiffs’ 17 challenge to the constitutionality of 47 U.S.C. § 230(c), it should reject it. 18 DATED: May 8, 2020 19 Respectfully submitted, JOSEPH H. HUNT Assistant Attorney General 20 21 22 23 24 25 26 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 27 28 UNITED STATES’S MEMORANDUM OF LAW IN SUPPORT OF CONSTITUTIONALITY OF 47 U.S.C. § 230(C) - 12 Case No. 5:19-cv-004749-VKD U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 Tel: (202) 616-8488 Case 5:20-cv-O4011 Document 1 Filed 06/16/20 Page 182 of 239 Exhibit Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 57 06/16/20 Filed 06/01/20 Page Page 183 of5239 of 8 EXECUTIVE ORDER ------PREVENTING ONLINE CENSORSHIP By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section 1. Policy. Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution. The freedom to express and debate ideas is the foundation for all of our rights as a free people. In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet. This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators. The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology. Today, many Americans follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st century equivalent of the public square. Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see. As President, I have made clear my commitment to free and open debate on the internet. Such debate is just as important online as it is in our universities, our town halls, and our homes. It is essential to sustaining our democracy. Online platforms are engaging in selective censorship that is harming our national discourse. Tens of thousands of Americans have reported, among other troubling behaviors, online platforms "flagging" content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse. Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias. As has been reported, Twitter seems never to have placed such a label on another politician's tweet. As recently as last week, Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets. Unsurprisingly, its officer in charge of so-called "Site Integrity" has flaunted his political bias in his own tweets. At the same time online platforms are invoking inconsistent, irrational, and groundless justifications to censor or otherwise restrict Americans' speech here at home, several online platforms are profiting from and promoting the aggression and disinformation spread by foreign governments like China. One United States company, for example, created a search engine for the Chinese Communist Party that would have blacklisted searches for "human rights," hid data unfavorable to the Chinese Communist Party, and tracked users determined appropriate for surveillance. It also established research partnerships in China that provide direct benefits to the Chinese military. Other companies have accepted advertisements paid for by the Chinese government that spread false information about China's mass imprisonment of religious minorities, thereby enabling these abuses of human rights. They have also amplified China's propaganda abroad, including by allowing Chinese EXHIBIT "D" Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 57 06/16/20 Filed 06/01/20 Page Page 184 of6239 of 8 government officials to use their platforms to spread misinformation regarding the origins of the COVID-19 pandemic, and to undermine pro-democracy protests in Hong Kong. As a Nation, we must foster and protect diverse viewpoints in today's digital communications environment where all Americans can and should have a voice. We must seek transparency and accountability from online platforms, and encourage standards and tools to protect and preserve the integrity and openness of American discourse and freedom of expression. Sec. 2. Protections Against Online Censorship. (a) It is the policy of the United States to foster clear ground rules promoting free and open debate on the internet. Prominent among the ground rules governing that debate is the immunity from liability created by section 230(c) of the Communications Decency Act (section 230(c)). 47 U.S.C. 230(c). It is the policy of the United States that the scope of that immunity should be clarified: the immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints. Section 230(c) was designed to address early court decisions holding that, if an online platform restricted access to some content posted by others, it would thereby become a "publisher" of all the content posted on its site for purposes of torts such as defamation. As the title of section 230(c) makes clear, the provision provides limited liability "protection" to a provider of an interactive computer service (such as an online platform) that engages in "'Good Samaritan' blocking" of harmful content. In particular, the Congress sought to provide protections for online platforms that attempted to protect minors from harmful content and intended to ensure that such providers would not be discouraged from taking down harmful material. The provision was also intended to further the express vision of the Congress that the internet is a "forum for a true diversity of political discourse." 47 U.S.C. 230(a)(3). The limited protections provided by the statute should be construed with these purposes in mind. In particular, subparagraph (c)(2) expressly addresses protections from "civil liability" and specifies that an interactive computer service provider may not be made liable "on account of" its decision in "good faith" to restrict access to content that it considers to be "obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable." It is the policy of the United States to ensure that, to the maximum extent permissible under the law, this provision is not distorted to provide liability protection for online platforms that -- far from acting in "good faith" to remove objectionable content -- instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree. Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike. When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider. (b) To advance the policy described in subsection (a) of this section, all executive departments and agencies should ensure that their application of section 230(c) properly reflects the narrow purpose of the section and take all appropriate actions in this regard. In addition, within 60 days of the date of this order, the Secretary of Commerce (Secretary), in Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 57 06/16/20 Filed 06/01/20 Page Page 185 of7239 of 8 consultation with the Attorney General, and acting through the National Telecommunications and Information Administration (NTIA), shall file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify: (i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider's responsibility for its own editorial decisions; (ii) the conditions under which an action restricting access to or availability of material is not "taken in good faith" within the meaning of subparagraph (c)(2)(A) of section 230, particularly whether actions can be "taken in good faith" if they are: (A) deceptive, pretextual, or inconsistent with a provider's terms of service; or (B) taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard; and (iii) any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section. Sec. 3. Protecting Federal Taxpayer Dollars from Financing Online Platforms That Restrict Free Speech. (a) The head of each executive department and agency (agency) shall review its agency's Federal spending on advertising and marketing paid to online platforms. Such review shall include the amount of money spent, the online platforms that receive Federal dollars, and the statutory authorities available to restrict their receipt of advertising dollars. (b) Within 30 days of the date of this order, the head of each agency shall report its findings to the Director of the Office of Management and Budget. (c) The Department of Justice shall review the viewpoint-based speech restrictions imposed by each online platform identified in the report described in subsection (b) of this section and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices. Sec. 4. Federal Review of Unfair or Deceptive Acts or Practices. (a) It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech. The Supreme Court has noted that social media sites, as the modern public square, "can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard." Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). Communication through these channels has become important for meaningful participation in American democracy, including to petition elected leaders. These sites are providing an important forum to the public for others to engage in free expression and debate. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980). (b) In May of 2019, the White House launched a Tech Bias Reporting tool to allow Americans to report incidents of online censorship. In just weeks, the White House received over 16,000 complaints of online platforms censoring or otherwise taking action against users based on their political viewpoints. The White House will submit such complaints received to the Department of Justice and the Federal Trade Commission (FTC). (c) The FTC shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code. Such unfair or deceptive acts or practice may include Case Case5:19-cv-04749-VKD 5:20-cv-04011 Document Document 1 Filed 57 06/16/20 Filed 06/01/20 Page Page 186 of8239 of 8 practices by entities covered by section 230 that restrict speech in ways that do not align with those entities' public representations about those practices. (d) For large online platforms that are vast arenas for public debate, including the social media platform Twitter, the FTC shall also, consistent with its legal authority, consider whether complaints allege violations of law that implicate the policies set forth in section 4(a) of this order. The FTC shall consider developing a report describing such complaints and making the report publicly available, consistent with applicable law. Sec. 5. State Review of Unfair or Deceptive Acts or Practices and Anti-Discrimination Laws. (a) The Attorney General shall establish a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices. The working group shall also develop model legislation for consideration by legislatures in States where existing statutes do not protect Americans from such unfair and deceptive acts and practices. The working group shall invite State Attorneys General for discussion and consultation, as appropriate and consistent with applicable law. (b) Complaints described in section 4(b) of this order will be shared with the working group, consistent with applicable law. The working group shall also collect publicly available information regarding the following: (i) increased scrutiny of users based on the other users they choose to follow, or their interactions with other users; (ii) algorithms to suppress content or users based on indications of political alignment or viewpoint; (iii) differential policies allowing for otherwise impermissible behavior, when committed by accounts associated with the Chinese Communist Party or other anti-democratic associations or governments; (iv) reliance on third-party entities, including contractors, media organizations, and individuals, with indicia of bias to review content; and (v) acts that limit the ability of users with particular viewpoints to earn money on the platform compared with other users similarly situated. Sec. 6. Legislation. The Attorney General shall develop a proposal for Federal legislation that would be useful to promote the policy objectives of this order. Sec. 7. Definition. For purposes of this order, the term "online platform" means any website or application that allows users to create and share content or engage in social networking, or any general search engine. Sec. 8. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. DONALD J. TRUMP THE WHITE HOUSE, May 28, 2020. Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 187 of 239 EXHIBIT Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 188 of 239 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 2 3 DIVINO GROUP LLC, ET AL., 4 5 6 7 1 PLAINTIFFS, CASE NO. CV-19-4749-VKD VS. SAN JOSE, CALIFORNIA GOOGLE LLC, ET AL., JUNE 2, 2020 DEFENDANT. PAGES 1 - 51 8 9 TRANSCRIPT OF ZOOM PROCEEDINGS BEFORE THE HONORABLE VIRGINIA K. DEMARCHI UNITED STATES DISTRICT JUDGE 10 A-P-P-E-A-R-A-N-C-E-S BY ZOOM 11 FOR THE PLAINTIFFS: 12 13 BROWNE GEORGE ROSS LLP BY: PETER OBSTLER 44 MONTGOMERY STREET SUITE 1280 SAN FRANCISCO, CALIFORNIA 94104 14 BY: DEBI ANN RAMOS 801 S. FIGUEROA ST., SUITE 2000 LOS ANGELES, CALIFORNIA 90067 15 16 17 18 19 20 21 22 23 FOR THE DEFENDANTS: WILSON SONSINI GOODRICH & ROSATI BY: BRIAN M. WILLEN 1301 AVENUE OF THE AMERICA, 40TH FLOOR NEW YORK, NEW YORK 10019-6022 BY: LAUREN G. WHITE 650 PAGE MILL ROAD PALO ALTO, CALIFORNIA 94304-1050 (APPEARANCES CONTINUED ON THE NEXT PAGE.) OFFICIAL COURT REPORTER: IRENE L. RODRIGUEZ, CSR, RMR, CRR CERTIFICATE NUMBER 8074 24 25 PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY, TRANSCRIPT PRODUCED WITH COMPUTER. UNITED STATES COURT REPORTERS EXHIBIT "E" Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 189 of 239 1 A P P E A R A N C E S BY ZOOM: (CONT'D) 2 FOR INTERESTED PARTY: 3 4 5 2 US DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH BY: INDRANEEL SUR 1100 L ST. RM. 12010 WASHINGTON, DC 20530 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 190 of 239 1 SAN JOSE, CALIFORNIA 2 3 JUNE 2, 2020 P R O C E E D I N G S 10:24AM 3 (COURT CONVENED AT 10:24 A.M.) 10:24AM 4 THE CLERK: 10:24AM 5 GOOGLE, CASE NUMBER 19-CV-4749. 10:24AM 6 THE COURT: 10:24AM 7 10:24AM 8 WHO WILL BE SPEAKING ON BEHALF OF DIVINO GROUP TODAY? 10:24AM 9 MR. OBSTLER, YOU'RE ON MUTE. 10:24AM 10 10:24AM 11 THE MOST NERVE-RACKING PART OF THE WHOLE HEARING IS TRYING TO 10:24AM 12 GET THIS THING TO WORK. 10:24AM 13 10:24AM 14 10:24AM 15 10:24AM 16 10:24AM 17 10:24AM 18 10:24AM 19 BRIAN WILLEN. 10:24AM 20 SPEAKING FOR GOOGLE. 10:24AM 21 10:24AM 22 AND MS. WHITE WILL BE ADDRESSING ANY ISSUES RELATED TO THE 10:24AM 23 UNDERLYING CAUSES OF ACTION. 10:24AM 24 10:24AM 25 THE NEXT MATTER IS DIVINO GROUP VERSUS GOOD MORNING. I'M WAITING FOR THE PRIOR MATTER AND ALSO WITH OUR TECHNOLOGY. MR. OBSTLER: SORRY ABOUT THAT, YOUR HONOR. THIS IS (LAUGHTER.) MR. OBSTLER: PETER OBSTLER, MYSELF, WILL BE SPEAKING ON BEHALF OF THE DIVINO PLAINTIFFS, YOUR HONOR. THE COURT: OKAY. WHO WILL BE SPEAKING ON BEHALF OF GOOGLE TODAY? MR. WILLEN: GOOD MORNING, YOUR HONOR. THIS IS ME AND MY COLLEAGUE, MS. WHITE, WILL BOTH BE I WILL BE ADDRESSING ANY ISSUES RELATED TO SECTION 230, THE COURT: ALL RIGHT. THANK YOU VERY MUCH. AND I DO HAVE MR. SUR ON BEHALF OF THE UNITED STATES. UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 191 of 239 ALL RIGHT. 4 10:25AM 1 SO WE ARE HERE ON THE DEFENDANTS' MOTION TO 10:25AM 2 10:25AM 3 10:25AM 4 JUST BY IDENTIFYING THE ISSUES THAT I AM MOST INTERESTED IN 10:25AM 5 HEARING ABOUT, AND THEN I'LL LET YOU MAKE YOUR ARGUMENTS, AND I 10:25AM 6 HAVE SOME VERY SPECIFIC QUESTIONS. 10:25AM 7 10:25AM 8 CLAIMS FOR RELIEF SINCE THE EIGHTH ONE IS A REQUEST FOR 10:25AM 9 DECLARATORY RELIEF AND MORE OF A REQUEST FOR A REMEDY. 10:25AM 10 10:25AM 11 THAT THE NINTH CIRCUIT'S DECISION IN PRAGER IS DISPOSITIVE WITH 10:25AM 12 RESPECT TO THE FEDERAL CLAIMS AND PERHAPS THE CALIFORNIA 10:25AM 13 CONSTITUTION CLAIM BECAUSE OF THE FINDING THAT THE 10:25AM 14 NINTH CIRCUIT MADE THAT GOOGLE AND YOUTUBE ARE NOT STATE 10:25AM 15 ACTORS. 10:25AM 16 10:26AM 17 THE IDEA THAT GOOGLE AND YOUTUBE ARE STATE ACTORS, SO THAT ONE 10:26AM 18 ALSO SEEMS TO BE ELIMINATED BY THIS DECISION. 10:26AM 19 10:26AM 20 THAT THE TERMS OF SERVICE AND COMMUNITY GUIDELINES ARE NOT 10:26AM 21 COMMERCIAL ADVERTISING OR PROMOTION AND THAT THE OTHER 10:26AM 22 STATEMENTS THAT ARE CONTAINED -- THAT ARE HIGHLIGHTED IN THE 10:26AM 23 SECOND AMENDED COMPLAINT ARE OPERATIONAL OR PUFFERY MEANS THAT 10:26AM 24 THE PLAINTIFFS COULD NOT PREVAIL ON THE LANHAM ACT CLAIM. 10:26AM 25 DISMISS THE SECOND AMENDED COMPLAINT. I WILL HEAR FROM ALL PARTIES, BUT I WOULD LIKE TO START SO PLAINTIFFS HAVE EIGHT CLAIMS FOR RELIEF, REALLY SEVEN MY PRINCIPAL CONCERN IS THE PRAGER DECISION. IT DOES SEEM THAT CONCLUSION SEEMS TO ELIMINATE THOSE CLAIMS. THE CALIFORNIA CONSTITUTION CLAIMS ARE ALSO PREMISED ON AND THEN WITH RESPECT TO THE LANHAM ACT CLAIM, THE FINDING SO I WOULD LIKE TO UNDERSTAND THE PARTIES' VIEWS ON THE UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 192 of 239 SIGNIFICANCE OF PRAGER. 5 10:26AM 1 THAT'S THE FIRST THING. 10:26AM 2 10:26AM 3 UNRAH ACT CLAIM WHICH DOESN'T HAVE -- DOESN'T GIVE MUCH 10:26AM 4 DISCUSSION IN THE PARTIES' PAPERS, BUT HERE'S MY QUESTION ABOUT 10:26AM 5 THE UNRAH ACT CLAIM, OR QUESTIONS. 10:26AM 6 10:26AM 7 10:26AM 8 10:27AM 9 10:27AM 10 CREATORS, IS THAT REALLY WITHIN THE SCOPE OF PUBLISHING 10:27AM 11 ACTIVITY UNDER SECTION 230(C)(1) OR (C)(2), WHICH HAS A GOOD 10:27AM 12 FAITH REQUIREMENT? 10:27AM 13 10:27AM 14 CLAIM EVEN IF GOOGLE AND YOUTUBE'S OFFICIAL WRITTEN POLICY IS 10:27AM 15 VIEWPOINT NEUTRAL? 10:27AM 16 10:27AM 17 10:27AM 18 10:27AM 19 YESTERDAY A REQUEST FOR JUDICIAL NOTICE ABOUT THE RECENT 10:27AM 20 EXECUTIVE ORDER, AND I'LL PERMIT THE PARTIES TO ADDRESS THAT, 10:27AM 21 ALTHOUGH I DO NOT SEE HOW THAT HAS ANY BEARING ON THE MOTION TO 10:27AM 22 DISMISS. 10:27AM 23 10:27AM 24 THOSE ISSUES FOR YOUR CONSIDERATION, BUT I WILL LET YOU ARGUE 10:28AM 25 HOWEVER YOU WOULD LIKE TO ARGUE. AND THE SECOND ITEM THAT CAUGHT MY ATTENTION WAS THE DOES IT ACTUALLY APPLY TO THE GOOGLE YOUTUBE PLATFORM? AND IF SO, UNDER WHAT SPECIFIC THEORY? IF I CONSTRUE THE SECOND AMENDED COMPLAINT AS ALLEGING AN UNWRITTEN POLICY TO DISCRIMINATE AGAINST THE LGBTQ CONTENT IS THAT KIND OF AN UNWRITTEN POLICY SUFFICIENT TO STATE A SO I HAVE SOME QUESTIONS AROUND THE UNRAH ACT CLAIM THAT I WOULD LIKE THE PARTIES TO FOCUS ON. AND THEN FINALLY I DID SEE THAT THE PLAINTIFFS DID FILE BUT THOSE ARE MY HIGH-LEVEL OBSERVATIONS AND FLAGGING UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 193 of 239 6 10:28AM 1 AND SINCE IT'S THE DEFENDANTS' MOTION, I WILL GO AHEAD AND 10:28AM 2 10:28AM 3 10:28AM 4 10:28AM 5 10:28AM 6 FIRST WHICH HAS TO DO WITH THE IMPACT OF THE NINTH CIRCUIT'S 10:28AM 7 DECISION IN PRAGER, AND SINCE I THINK THAT RELATES TO THE 10:28AM 8 MERITS OF THE CAUSES OF ACTION RATHER THAN SECTION 230, I WILL 10:28AM 9 LET MY COLLEAGUE, MS. WHITE, ADDRESS THAT IN THE FIRST 10:28AM 10 10:28AM 11 THE COURT: ALL RIGHT. 10:28AM 12 MS. WHITE: THANK YOU, YOUR HONOR. 10:28AM 13 10:28AM 14 AMENDMENT. 10:28AM 15 NINTH CIRCUIT'S DECISION FORECLOSES PLAINTIFFS' FIRST AMENDMENT 10:28AM 16 CLAIM. 10:28AM 17 10:28AM 18 FIRST AMENDMENT RIGHTS, AND OF COURSE THE CASE LAW IS EXTREMELY 10:29AM 19 CLEAR FOLLOWING THE SUPREME COURT'S DECISION IN HALLECK AND NOW 10:29AM 20 THE NINTH CIRCUIT'S DECISION IN PRAGER, WHICH WAS BROUGHT BY 10:29AM 21 COUNSEL FOR PLAINTIFFS HERE AND ASSERTED CLAIMS BASED ON THE 10:29AM 22 SAME PRODUCTS AND SERVICES ON YOUTUBE'S PLATFORM THAT ARE AT 10:29AM 23 ISSUE IN THIS CASE. 10:29AM 24 THERE'S SIMPLY NO PATH FORWARD IN LIGHT OF THE COURT'S 10:29AM 25 HOLDING TO -- FOR THE COURT TO CONCLUDE THAT YOUTUBE IS A STATE LET GOOGLE START. SO MR. WILLEN. MR. WILLEN: YES. THANK YOU, YOUR HONOR. I THINK I SHOULD PROBABLY TAKE YOUR FIRST SET OF QUESTIONS INSTANCE. VERY WELL. TAKING YOUR QUESTIONS IN ORDER, I'LL BEGIN WITH THE FIRST WE ABSOLUTELY AGREE WITH YOUR SUGGESTION THAT THE THEIR CLAIM IS PREDICATED ON AN INFRINGEMENT OF THEIR OWN UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 194 of 239 7 10:29AM 1 ACTOR. 10:29AM 2 AND PLAINTIFFS HAVE FILED A SURREPLY ADDRESSING THAT 10:29AM 3 DECISION, ALTHOUGH THEY DID NOT ADDRESS JUDGE KOH'S UNDERLYING 10:29AM 4 DECISION THAT THE NINTH CIRCUIT AFFIRMED IN THEIR OPPOSITION 10:29AM 5 BRIEF. 10:29AM 6 10:30AM 7 DIFFERENT BECAUSE THEY HAVE ARTICULATED A DIFFERENT STATE 10:30AM 8 ACTION THEORY UNDER THE SO-CALLED ENDORSEMENT TEST UNDER THE 10:30AM 9 SUPREME COURT SKINNER DECISION. 10:30AM 10 10:30AM 11 THE PUBLIC FUNCTION TEST THAT WAS ARGUED IN PRAGER, THE 10:30AM 12 PARTY -- THE PLAINTIFFS MUST SHOW THAT IN ORDER TO SHOW STATE 10:30AM 13 ACTION, THAT THE CONDUCT THAT ALLEGEDLY DEPRIVED THEM OF THEIR 10:30AM 14 RIGHTS CAN FAIRLY BE ATTRIBUTED TO THE STATE OR THE GOVERNMENT. 10:30AM 15 AND THERE IS NO BASIS TO ARGUE THAT YOUTUBE, IN MONITORING 10:30AM 16 ITS SERVICE AND MODERATING CONTENT ON ITS SERVICE WAS SOMEHOW 10:30AM 17 ACTING WITH THE GOVERNMENT'S ENDORSEMENT. 10:30AM 18 ITS EXPRESS TERMS, AND THE LEGISLATIVE HISTORY CONFIRMS, THAT 10:31AM 19 THE GOVERNMENT WAS, IN FACT, SEEKING TO TAKE ITSELF OUT OF THE 10:31AM 20 PROCESS OF CONTENT MODERATION ONLINE. 10:31AM 21 THE COURT TO CONCLUDE THAT SECTION 230 SOMEHOW PUTS A THUMB ON 10:31AM 22 THE SCALE IN FAVOR OF THE CONTENT MODERATION DECISIONS THAT 10:31AM 23 YOUTUBE MADE WITH RESPECT TO THE PLAINTIFFS' CONTENT HERE. 10:31AM 24 10:31AM 25 AND IN THEIR SURREPLY THEY CLAIM THAT THIS CASE IS BUT WHETHER THE COURT CONSIDERS THE ENDORSEMENT TEST OR THE COURT: AND SECTION 230 BY SO THERE IS NO BASIS FOR IT SEEMS ALMOST LIKE AN ABSENCE OF ENDORSEMENT, SORT OF AN EXPLICIT NON-ENDORSEMENT OF ANY UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 195 of 239 8 10:31AM 1 PARTICULAR MONITORING OR POLICING OR CENSORSHIP OR RESTRICTION. 10:31AM 2 IT'S LEAVING IT UP TO THE PLATFORM OR THE SERVICE PROVIDER IN 10:31AM 3 THIS CASE. 10:31AM 4 SO I TAKE YOUR POINT ABOUT THE ENDORSEMENT THEORY. 10:31AM 5 DOESN'T SEEM TO FIT, BUT I WILL HEAR FROM THE PLAINTIFFS ON 10:31AM 6 THAT. 10:31AM 7 10:32AM 8 PRAGER DECISION TAKE CARE OF THE FIRST AMENDMENT CLAIM AS WELL 10:32AM 9 AS THE CALIFORNIA CONSTITUTION CLAIM? 10:32AM 10 10:32AM 11 CONSTITUTION, THE NINTH CIRCUIT DOES NOT. 10:32AM 12 PRAGER II DECISION. 10:32AM 13 10:32AM 14 DOES. 10:32AM 15 CALIFORNIA CONSTITUTION HAS A STATE ACTION REQUIREMENT JUST 10:32AM 16 LIKE THE FIRST AMENDMENT. 10:32AM 17 10:32AM 18 PRIVATE PLATFORM INVOLVED IN HOSTING EXPRESSIVE CONDUCT A STATE 10:32AM 19 ACTOR WOULD ESSENTIALLY BE A PARADIGM SHIFT AND THAT HOLDING 10:32AM 20 BEARS ON THE CALIFORNIA CONSTITUTION CLAIM AS WELL. 10:32AM 21 10:33AM 22 EXCEPTION ARTICULATED BY THE CALIFORNIA SUPREME COURT IN 10:33AM 23 ROBINS VERSUS PRUNEYARD, BUT THAT DECISION WAS APPLIED TO REAL 10:33AM 24 PROPERTY GIVEN THE NATURE OF REAL PROPERTY AND HAS NEVER BEEN 10:33AM 25 EXTENDED BEYOND THE SCOPE OF REAL PROPERTY. OKAY. IT SO IN YOUR VIEW -- IN DEFENDANTS' VIEW DOES THE I MEAN, IT DOESN'T SPECIFICALLY ADDRESS THE CALIFORNIA MR. WILLEN: THAT WAS THE THAT'S RIGHT, YOUR HONOR. WE THINK IT CALIFORNIA STATE COURTS HAVE MADE CLEAR THAT THE AND AS THE NINTH CIRCUIT IN PRAGER HELD, THAT TO FIND A NOW, PLAINTIFFS HAVE INVOKED THIS NARROW AND 40-YEAR-OLD UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 196 of 239 9 10:33AM 1 AND, IN FACT, EVERY CASE THAT HAS CONSIDERED SIMILAR 10:33AM 2 EFFORTS TO EXPAND ITS SCOPE TO ONLINE SERVICES HAS REJECTED 10:33AM 3 THOSE EFFORTS. 10:33AM 4 CASE IN THE SOUTHERN DISTRICT OF NEW YORK AND JUDGE CHEN IN THE 10:33AM 5 HIQ DECISION. 10:33AM 6 10:33AM 7 10:33AM 8 10:33AM 9 10:33AM 10 ATTEMPTING TO DISTINGUISH THE LANHAM ACT, BUT THERE'S 10:33AM 11 ESSENTIALLY FOUR CATEGORIES OF STATEMENTS AT ISSUE IN THEIR 10:34AM 12 CLAIM, AND THEY ALL RELATE TO STATEMENTS THAT THE NINTH CIRCUIT 10:34AM 13 CONSIDERED IN PRAGER, THOSE DEALING WITH THE TERMS OF SERVICE 10:34AM 14 DESCRIPTIONS OF RESTRICTED MODE AND SOME IMPLICIT STATEMENT BUT 10:34AM 15 NO ACTUAL STATEMENT REGARDING THE DECISION TO MAKE CERTAIN OF 10:34AM 16 PLAINTIFFS' VIDEOS UNAVAILABLE IN RESTRICTED MODE. 10:34AM 17 10:34AM 18 STATEMENTS AND CLEARLY HELD THAT NO LANHAM ACT CLAIM COULD 10:34AM 19 PROCEED ON THE BASIS OF ANY OF THEM. 10:34AM 20 COMMERCIAL OR PROMOTIONAL CONTEXTS AND THEY, WITH RESPECT TO 10:34AM 21 YOUTUBE'S PROMOTIONAL STATEMENTS AND MISSION STATEMENTS, ARE 10:34AM 22 NOT -- ARE ESSENTIALLY NONACTIONABLE PUFFERY. 10:34AM 23 10:34AM 24 INTERNAL UNWRITTEN POLICY THAT WAS INCONSISTENT WITH THOSE 10:34AM 25 PUBLIC STATEMENTS, WOULD THE ANSWER STILL BE THE SAME UNDER THE IN ADDITION TO PRAGER II THERE WAS THE DOMEN THE COURT: ALL RIGHT. THANK YOU. AND THE LANHAM ACT ISSUE? MS. WHITE: YES. ON THAT, YOUR HONOR, I DON'T ENTIRELY UNDERSTAND PLAINTIFFS' ARGUMENTS IN THEIR SURREPLY FOR THE NINTH CIRCUIT ADDRESSED EACH OF THOSE CATEGORIES OF THE COURT: THEY ARE NOT MADE IN AND IF GOOGLE WERE TO ACT OR HAVE AN UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 197 of 239 DOES IT MATTER? 10 10:35AM 1 LANHAM ACT? THOSE ARE -- THE STATEMENTS THAT 10:35AM 2 ARE PUBLIC FACING AND DESCRIBE THE PLATFORM AS BEING VIEWPOINT 10:35AM 3 NEUTRAL, THAT'S NOT ADVERTISING, THAT'S NOT PROMOTION, SO IT 10:35AM 4 DOESN'T MATTER IF, IN FACT, THAT'S NOT THE WAY IT WORKS AND 10:35AM 5 THERE'S SOME UNWRITTEN POLICY THAT DISCRIMINATES AGAINST THE 10:35AM 6 LGBT CONTENT CREATORS AND STILL NOT ACTIONABLE UNDER THE 10:35AM 7 LANHAM ACT WOULD BE YOUR VIEW? 10:35AM 8 MS. WHITE: 10:35AM 9 10:35AM 10 I UNDERSTAND THE PLAINTIFFS CLAIM TO BE HERE, THEY HAVE TO TIE 10:35AM 11 THE CLAIM TO SOME ACTUAL STATEMENT. 10:35AM 12 10:35AM 13 10:35AM 14 10:35AM 15 ABOUT TRYING TO FOCUS IN ON THIS ISSUE OF PLAINTIFFS ALLEGE 10:36AM 16 DISCRIMINATION BASED ON THEIR IDENTITY AS OPPOSED TO CONTENT. 10:36AM 17 10:36AM 18 MR. WILLEN BECAUSE IT REALLY DOES GET INTO THE QUESTION OF WHAT 10:36AM 19 IS IMMUNIZED AND WHAT IS NOT. 10:36AM 20 PLAINTIFFS SAY IN THEIR COMPLAINT THAT THEIR CONTENT IS 10:36AM 21 BLOCKED OR RESTRICTED IN SOME WAY NOT BECAUSE OF THE CONTENT 10:36AM 22 ITSELF BUT BECAUSE THE CREATORS OF THE CONTENT ARE GAY OR ARE 10:36AM 23 SEEKING TO HAVE THEIR CONTENT VIEWED BY THE LGBT COMMUNITY, SO 10:36AM 24 THEY'RE TARGETING CONTENT TO THE LGBT COMMUNITY. 10:36AM 25 THAT'S RIGHT, YOUR HONOR. TO STATE A CLAIM UNDER THE LANHAM ACT FOR FALSE ADVERTISING, WHICH IS WHAT SO IMPLICIT OR ABSTRACT MOTIVE IS NOT SUFFICIENT TO STATE A CLAIM UNDER THE LANHAM ACT. THE COURT: ALL RIGHT. SO I DID HAVE A QUESTION AND I DON'T KNOW IF THIS IS A QUESTION FOR YOU OR SO THAT MAKES ME WONDER WHETHER THAT KIND OF CONDUCT IS, UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 198 of 239 11 10:36AM 1 AS I ASKED FROM THE BEGINNING, SO IF I CREDIT THAT AS AN 10:36AM 2 ALLEGATION THAT I MUST ACCEPT AS TRUE THAT IT'S A 10:36AM 3 DISCRIMINATION BASED ON IDENTITY, IS THAT WITHIN THE SCOPE OF 10:36AM 4 THE PUBLISHING ACTIVITIES UNDER SECTION (C)(1)? 10:37AM 5 10:37AM 6 UNDER (C)(2), IS THAT KIND OF DISCRIMINATION, IS THERE A 10:37AM 7 QUESTION WHETHER THAT KIND OF DISCRIMINATION IS NOT GOOD FAITH 10:37AM 8 UNDER (C)(2)? 10:37AM 9 10:37AM 10 10:37AM 11 10:37AM 12 10:37AM 13 BLANK SLATE HERE. 10:37AM 14 SIX CASES IN THE LAST TWO OR THREE YEARS ALL OF WHICH HAVE 10:37AM 15 APPLIED SECTION 230(C)(1) TO CLAIMS UNDER VARIOUS 10:37AM 16 DISCRIMINATION LAWS, INCLUDING THE UNRAH ACT. 10:37AM 17 10:37AM 18 IN THE SOUTHERN DISTRICT OF NEW YORK WAS A CLAIM OF THE 10:37AM 19 UNRAH ACT SPECIFICALLY HELD THAT THE STATE, YOU KNOW, 10:37AM 20 DISCRIMINATION LAWS AND CLAIMS ARISING UNDER THEM ARE WITHIN 10:37AM 21 THE SCOPE OF PUBLISHING ACTIVITY AT LEAST IN CERTAIN CONTEXTS 10:38AM 22 UNDER (C)(1). 10:38AM 23 WE HAVE THE SIKHS FOR JUSTICE CASE, JUDGE KOH'S DECISION, 10:38AM 24 WHICH HELD THE SAME THING AS DID TITLE II OF THE FEDERAL CIVIL 10:38AM 25 RIGHTS ACT, AND THAT DECISION WAS AFFIRMED IN AN UNPUBLISHED AND THE SECOND PART IS IF YOU HAVE TO SHOW GOOD FAITH SO THOSE ARE QUESTIONS FOR MR. WILLEN. MR. WILLEN: SURE. I'D BE HAPPY TO ADDRESS THOSE, YOUR HONOR. SO WITH RESPECT TO (C)(1), THE COURT IS NOT WRITING ON A WE'VE HAD A SERIES OF DECISIONS, AT LEAST SO, FOR EXAMPLE, THE DOMEN CASE THAT MS. WHITE MENTIONED UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 199 of 239 12 10:38AM 1 DECISION BY THE NINTH CIRCUIT, WHICH SPECIFICALLY SAID THERE'S 10:38AM 2 NO, THERE'S NO REASON TO EXEMPT THIS CLAIM FROM SECTION 230. 10:38AM 3 10:38AM 4 FEDERAL NEWS AGENCY CASE, ALSO A JUDGE KOH DECISION. 10:38AM 5 THERE'S A LONG SERIES OF CASES THAT HAVE HELD THIS. 10:38AM 6 10:38AM 7 A CASE LIKE THIS, AS THOSE COURTS DID, AT THE NATURE OF THE 10:38AM 8 ACTIVITY THAT IS GIVING RISE TO THE CLAIM. 10:38AM 9 10:38AM 10 10:38AM 11 ONE IS THE DECISIONS THAT YOUTUBE MADE WITH RESPECT TO 10:38AM 12 RESTRICTED MODE, AND THAT'S THE EXCLUSION OF CERTAIN VIDEOS 10:38AM 13 FROM BEING ELIGIBLE TO BEING SHOWN IN YOUTUBE'S RESTRICTED 10:38AM 14 MODE; 10:39AM 15 10:39AM 16 10:39AM 17 10:39AM 18 ALLEGATIONS EVEN STATE A CLAIM UNDER THE UNRAH ACT, BUT 10:39AM 19 ASSUMING THAT THEY DID, THAT CHALLENGE, THE SPECIFIC ISSUES AT 10:39AM 20 ISSUE HERE, PLAINLY QUALIFY AS PUBLISHING ACTIVITY AS IT'S BEEN 10:39AM 21 DEFINED BY THE NINTH CIRCUIT AND THE SERIES OF NORTHERN 10:39AM 22 DISTRICT OF CALIFORNIA AND OTHER CASES THAT I MENTIONED. 10:39AM 23 10:39AM 24 HOLDING OF THE PRAGER II STATE COURT DECISION CHALLENGED THE 10:39AM 25 RESTRICTED MODE CLEARLY COMES UNDER SECTION 230(C)(2) AS PRAGER HELD THE SAME THING. SIKHS VERSUS FACEBOOK, THE SO AND WHAT THAT REFLECTS IS THAT I THINK YOU HAVE TO LOOK IN HERE PRIMARILY WHAT THE PLAINTIFFS ARE ALLEGING IS A CHALLENGE TO TWO THINGS: AND THE SECOND IS THE DECISION TO DEMONETIZE SOME VIDEOS, ALTHOUGH NOT ALL OF THE VIDEOS. SO MS. WHITE CAN CERTAINLY ADDRESS WHETHER THOSE SO WITH RESPECT TO RESTRICTED MODE, THAT WAS THE EXPRESS UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 200 of 239 13 10:39AM 1 PUBLISHING CONDUCT, EXCUSE ME, AND LIKEWISE THE SAME THING WITH 10:39AM 2 RESPECT TO DEMONETIZATION, AND THAT WAS CONFIRMED EVEN MORE 10:39AM 3 RECENTLY BY JUDGE KIM'S DECISION IN THE LEWIS CASE WHICH WE 10:39AM 4 SUBMITTED AS SUPPLEMENTAL AUTHORITY. 10:40AM 5 INVOLVING DEMONETIZATION, AND THE COURT THERE EXPLAINED VERY 10:40AM 6 CLEARLY I THINK THAT DEMONETIZATION IS A FORM OF PUBLISHER 10:40AM 7 ACTIVITY. 10:40AM 8 10:40AM 9 10:40AM 10 THAT PUBLISHING ACTIVITY ENCOMPASSES QUITE A BROAD SWATH OF 10:40AM 11 ACTIVITY, I UNDERSTAND THAT POINT. 10:40AM 12 BUT TO PUT A REALLY FINE POINT ON IT HERE, WHAT I'M 10:40AM 13 CONCERNED ABOUT IS IF, IF THE ALLEGATION IS, AND I KNOW THAT 10:40AM 14 GOOGLE DISPUTES THAT THIS IS REALLY WHAT IS ALLEGED, BUT IF THE 10:40AM 15 ALLEGATION IS THAT, A, SOMEONE WHO DOES ALL OF THOSE PUBLISHING 10:40AM 16 ACTIVITIES IS NEVERTHELESS DISCRIMINATING ON THE BASIS OF THE 10:40AM 17 AUTHOR'S IDENTITY, THE CONTENT CREATOR'S IDENTITY, REGARDLESS 10:40AM 18 OF WHAT IT IS THAT THE CONTENT HAS IN IT, IF THAT'S THE 10:40AM 19 ALLEGATION, ARE YOU SAYING THAT THAT IS PUBLISHING ACTIVITY, 10:40AM 20 DISCRIMINATION ON THE BASIS OF, LET'S JUST SAY SEXUAL 10:41AM 21 ORIENTATION OF THE CONTENT CREATOR, THAT'S WITHIN PUBLISHING 10:41AM 22 ACTIVITY UNDER (C)(1)? 10:41AM 23 MR. WILLEN: 10:41AM 24 FIRST OF ALL, I THINK IT'S ACTUALLY CLEAR FROM THE FACTS 10:41AM 25 ALLEGED IN THE COMPLAINT AS OPPOSED TO KIND OF RHETORIC IN THE THE COURT: AND THAT WAS A CASE LET ME PAUSE YOU RIGHT THERE, MR. WILLEN, BECAUSE I GET THE POINT THAT OTHER CASES HAVE HELD WELL, I WOULD SAY TWO THINGS. UNITED STATES COURT REPORTERS SO, Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 201 of 239 14 10:41AM 1 COMPLAINT THAT THAT'S NOT WHAT IS PLAUSIBLY ALLEGED HERE. 10:41AM 2 10:41AM 3 THE PLAINTIFFS HERE HAVE HAD ALL OF THEIR VIDEOS EXCLUDED FROM 10:41AM 4 RESTRICTED MODE, NONE OF THEM HAVE ALL OF THEIR VIDEOS NOT 10:41AM 5 ELIGIBLE FOR MONETIZATION. 10:41AM 6 10:41AM 7 THIS CASE, IT'S VERY HARD TO SAY THAT THERE IS ANY SORT OF 10:41AM 8 IDENTITY OR USER BASE DISCRIMINATION. 10:41AM 9 IMPORTANT POINT. 10:41AM 10 BUT AGAIN, WITH RESPECT TO SORT OF THE LEGAL QUESTION 10:41AM 11 UNDER SECTION 230, I MEAN I THINK IT DOES FOLLOW, AND THERE MAY 10:41AM 12 BE SOME CASES WHERE THIS COULD NOT BE THE CASE DEPENDING ON THE 10:41AM 13 PARTICULAR CIRCUMSTANCES. 10:41AM 14 10:42AM 15 230(C)(1) APPLIES WITHOUT REGARD TO THE NATURE OF THE CAUSE OF 10:42AM 16 ACTION. 10:42AM 17 THE THING THAT YOU'RE LOOKING AT IS WHAT IS THE DUTY THAT 10:42AM 18 THE CAUSE OF ACTION IMPOSES AND WHERE THAT DUTY TAKES THE FORM 10:42AM 19 OF A COMMAND EITHER TO PUBLISH OR NOT TO PUBLISH. 10:42AM 20 PRECISELY WHAT SECTION 230(C)(1) PROTECTS AGAINST. 10:42AM 21 WITHDRAWING CONTENT FROM PUBLICATION, CLEAR PUBLIC ACTIVITY. 10:42AM 22 10:42AM 23 TO IMPOSE A DUTY ON THE PLATFORM TO EITHER PUBLISH OR NOT TO 10:42AM 24 WITHDRAW FROM PUBLICATION A PARTICULAR PIECE OF CONTENT OR A 10:42AM 25 PARTICULAR USER'S CONTENT, THAT I THINK JUST UNDER THE YOU KNOW, WE KNOW, FOR EXAMPLE, THAT ALL OF THE -- NONE OF SO CLEARLY IF YOU ACTUALLY LOOK AT WHAT IS GOING ON IN SO I THINK THAT'S AN BUT THE NINTH CIRCUIT HAS BEEN VERY CLEAR THAT SECTION THAT IS SO SO WHERE A DISCRIMINATION CLAIM TAKES THE FORM OF SEEKING UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 202 of 239 15 10:42AM 1 ESTABLISHED LAW APPLIES AND KICKS THE IMMUNITY IN. 10:42AM 2 10:42AM 3 THE CONTEXT OF THE UNRAH ACT BECAUSE THAT TO ME SEEMED LIKE THE 10:42AM 4 ONLY -- IT'S NOT -- IT CAN'T BE A FIRST AMENDMENT ISSUE. 10:43AM 5 KNOW THAT FROM PRAGER. 10:43AM 6 MR. WILLEN: 10:43AM 7 THE COURT: 10:43AM 8 10:43AM 9 10:43AM 10 UNDER 230(C). 10:43AM 11 BECAUSE IMAGINE THAT A PUBLISHER WAS DISCRIMINATING AGAINST A 10:43AM 12 CONTENT CREATOR BASED ON RACE, AND JUST MAKE IT REAL 10:43AM 13 STRAIGHTFORWARD, AND THAT WAS THE ALLEGATION. 10:43AM 14 10:43AM 15 I KNOW THAT GOOGLE HAS A DIFFERENT VIEW OF WHAT ACTUALLY IS 10:43AM 16 PLED AND WHAT WAS PLAUSIBLY PLED, AND I JUST WANTED TO AVOID 10:43AM 17 THAT ISSUE. 10:43AM 18 10:43AM 19 DISCRIMINATING AGAINST A CONTENT CREATOR ON THE BASIS OF RACE, 10:43AM 20 NOT ON CONTENT, IS THAT PUBLISHING ACTIVITY UNDER (C)(1) AND IS 10:43AM 21 IT IMMUNIZED -- WOULD IT ALSO BE IMMUNIZED UNDER (C)(2)? 10:43AM 22 10:43AM 23 10:44AM 24 10:44AM 25 THE COURT: AMENDMENT ISSUE. THAT'S WHY I WAS ASKING THIS QUESTION IN WE YEAH. I DIDN'T REALLY SEE HOW . THERE'S A 14TH IT'S NOT REALLY PLED THAT WAY. IT'S MORE OF AS A RESPONSE TO THE AFFIRMATIVE RESPONSE SO THAT'S WHY I WAS FOCUSSING ON THE UNRAH ACT SO LET'S JUST REMOVE IT FROM THE ACTUAL CASE HERE, BECAUSE I'M ASKING YOU A HYPOTHETICAL QUESTION. MR. WILLEN: YEAH. A PUBLISHER IS SO I THINK THE (C)(2) QUESTION IS A DIFFICULT ONE BECAUSE OF THE GOOD FAITH LANGUAGE. OBVIOUSLY WE HAVE NOT SPECIFICALLY RAISED (C)(2) IN CONNECTION WITH THIS MOTION. I THINK THIS ISSUE HAS NOT UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 203 of 239 16 10:44AM 1 SPECIFICALLY COME UP IN THE (C)(2) CONTEXT. I CAN IMAGINE SOME 10:44AM 2 COURTS TAKING THE POSITION THAT A PROPERLY PLEADED CLAIM OF THE 10:44AM 3 SORT THAT YOU DESCRIBE AS SORT OF FACIAL RACE DISCRIMINATION 10:44AM 4 CLAIM MAY NOT BE GOOD FAITH UNDER (C)(2), I CAN IMAGINE A COURT 10:44AM 5 TAKING THAT POSITION. 10:44AM 6 10:44AM 7 PROVISION, AND IT APPLIES WITH CIRCUMSTANCES AND APPLIES 10:44AM 8 DIFFERENTLY. 10:44AM 9 10:44AM 10 UNDER (C)(1). 10:44AM 11 TO EXEMPT, INTELLECTUAL PROPERTY, FEDERAL INTELLECTUAL PROPERTY 10:44AM 12 CLAIMS, CRIMINAL PROSECUTIONS, CLAIMS UNDER THE STORED 10:44AM 13 COMMUNICATIONS AND ELECTRONIC COMMUNICATIONS PRIVACY ACT. 10:45AM 14 DISCRIMINATION CLAIMS OBVIOUSLY ARE NOT, NOT THERE. 10:45AM 15 10:45AM 16 MIGHT FIND UNDER A PARTICULAR SET OF CIRCUMSTANCES THAT SOME 10:45AM 17 ALLEGED DISCRIMINATION DIDN'T TAKE THE FORM OF A PUBLISHER OF 10:45AM 18 ACTUALLY TARGETING PUBLISHER CONDUCT, AND, THEREFORE, DIDN'T 10:45AM 19 COME WITHIN (C)(1). 10:45AM 20 10:45AM 21 AT, IS I THINK CLEARLY ON THE OTHER SIDE OF THE LAW GIVEN THE 10:45AM 22 NATURE OF THE ALLEGATIONS FOCUSSED SPECIFICALLY ON RESTRICTED 10:45AM 23 MODE, FOCUSSED ON DEMONETIZATION. 10:45AM 24 WE KNOW FROM THE CASES THAT THOSE ARE CORE PUBLISHER 10:45AM 25 ACTIVITIES, AND WE KNOW FROM THE CASES THAT THE DISCRIMINATION I THINK AGAIN, THOUGH, (C)(1) DOES NOT HAVE A GOOD FAITH I THINK WE HAVE TO LOOK AT THE CARVE-OUTS THAT DO EXIST WE HAVE PARTICULAR STATUTES THAT CONGRESS CHOSE I THINK THERE COULD BE SOME STARK CASES WHERE A COURT I THINK THIS CASE, WHICH IS THE CASE THAT WE HAVE TO LOOK UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 204 of 239 17 10:45AM 1 CLAIMS THAT ARE TARGETING THOSE KINDS OF ACTIVITIES HAVE BEEN 10:45AM 2 REPEATEDLY PRECLUDED BY SECTION 230(C)(1). 10:45AM 3 10:45AM 4 10:45AM 5 10:46AM 6 ON BEHALF OF GOOGLE WISH TO ADDRESS THE REQUEST FOR UNUSUAL 10:46AM 7 NOTICE? 10:46AM 8 10:46AM 9 10:46AM 10 THE EXECUTIVE ORDER REALLY HAS NOTHING TO DO WITH THE ISSUES ON 10:46AM 11 THIS MOTION. 10:46AM 12 10:46AM 13 PROVISION OF IT THAT PURPORTS TO HAVE ANY ACTUAL PRESENT 10:46AM 14 EFFECT, WHICH IS PARAGRAPH 2, IS ADDRESSED TO AN INTERPRETATION 10:46AM 15 OF SECTION 230(C)(2)(A), WHICH SEEMS TO REDUCE TO IF YOU DON'T 10:46AM 16 QUALIFY FOR PROTECTION UNDER 230(C)(2)(A), YOU'RE NOT PROTECTED 10:46AM 17 BY SECTION 230(C)(2)(A). 10:46AM 18 10:46AM 19 10:46AM 20 EVERYTHING ELSE IN THE ORDER IS SORT OF DIRECTED TO THINGS 10:46AM 21 THAT MIGHT HAPPEN IN THE FUTURE AND DIRECTIVES FOR RULE MAKING, 10:47AM 22 ET CETERA. 10:47AM 23 SO I DON'T THINK THERE'S ANYTHING TO DO WITH IT. 10:47AM 24 THINK IT HAS ANY BEARING ON THESE ISSUES, AND CERTAINLY IT 10:47AM 25 DOESN'T DISPLACE AND IT'S REALLY NOT CAPABLE OF DISPLACING SO I DON'T THINK THERE'S ANY BASIS IN THIS CASE, GIVEN THESE ALLEGATIONS, TO DEPART FROM THAT CONSENSUS. THE COURT: MR. WILLEN: AS WELL. ALL RIGHT. SURE. LET ME JUST ASK, DOES ANYONE I'D BE HAPPY TO TALK ABOUT THAT YEAH, I THINK WE SHARE YOUR SENSE, YOUR HONOR, THAT THE EXECUTIVE ORDER SEEMS TO US, AT LEAST THE ONLY SO I DON'T THINK THAT HAS ANY BEARING ON THIS MOTION WHICH DOESN'T RELY ON SECTION 230(C)(2) AT ALL. UNITED STATES COURT REPORTERS I DON'T Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 205 of 239 18 10:47AM 1 EITHER THE TEXT OF THE STATUTE OR THE LAW THAT HAS BEEN 10:47AM 2 ESTABLISHED WITH RESPECT TO (C)(1). 10:47AM 3 10:47AM 4 IS THERE ANYTHING ELSE THAT YOU WOULD LIKE TO ARGUE IN 10:47AM 5 SUPPORT OF YOUR MOTION THAT I HAVEN'T FOCUSSED ON IN PARTICULAR 10:47AM 6 OR THAT YOU THINK NEEDS FURTHER ELABORATION AT THIS TIME? 10:47AM 7 10:47AM 8 WANT TO HEAR FROM THE PLAINTIFFS AND RESPOND TO WHAT THEY MIGHT 10:47AM 9 SAY, BUT I DO THINK THAT THE QUESTION OF THE CONSTITUTION, THE 10:47AM 10 CONSTITUTIONAL CHALLENGE TO SECTION 230 THAT THEY HAVE RAISED I 10:47AM 11 THINK, AS THE COURT RECOGNIZED, THE FINDING OF NO STATE ACTION 10:47AM 12 IN THE PRAGER CASE MAKING CLEAR THAT YOUTUBE IS A PRIVATE FORUM 10:48AM 13 AND NOT A GOVERNMENT ACTOR, I THINK THAT FINDING EQUALLY BARS 10:48AM 14 NOT JUST THE FIRST AMENDMENT CLAIM BUT ALSO ANY CHALLENGE TO 10:48AM 15 CONSTITUTIONALITY OF SECTION 230. 10:48AM 16 10:48AM 17 POINT IN EXPLAINING WHY THAT CHALLENGE FAILS IS THE 10:48AM 18 NINTH CIRCUIT'S DECISION IN ROBERTS VERSUS AT&T MOBILITY WHICH 10:48AM 19 WAS NOT A CASE THAT WE WERE ABLE TO CITE IN OUR PAPERS BECAUSE 10:48AM 20 IT RELATES TO AN ARGUMENT THAT THE PLAINTIFFS MADE IN THEIR 10:48AM 21 SURREPLY AND IN THEIR RESPONSE TO THE GOVERNMENT, BUT I THINK 10:48AM 22 THAT CASE WAS VERY HELPFUL. 10:48AM 23 10:48AM 24 10:48AM 25 THE COURT: MR. WILLEN: ALL RIGHT. THANK YOU FOR THAT. I THINK THE ONLY THING, AND OBVIOUSLY I I THINK THE DECISION THAT IS PROBABLY MOST DIRECTLY ON THE COURT: ALL RIGHT. THANK YOU. THANK YOU VERY MUCH. MR. OBSTLER, I WOULD LIKE FOR YOU TO HAVE IN MIND THE UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 206 of 239 19 10:48AM 1 QUESTIONS THAT THE COURT ASKED AT THE BEGINNING, SO JUST TO 10:48AM 2 REVIEW THE SIGNIFICANCE OF THE PRAGER DECISION ON YOUR FEDERAL 10:48AM 3 CLAIMS AND POSSIBLY THE CALIFORNIA CONSTITUTION CLAIM AS WELL; 10:48AM 4 THE QUESTIONS THAT THE COURT HAD ABOUT THE APPLICATION OF 10:49AM 5 230(C)(1) AND (2) AND THE CONTEXT OF THE INTENTIONAL 10:49AM 6 DISCRIMINATION, AND I FRAMED IT AS A QUESTION UNDER THE 10:49AM 7 UNRAH ACT, BUT YOU MAY THINK OF IT DIFFERENTLY, AND THEN I'LL 10:49AM 8 ALSO GIVE YOU AN OPPORTUNITY TO -- I WOULD LIKE YOU TO ADDRESS 10:49AM 9 YOUR REQUEST FOR JUDICIAL NOTICE AND LET ME KNOW WHY YOU THINK 10:49AM 10 IT MATTERS TO THE MOTION TO DISMISS. 10:49AM 11 SPECIFICALLY TO THE GOVERNMENT'S POSITION ON THE MOTION TO 10:49AM 12 INTERVENE, BUT I'D LIKE TO JUST UNDERSTAND THAT, AND ANYTHING 10:49AM 13 ELSE THAT YOU WOULD LIKE TO ARGUE. 10:49AM 14 MR. OBSTLER: 10:49AM 15 I REALLY APPRECIATE AN OPPORTUNITY TO GET A HEARING ON 10:49AM 16 THIS CASE BECAUSE I THINK THERE ARE A LOT OF MISCONCEPTIONS 10:49AM 17 ABOUT WHAT WE HAVE ALLEGED IN 126 PAGES AND 354 PARAGRAPHS. 10:49AM 18 10:49AM 19 TO REFER VERY CLOSELY TO THE COMPLAINT IN DOING THAT BECAUSE I 10:49AM 20 THINK A LOT OF WHAT THEY'RE REALLY ARGUING WHEN YOU PEEL BACK 10:50AM 21 THE ONION IS FACT BASED. 10:50AM 22 ARGUMENTS FALL APART. 10:50AM 23 10:50AM 24 TIME -- AND I BEAR A LOT OF RESPONSIBILITY FOR THIS BECAUSE I 10:50AM 25 LITIGATED THE PRAGER CASE -- IS BEING SPENT ON STATE ACTION. AND MAYBE IT'S JUST ALL RIGHT. THANK YOU SO MUCH, YOUR HONOR. I'M GOING TO ANSWER ALL OF YOUR QUESTIONS, BUT I'M GOING IF THEY'RE DISCRIMINATING, THESE I'LL START WITH THE PRAGER CASE. I THINK WAY TOO MUCH UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 207 of 239 20 10:50AM 1 I'M GOING TO SUBMIT HERE ON STATE ACTION. I DON'T WANT TO 10:50AM 2 WASTE ANY MORE TIME ON IT. 10:50AM 3 10:50AM 4 COME DOWN SO FAR IS THAT THERE IS NOT A CLEAR PLEADING STANDARD 10:50AM 5 ON WHAT YOU WOULD HAVE TO PLEAD TO PLEAD PUBLIC FUNCTION OR TO 10:50AM 6 PLEAD ENDORSEMENT. 10:50AM 7 10:50AM 8 DECISION AS TO WHETHER OR NOT I CAN ALLEGE THOSE TYPES OF 10:50AM 9 FACTS. 10:50AM 10 WANTS TO HEAR FROM ME NOW ON THAT ISSUE, I WOULD REALLY LIKE TO 10:50AM 11 HOLD THAT TO THE END BECAUSE, FRANKLY, I'M PRETTY MUCH PREPARED 10:50AM 12 TO SUBMIT ON THAT. 10:50AM 13 IT MAY BE THAT PRAGER AND HALLECK ENDS EVERYTHING. 10:50AM 14 UNDERSTAND THAT. 10:50AM 15 MY CASE AT THIS POINT. 10:50AM 16 10:51AM 17 10:51AM 18 10:51AM 19 YOUR HONOR. 10:51AM 20 SO SKINNER IS SORT OF UPSIDE-DOWN ON THE CONSTITUTIONALITY 10:51AM 21 ARGUMENT, BUT I WOULD AGREE THAT THAT, OF ALL OF THE CLAIMS IN 10:51AM 22 THIS CASE AT THIS POINT, DEPENDING ON WHAT THE STANDARD IS, IF 10:51AM 23 THAT'S THE WEAKEST CLAIM IN THIS CASE. 10:51AM 24 10:51AM 25 I THINK YOUR HONOR HAS HER VIEWS. MY ONLY ISSUE WITH THE STATE ACTION DECISIONS THAT HAVE SO IF I COULD KNOW THAT, I COULD THEN MAKE A GOOD FAITH I WOULD LIKE TO HOLD, THOUGH, UNLESS THE COURT REALLY WE'RE GOING TO HAVE TO GO UP ON THIS, AND OKAY. THE COURT: I I DON'T THINK THAT'S THE KEY ISSUE IN THE STATE ACTION ISSUE MAKES YOUR FIRST AMENDMENT CLAIM YOUR WEAKEST CLAIM. MR. OBSTLER: I WOULD ABSOLUTELY AGREE WITH THAT, I THINK SKINNER AND THE CONSTITUTIONALITY -- AND NOW, I WILL SAY THEY HAVE MERGED THEIR TERMS OF SERVICE RECENTLY SO A VIOLATION ON YOUTUBE CAN ALSO LEAD TO THEM TAKING UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 208 of 239 21 10:51AM 1 ANDROID DEVICES AWAY, CAN LEAD TO THEM SHUTTING DOWN ALL SORTS 10:51AM 2 OF GOOGLE SERVICES. 10:51AM 3 KNOW THAT FOR WHAT WENT ON IN THE DISASTER THAT HAPPENED IN THE 10:51AM 4 CAUCUSES. 10:51AM 5 10:51AM 6 ARE NOT ALLEGED IN YOUR COMPLAINT. 10:51AM 7 MR. OBSTLER: 10:51AM 8 ARE INVOLVED IN THESE FUNCTIONS. 10:51AM 9 NEED TO ALLEGE MORE SPECIFICITY BECAUSE I'VE GOT SOME VERY 10:51AM 10 STRINGENT PLEADING REQUIREMENTS HERE, WE CAN TAKE A LOOK AT 10:52AM 11 THAT. 10:52AM 12 10:52AM 13 THE STANDARD WHY WE FAIL AND GIVE US LEAVE TO CONSIDER WHETHER 10:52AM 14 WE CAN AMEND, BUT OTHERWISE WE'RE PREPARED TO GO UP ON THAT 10:52AM 15 ISSUE, YOUR HONOR. 10:52AM 16 10:52AM 17 10:52AM 18 10:52AM 19 SEEM TO BE FOCUSSED VERY MUCH ON THE STATEMENTS ABOUT FREEDOM 10:52AM 20 OF EXPRESSION AND ALL THIS TYPE OF STUFF. 10:52AM 21 FOR A LANHAM CLAIM. 10:52AM 22 10:52AM 23 THEY'RE ONE OF THE LARGEST CONTENT CREATORS ON THE YOUTUBE 10:52AM 24 PLATFORM. 10:52AM 25 MAINSTREAM PUBLISHERS. THEY'RE VERY INVOLVED IN ELECTIONS. THE COURT: WE I WOULD RATHER NOT GET INTO THINGS THAT YOUR HONOR, WE HAVE ALLEGED THAT THEY WE HAVE ALLEGED THAT. IF I SO MY ONLY REQUEST ON THAT IS THAT THE COURT ARTICULATE THE COURT: ALL RIGHT. LET'S HEAR ABOUT YOUR ARGUMENTS THAT DON'T RELY ON STATE ACTION. MR. OBSTLER: OKAY. LET'S START WITH LANHAM. THEY THAT'S NOT THE BASIS THE BASIS FOR A LANHAM CLAIM IS THEY WEAR TWO HATS. THEY HAVE PREFERRED CONTENT DEALS WITH MAJOR, MAJOR SO THEY'RE WEARING TWO HATS. UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 209 of 239 22 10:52AM 1 AND WHAT THEY'RE DOING, YOUR HONOR, AND I HOPE YOU CAN SEE 10:52AM 2 10:52AM 3 10:52AM 4 DON'T NEED TO PUT IT ON THE VIDEO. 10:52AM 5 MR. OBSTLER: 10:52AM 6 VIEWERS AND AUDIENCES AROUND THE COUNTRY THAT MY CLIENT'S 10:52AM 7 VIDEOS ARE INAPPROPRIATE BECAUSE THEY CONTAIN SHOCKING CONTENT, 10:53AM 8 SEXUAL OR NUDITY, DRUGS, VIOLENCE, ET CETERA. 10:53AM 9 ARE TELLING THE AUDIENCES WHEN THEY RESTRICT THOSE VIDEOS. 10:53AM 10 10:53AM 11 IT'S ABOUT EVERY SINGLE SERVICE THAT GOOGLE AND YOUTUBE OFFER 10:53AM 12 WHERE THE TRIGGER TO OBTAIN THE SERVICE IS BASED ON A CONTENT 10:53AM 13 BASED REVIEW OR CONTENT BASED PROCEDURE. 10:53AM 14 10:53AM 15 AS CONTENT REGULATORS TO BRAND OUR CONTENT AS INAPPROPRIATE, SO 10:53AM 16 WHEN THE READER LOOKS TO SEE WHAT IS ON RESTRICTED MODE, THEY 10:53AM 17 HAVE A LIST AND THAT IS AN AFFIRMATIVE STATEMENT THAT THEY HAVE 10:53AM 18 REVIEWED THE CONTENT AND THAT THEY HAVE FOUND THE CONTENT TO 10:53AM 19 VIOLATE THAT RULE. 10:53AM 20 10:53AM 21 AND LET ME MAKE SURE THAT I UNDERSTAND WHAT YOU'RE SAYING THE 10:53AM 22 LANHAM ACT CLAIM IS. 10:53AM 23 10:54AM 24 MR. OBSTLER: 10:54AM 25 THE COURT: THIS, THIS IS WHAT APPEARS -THE COURT: THAT'S OKAY. YEAH. I HAVE THE COMPLAINT. YOU THEY ARE SAYING TO ALL SORTS OF THAT'S WHAT THEY THIS CASE, BY THE WAY, IS NOT JUST ABOUT RESTRICTED MODE. SO MY ARGUMENT IN LANHAM IS THAT THEY'RE USING THEIR ROLE THE COURT: SO LET ME PAUSE YOU THERE FOR A MOMENT IS IT A FALSE ADVERTISING CLAIM UNDER 1125(A)(1)(B)? YES, YES. OKAY. SO THEN YOU HAVE TO GO THROUGH UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 210 of 239 23 10:54AM 1 THE ELEMENTS. 10:54AM 2 10:54AM 3 10:54AM 4 10:54AM 5 THEY'RE MAKING IS THAT MY CLIENT'S VIDEOS ARE INAPPROPRIATE 10:54AM 6 SEXUALLY, CONTAIN SEXUAL NUDITY OR MATERIAL, CONTAIN VIOLENCE, 10:54AM 7 WHEN, IN FACT, THAT IS NOT TRUE BECAUSE THEY'RE NOT EVEN 10:54AM 8 LOOKING AT THE CONTENT. 10:54AM 9 10:54AM 10 IMPLICIT BECAUSE A SCREEN DISPLAY THAT INDICATES TO THE VIEWER 10:54AM 11 THAT THAT IS BLOCKED, OR NOT AVAILABLE IN RESTRICTED MODE, 10:54AM 12 IMPLIES THAT IT MUST MEET ONE OF THOSE CATEGORIES OF CONTENT 10:54AM 13 THAT GOOGLE WILL NOT PERMIT TO BE SHOWN IN THAT MODE. 10:54AM 14 10:54AM 15 10:54AM 16 10:54AM 17 ALSO -- AND THIS OVERLAPS WITH THE (C)(1)(A) ISSUE, AND WE'VE 10:55AM 18 ALLEGED THIS AND THE FROSCH DECLARATION CONTAINS IT, TOO. 10:55AM 19 10:55AM 20 THIS. 10:55AM 21 VIDEOS THAT ALLOW THE ALGORITHM TO DO THE PROFILE. 10:55AM 22 10:55AM 23 COMPLICATED CASE, AND WE'RE SAYING SHOW US THE CODE AND SHOW US 10:55AM 24 HOW THIS WORKS. 10:55AM 25 SO IF YOU HAD TO TELL ME AN ANSWER TO THIS QUESTION, WHAT IS THE FALSE OR MISLEADING STATEMENT? MR. OBSTLER: THE COURT: THE FALSE OR MISLEADING STATEMENT THAT AND YOU'RE SAYING THAT THE STATEMENT IS IS THAT THE THEORY? MR. OBSTLER: THAT IS CORRECT, YOUR HONOR. BUT IT GOES A LITTLE DEEPER THAN THAT, OKAY? BECAUSE IT THEY'RE NOT ONLY USING DISCRIMINATORY ALGORITHMS TO DO THEY'RE ACTUALLY EMBEDDING METADATA INTO MY CLIENT'S AGAIN, UNTIL WE DO DISCOVERY, THIS IS GOING TO BE A VERY BUT WE DID A TEA VIDEO, AS YOUR HONOR KNOWS, WHERE WE UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 211 of 239 24 10:55AM 1 ALLEGED AND WHERE WE PUT IN BOTH TAG LINES AND THEN WE PUT IT 10:55AM 2 IN WITHOUT THE TAG LINES AND ALL IT SAYS IS WE LIKE TEA. 10:55AM 3 GOT RESTRICTED. 10:55AM 4 10:55AM 5 HAVE HAPPENED UNLESS SOMEBODY PUT SOME METADATA IN THERE THAT 10:55AM 6 ALLOWED THAT ALGORITHM TO FIND YOU. 10:55AM 7 AND SO WHAT WE'RE SAYING IS THAT BECAUSE THEY'RE SUCH 10:56AM 8 LARGE CONTENT CREATORS, AND THEY'RE USING THEIR ROLE AS CONTENT 10:56AM 9 REGULATORS TO ALSO FALSELY BRAND CONTENT THAT IS ABSOLUTELY 10:56AM 10 APPROPRIATE AS INAPPROPRIATE, AND THAT BLOCKS OUR REACH, AND 10:56AM 11 THAT'S HOW THEY'RE COMPETING WITH US. 10:56AM 12 10:56AM 13 LIKE FALSE ADVERTISING, AND SO THAT'S WHY I WAS ASKING YOU, IS 10:56AM 14 IT A FALSE ADVERTISING CLAIM OR IS IT SOMETHING ELSE? 10:56AM 15 10:56AM 16 10:56AM 17 10:56AM 18 BRANDING -- YOUR THEORY IS THAT GOOGLE AND YOUTUBE ARE FALSELY 10:56AM 19 BRANDING YOUR CLIENT'S CONTENT? 10:56AM 20 10:56AM 21 10:56AM 22 10:56AM 23 NOTICE ON HER FACEBOOK PAGE. 10:56AM 24 GOING ACROSS PLATFORM. 10:56AM 25 IS GOING ON HERE? IT AND AS MS. FROSCH WAS TOLD AT THE MEETINGS, HOW COULD THAT THE COURT: RIGHT. MR. OBSTLER: SO THAT DOESN'T SOUND SO MUCH WHEN YOU SAY THAT THAT DOESN'T SOUND LIKE FALSE ADVERTISING -THE COURT: YOU'RE SAYING -- SO YOU'RE FALSELY MR. OBSTLER: THAT'S CORRECT, BUT THEY'RE DOING IT BY SHOWING EVERY VIEWER WHO GOES THERE (INDICATING). MY WIFE THE OTHER DAY ACTUALLY GOT A RESTRICTED MODE SO THE RESTRICTED MODE IS NOW AND SHE LOOKED IT UP AND SHE SAID WHAT UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 212 of 239 25 10:56AM 1 THE POINT IS -- I'M SORRY, THE POINT IS -- 10:57AM 2 10:57AM 3 YOUR CLAIM FITS THE CLAIM THAT YOU'VE ALLEGED UNDER THE 10:57AM 4 LANHAM ACT, HOW YOUR FACTS FIT THAT CLAIM. 10:57AM 5 STRUGGLING A LITTLE BIT WITH ALL OF THE ELEMENTS THAT YOU HAVE 10:57AM 6 TO SHOW FOR THE LANHAM ACT. 10:57AM 7 THE QUESTION THAT THE NINTH CIRCUIT FOCUSSED ON WAS THAT 10:57AM 8 THE STATEMENTS, AND THE SAME ARGUMENTS WERE MADE IN THAT CASE 10:57AM 9 AS FAR AS I CAN TELL, THE STATEMENTS WERE NOT MADE IN 10:57AM 10 10:57AM 11 MR. OBSTLER: 10:57AM 12 THE COURT: 10:57AM 13 10:57AM 14 TRUTHFULLY WHAT HAD HAPPENED AS IN THIS GOT FLAGGED AS 10:57AM 15 SOMETHING THAT WOULD BE EXCLUDED FROM RESTRICTED MODE. 10:57AM 16 10:57AM 17 RESULTED IN THAT DISPLAY BEING AS YOU DESCRIBE WERE NOT 10:58AM 18 ADVERTISING OR PROMOTION. 10:58AM 19 10:58AM 20 THAT THAT COURT REACHED? 10:58AM 21 EFFECTIVELY HAVE A CLAIM IN THIS CASE THAT DOESN'T HIT THOSE 10:58AM 22 SAME BARRIERS? 10:58AM 23 10:58AM 24 INAPPROPRIATE FACTUAL FINDING. 10:58AM 25 THE COURT: THE COURT: AGAIN, I'M JUST TRYING TO FIGURE OUT HOW I'M STILL COMMERCIAL ADVERTISING OR PROMOTION. YEP. THE FALSE STATEMENTS. RATHER, THE STATEMENTS THAT WERE MADE WERE DESCRIBING SO -- AND THE IMPLEMENTATION OF THAT, THE GUIDELINES THAT SO IN LIGHT OF PRAGER, HOW DO YOU AVOID THE CONCLUSIONS MR. OBSTLER: HOW DO YOU AVOID THOSE AND BECAUSE THE COURT IN PRAGER MADE AN OKAY. SO WHAT IS THE INAPPROPRIATE UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 213 of 239 26 10:58AM 1 FACTUAL FINDING? 10:58AM 2 10:58AM 3 RELATIONSHIP BETWEEN THE STATEMENT THAT IS RESTRICTED IN ANY 10:58AM 4 ADVERTISING OR STATEMENT ABOUT THE QUALITY OF THE VIDEO. 10:58AM 5 WAS PLED IN THE COMPLAINT. 10:58AM 6 10:58AM 7 PLED THAT HERE, AND IT IS BY IMPLICATION AS YOU POINTED OUT 10:58AM 8 UNDER THE GRUBBS DECISION OR WHATEVER. 10:58AM 9 10:58AM 10 RESTRICTING THE VIDEO. 10:58AM 11 AND WHAT IS IT -- WHY WOULD THEY RESTRICT THE VIDEO? 10:58AM 12 TO BE SOMETHING WRONG WITH THAT VIDEO AND PEOPLE SEE THAT. 10:59AM 13 AND I THINK THAT IT IS A FACTUAL ISSUE AS TO WHETHER OR 10:59AM 14 NOT THERE IS A CONNECTION BETWEEN THIS STATEMENT OF FACT "MY 10:59AM 15 VIDEO IS RESTRICTED" AND A STATEMENT OF FACT ABOUT WHETHER OR 10:59AM 16 NOT THAT VIDEO CONTAINS INAPPROPRIATE MATERIAL, SHOCKING AND 10:59AM 17 SEXUALLY EXPLICIT, OR AS THE FLOOR MANAGER FOR GOOGLE SAID 10:59AM 18 "BECAUSE YOU'RE GAY" AND PUTTING THAT OUT ON THE NETWORK TO 10:59AM 19 EVERYBODY. 10:59AM 20 10:59AM 21 JUST LEARNED THIS, RESTRICTED MODE SWEEPS BROADER THAN WHAT 10:59AM 22 THEY'VE TOLD US AND WHAT THEY'VE REPRESENTED TO THE COURT. 10:59AM 23 NOW HAVE EVIDENCE THAT RESTRICTED MODE IS GOING TO PEOPLE WHO 10:59AM 24 DON'T EVEN HAVE IT ON, AND IT'S GOING ACROSS THE PLATFORM. 10:59AM 25 MR. OBSTLER: YEAH. IT SAID THERE WAS NO I ADMIT IT SHOULD HAVE BEEN MORE CLEARER. THAT WE EXPRESSLY I MEAN, THIS IS THE INTERNET AND THEY'RE USING -- THEY'RE THE PERSON LOOKED AT THAT RESTRICTION THERE HAS SECOND OF ALL, IF I WOULD GET LEAVE TO AMEND BECAUSE WE I'M SORRY, I LEARNED THAT RECENTLY. WE THIS CASE HAS BEEN UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 214 of 239 27 10:59AM 1 EVOLVING. WE HAVEN'T GOTTEN A SINGLE LICK OF DISCOVERY ON THIS 10:59AM 2 TO DATE, YOUR HONOR. 10:59AM 3 THE COURT: 10:59AM 4 10:59AM 5 MR. OBSTLER: 11:00AM 6 THE COURT: 11:00AM 7 MR. OBSTLER: 11:00AM 8 THE COURT: 11:00AM 9 11:00AM 10 ADVERTISING OR PROMOTION. 11:00AM 11 POINT. 11:00AM 12 11:00AM 13 BEING APPLIED OR MISAPPLIED IN YOUR VIEW, OR OVERINCLUSIVE OR 11:00AM 14 UNDERINCLUSIVE, HOW IS THAT ADVERTISING OR PROMOTION IF WHAT 11:00AM 15 APPLE -- I'M SORRY, APPLE -- IF WHAT GOOGLE AND YOUTUBE ARE 11:00AM 16 DOING ARE SIMPLY SAYING THIS IS THE RESULT OF WHATEVER IT IS 11:00AM 17 BEHIND THE SCENES THAT RESULTED IN AN EXCLUSION FROM RESTRICTED 11:00AM 18 MODE, WHETHER IT'S A HUMAN DOING IT OR AN ALGORITHM DOING IT OR 11:00AM 19 A COMMUNITY FLAG, OR WHATEVER THE MECHANISM IS, THEY'RE 11:00AM 20 REPORTING ON THAT BLACK SCREEN THAT THAT PARTICULAR CONTENT IS 11:00AM 21 SUBJECT TO RESTRICTED MODE. 11:00AM 22 11:01AM 23 MR. OBSTLER: 11:01AM 24 THE COURT: 11:01AM 25 RIGHT. IT'S NOT UNUSUAL THAT AT THE PLEADING STAGE YOU WOULDN'T HAVE HAD DISCOVERY. FAIR ENOUGH. THAT'S WHY WE'RE AT THE PLEADING STAGE. YEAH. SO THE ISSUE I STILL THINK IS CHALLENGING FOR YOU IS CHARACTERIZING THESE STATEMENTS AS I THINK THAT'S STILL A CHALLENGING AND EVEN IF YOU HAD DISCOVERY ABOUT HOW RESTRICTED MODE IS THAT'S A FACTUAL STATEMENT. CORRECT, YOUR HONOR. AND SO -- YOU KNOW, IT'S A LITTLE BIT -- WE CAN GET TO THE QUESTION OF WHETHER, YOU KNOW, WHAT THE UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 215 of 239 28 11:01AM 1 INTERSECT IS WITH SECTION 230, BUT JUST FOCUSSING ON JUST THE 11:01AM 2 LANHAM ACT CLAIM ITSELF AND WHETHER YOU MEET THE ELEMENTS, I'M 11:01AM 3 STILL HAVING TROUBLE WITH THE ALLEGATION THAT THAT IS REALLY 11:01AM 4 COMMERCIAL ADVERTISING OR PROMOTION. 11:01AM 5 11:01AM 6 STRUGGLED WITH IN GRUBBS. 11:01AM 7 STRUGGLED WITH IN THE DECISIONS THAT ARE CITED IN PRAGER AND 11:01AM 8 EVERY SINGLE ONE OF THEM WAS DONE ON A FACTUAL RECORD. 11:01AM 9 ISN'T A MOTION TO DISMISS IN ANY OF THOSE CASES. 11:01AM 10 11:01AM 11 WHETHER WE WERE GOING TO MOVE FOR RECONSIDERATION WITH THE 11:01AM 12 NINTH CIRCUIT IN PRAGER. 11:01AM 13 THIS CASE. 11:01AM 14 CONSEQUENCES OF PRAGER. 11:01AM 15 11:01AM 16 I THINK HERE WE ARE EXPRESSING ALLEGING THAT THESE ARE 11:02AM 17 STATEMENTS OF FACT THAT ARE BRANDING OUR VIDEOS AS 11:02AM 18 INAPPROPRIATE AT THE SAME TIME THAT THEY ARE NOT RESTRICTING 11:02AM 19 THEIR VIDEOS AND PUTTING THAT STUFF ON THEIR STUFF AND THAT TO 11:02AM 20 ME IS IMPLICIT FALSE ADVERTISING UNDER GRUBBS AND UNDER THE 11:02AM 21 OTHER CASES. 11:02AM 22 11:02AM 23 THIS IS NOT EVEN IN THE BALLPARK, YOUR HONOR, I'LL DISMISS THE 11:02AM 24 CLAIM. 11:02AM 25 DISCOVERY ON THAT CLAIM. MR. OBSTLER: BUT THAT IS EXACTLY WHAT THE COURT THAT IS EXACTLY WHAT THE COURT THERE NOW, I HAD TO MAKE A STRATEGIC DECISION OBVIOUSLY, AS TO WE CHOSE NOT TO DO SO. THAT'S NOT IT SHOULDN'T BE HERE, BUT YOU WERE ASKING ABOUT THE FOR PRAGER PURPOSES WE CAN HAVE A LEGITIMATE DISPUTE, BUT AND IF WE DEVELOP A RECORD, AND IT'S PRETTY CLEAR THAT BUT I THINK WE SHOULD GET AN OPPORTUNITY TO DO SOME I THINK THIS IS COMMERCIAL UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 216 of 239 29 11:02AM 1 ADVERTISING AS ALLEGED, AND I BELIEVE THAT BASED ON DISCOVERY 11:02AM 2 AND IF YOU LOOK AT THE CASES AND IF YOU LOOK AT WHAT THEY 11:02AM 3 CONSIDERED IN THOSE CASES, THIS IS NOT A ONE SIZE FITS ALL. 11:02AM 4 THIS CASE IS EXTREMELY DIFFERENT AND ESPECIALLY GIVEN THE 11:02AM 5 NATURE OF MY CLIENTS AND WHAT THAT STATEMENT MEANS ON THEIR 11:02AM 6 VIDEOS. 11:02AM 7 11:02AM 8 11:02AM 9 11:02AM 10 ASSOCIATION CLAIM OR ARE YOU LIMITING YOUR CLAIM UNDER THE 11:02AM 11 LANHAM ACT TO FALSE ADVERTISING? 11:03AM 12 MR. OBSTLER: 11:03AM 13 11:03AM 14 THE COURT: 11:03AM 15 MR. OBSTLER: 11:03AM 16 11:03AM 17 THE COURT: 11:03AM 18 MR. OBSTLER: 11:03AM 19 THEORY IN THE WHOLE CASE, IS THAT WE THINK THAT THE WEARING OF 11:03AM 20 THE TWO HATS AND THE USE OF THE COMPUTERS, BECAUSE THEY CAN'T 11:03AM 21 HAVE HUMANS DO THIS STUFF, HAS GOTTEN TO THE POINT WHERE IT HAS 11:03AM 22 GOTTEN ANTICOMPETITIVE. 11:03AM 23 11:03AM 24 TO AN ANTITRUST OR A UCL CLAIM, AND I RESPECT THAT. 11:03AM 25 UNDERSTAND THE ISSUE HERE IS COMMERCIAL ADVERTISING. THE COURT: ALL RIGHT. LET ME JUST ASK BECAUSE THERE SEEMS TO BE SOME AMBIGUITY ABOUT THIS IN THE BRIEFING. DO THE PLAINTIFFS ALSO ALLEGE AN 1125(A)(1)(A) FALSE AT THIS POINT WE'RE LIMITING UNDER FALSE ADVERTISING. OKAY. I HAVEN'T THOUGHT ABOUT THE FALSE ASSOCIATION CLAIM TO BE HONEST, YOUR HONOR. OKAY. THE CONCERN IS, AND IT GOES TO THE I UNDERSTAND THE LIMITS OF A LANHAM ACT CLAIM AS OPPOSED UNITED STATES COURT REPORTERS I I Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 217 of 239 30 11:03AM 1 UNDERSTAND THAT IT IS VERY LEGITIMATE FOR YOUR HONOR TO SAY, 11:03AM 2 BOY, IT'S A FACT -- IT'S SAYING YOU'RE RESTRICTED. 11:03AM 3 11:03AM 4 WHY WHEN YOU SEE THAT? 11:03AM 5 PEOPLE ARE SAYING WHY? 11:03AM 6 11:03AM 7 MATERIAL, WHY IS IT BEING RESTRICTED? 11:04AM 8 A FALSE STATEMENT. 11:04AM 9 11:04AM 10 11:04AM 11 11:04AM 12 RAISED AND THAT MR. WILLEN AND I SPENT SOME TIME DISCUSSING, 11:04AM 13 WHICH IS THAT WHETHER THERE IS IMMUNITY UNDER 230(C)(1) AND (2) 11:04AM 14 IN THE CONTEXT OF A CLAIM FOR INTENTIONAL DISCRIMINATION BASED 11:04AM 15 ON IDENTITY. 11:04AM 16 11:04AM 17 MOST IMPORTANT ISSUE IN THIS CASE, ABSOLUTELY THE MOST 11:04AM 18 IMPORTANT ISSUE IN THIS CASE AND ONE OF THE MOST IMPORTANT 11:04AM 19 ISSUES FOR THE INTERNET. 11:04AM 20 11:04AM 21 PREMISE THAT CONGRESS ENACTED THE LAW IN WHICH IT ALLOWED 11:04AM 22 INTERNET COMPANIES, EVEN IF THEY WANTED, TO SELF-REGULATE TO DO 11:04AM 23 SO BY FILTERING PEOPLE AND NOT CONTENT. 11:04AM 24 11:04AM 25 BUT THE QUESTION IS, YOUR HONOR, DON'T YOU ASK YOURSELF ISN'T IT REASONABLE TO SUGGEST THAT AND FURTHERMORE, IF THE VIDEO ISN'T CONTAINING THAT THAT IN AND OF ITSELF IS IT MAY NOT BE FALSE ADVERTISING. THE COURT: I UNDERSTAND YOUR THESIS FOR THE LANHAM ACT CLAIM. SO LET ME ASK YOU TO ADDRESS THE QUESTION THAT I HAD MR. OBSTLER: YES, YOUR HONOR. THIS IS PROBABLY THE IT'S DIFFICULT FOR ME TO BELIEVE, AND I START WITH THIS THERE IS NOTHING IN THE LANGUAGE OF (C)(1) OR (C)(2) THAT PERMITS THIS TYPE OF BEHAVIOR. NOTHING. IT SAYS MATERIAL, IT UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 218 of 239 31 11:05AM 1 DOESN'T SAY PEOPLE. 11:05AM 2 11:05AM 3 THEY'RE NOT FILTERING -- SO GOING TO (C)(1), LET ME MAKE ONE 11:05AM 4 POINT BEFORE WE GET INTO THE STATUTORY CONSTRUCTION OF THE 11:05AM 5 WHOLE THING. 11:05AM 6 11:05AM 7 DISMISSED THE CLAIM WAS THAT HE SAID THAT THERE WAS NO 11:05AM 8 ALLEGATION THAT GOOGLE ADDED ANYTHING TO THE CONTENT. 11:05AM 9 11:05AM 10 11:05AM 11 11:05AM 12 11:05AM 13 SAYING UNDER (C)(1), UNDER ROOMMATES, IF YOU'RE INVOLVED IN ANY 11:05AM 14 ASPECT OF WHAT THE CONTENT IS THAT IS BEING CENSORED, RIGHT, 11:05AM 15 THEN YOU DON'T GET IMMUNITY. 11:05AM 16 IN FACT, GOOGLE -- 11:05AM 17 11:05AM 18 THAT GOOGLE OR YOUTUBE IS ADDING METADATA TO YOUR CLIENT'S 11:06AM 19 CONTENT. 11:06AM 20 MR. OBSTLER: 11:06AM 21 THE COURT: 11:06AM 22 ADDITION OF CONTENT AS WITH PUBLISHING OR MAKING DECISIONS 11:06AM 23 ABOUT PUBLISHING? 11:06AM 24 11:06AM 25 OUR ALLEGATION IN THIS CASE IS THEY'RE FILTERING PEOPLE. ON (C)(1), THE REASON THAT, THAT PRAGER II, JUDGE WALSH WE HAVE THAT ALLEGATION IN THIS CASE. THE COURT: I'M SORRY, NO ALLEGATION THAT GOOGLE ADDED ANYTHING -MR. OBSTLER: THE COURT: ANYTHING TO MY CLIENT'S CONTENT. HE'S EVERYBODY AGREES IN ROOMMATES. ARE YOU REFERRING TO YOUR ALLEGATION YES. YES. AND THAT IS WHAT YOU'RE SAYING IS THE MR. OBSTLER: YES, BECAUSE THE METADATA IS WHAT THE ALGORITHM IS USING TO MAKE THE DECISION. UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 219 of 239 32 11:06AM 1 THE COURT: DOES A PUBLISHER NOT GET TO EDIT? 11:06AM 2 MR. OBSTLER: 11:06AM 3 CONTRACT WITH ITS AUTHOR THAT IT'S GOING TO BE VIEWPOINT 11:06AM 4 NEUTRAL DOESN'T GET TO DISCRIMINATE. 11:06AM 5 11:06AM 6 SIMON & SCHUSTER GET YOUR LICENSING RIGHTS BY YOU AGREEING TO A 11:06AM 7 TERM OF SERVICE AND SAYING WE'RE GOING TO GIVE YOU VIEWPOINT 11:06AM 8 NEUTRAL EDITING OF YOUR STUFF AND THEN TURN AROUND AND BREACH 11:06AM 9 THAT? 11:06AM 10 11:06AM 11 YOU'RE SAYING THAT THERE'S A BREACH OF CONTRACT HERE BETWEEN A 11:06AM 12 PUBLISHER AND AN AUTHOR, THAT WOULD BE ONE THING, BUT THAT'S 11:06AM 13 NOT WHAT WE'RE FOCUSSING ON RIGHT NOW. 11:06AM 14 11:07AM 15 TERMS PUBLISHING, AND I RAISED THIS QUESTION VERY DIRECTLY WITH 11:07AM 16 GOOGLE'S LAWYERS, DOES PUBLISHING INCLUDE DISCRIMINATING BASED 11:07AM 17 ON THE AUTHOR'S IDENTITY? 11:07AM 18 AND IS THAT AMONG THE FUNCTIONS A PUBLISHER IS ALLOWED TO 11:07AM 19 CONDUCT IN ITS ROLE AS A PUBLISHER AND THAT IS IMMUNIZED UNDER 11:07AM 20 (C)(1)? 11:07AM 21 11:07AM 22 YOUR ARGUMENT MAY BE SUBSTANTIALLY STRONGER UNDER (C)(2), BUT 11:07AM 23 UNDER (C)(1), IF THE PUBLISHER CAN CHOOSE WHAT TO PUBLISH AND 11:07AM 24 HOW, IT'S A VERY DIFFICULT ARGUMENT TO MAKE, AND THAT'S WHY I 11:07AM 25 WAS VERY INTERESTED IN THE QUESTION OF -- AND MR. WILLEN MADE YES, BUT A PUBLISHER WHO HAS A IN OTHER WORDS, IN OTHER WORDS, CAN THE -- CAN THE COURT: SO THAT'S A DIFFERENT QUESTION. IF WE'RE TALKING ABOUT WHAT IS ENCOMPASSED WITHIN (C)(1) IN WHAT DOES THAT LOOK LIKE? (C)(2) HAS A GOOD FAITH REQUIREMENT. (C)(1) DOES NOT. UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 220 of 239 33 11:07AM 1 THE POINT THAT THERE ARE CERTAIN KINDS OF CAUSES OF ACTION THAT 11:07AM 2 TAKE CONDUCT OUTSIDE OF THE SCOPE OF 230(C)(1), IS THAT -- IF I 11:08AM 3 WERE TO CONSTRUE YOUR CLAIM THIS WAY, AND THERE'S A DEBATE 11:08AM 4 ABOUT WHETHER IT'S APPROPRIATE TO CONSTRUE IT THIS WAY GIVEN 11:08AM 5 THE FACTS THAT ARE ALLEGED IN YOUR COMPLAINT, THAT THERE WAS 11:08AM 6 INTENTIONAL DISCRIMINATION BASED ON IDENTITY AS OPPOSED TO 11:08AM 7 CONTENT, WHAT IS YOUR BEST CASE FOR SAYING THAT 230(C)(1) DOES 11:08AM 8 NOT ENCOMPASS THAT? 11:08AM 9 11:08AM 10 IMMUNIZE THEM AS TO THE SPECIFIC CAUSES OF ACTION IN THE CASE; 11:08AM 11 RIGHT? 11:08AM 12 11:08AM 13 11:08AM 14 11:08AM 15 11:08AM 16 THE COURT: 11:08AM 17 MR. OBSTLER: 11:08AM 18 THE COURT: 11:08AM 19 YOU HAVE BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR 11:08AM 20 DEALING, WHICH THAT'S A HARD ONE IN ANY CIRCUMSTANCE, 11:08AM 21 ESPECIALLY GIVEN THE ALLEGED CONTRACT TERMS THAT YOU CITE 11:08AM 22 SAYING THAT THERE WAS A BREACH OF THE IMPLIED COVENANT IS 11:09AM 23 REALLY DIFFICULT JUST ON A 12(B)(6) BASIS. 11:09AM 24 11:09AM 25 MR. OBSTLER: THE COURT: THE QUESTION IS DOES 230(C)(1) YES. YES. SO THE UNRAH ACT IS THE ONLY ONE THAT I THINK GIVES YOU A LEG TO STAND ON. MR. OBSTLER: WHAT ABOUT BREACH OF CONTRACT, YOUR HONOR? I'M SORRY? WHAT ABOUT BREACH OF CONTRACT? SO YOU DON'T HAVE BREACH OF CONTRACT. SO YOU DON'T HAVE A BREACH OF CONTRACT CLAIM. MR. OBSTLER: WELL, YOUR HONOR, WOULD YOU GIVE ME UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 221 of 239 11:09AM 1 11:09AM 2 11:09AM 3 11:09AM 4 11:09AM 5 11:09AM 6 THE COURT: 11:09AM 7 MR. OBSTLER: 11:09AM 8 COVERAGE HERE BECAUSE THEY'RE ADDING OUR CONTENT, SO JUST ON 11:09AM 9 THE FACE OF THE STATUTE. 11:09AM 10 NUMBER TWO, CAN CONGRESS ENACT A LAW THAT IMMUNIZES 11:09AM 11 PUBLISHERS FROM RACE DISCRIMINATION IN THE ACT OF PUBLISHING? 11:09AM 12 IS THAT LAW CONSTITUTIONAL? 11:09AM 13 11:09AM 14 11:09AM 15 11:09AM 16 WOULD BE IF (C)(1) DOES ALLOW IT, IT HAS TO BE 11:09AM 17 UNCONSTITUTIONAL? 11:09AM 18 MR. OBSTLER: 11:09AM 19 THE COURT: 11:09AM 20 CALL IT INTENTIONAL DISCRIMINATION BASED ON SOME PROTECTED 11:10AM 21 CHARACTERISTIC, THAT KIND OF STATUTE HAS TO BE 11:10AM 22 UNCONSTITUTIONAL? 11:10AM 23 MR. OBSTLER: 11:10AM 24 THE COURT: 11:10AM 25 MR. OBSTLER: 34 LEAVE TO AMEND AND ADD IT? THE COURT: WELL, BEFORE WE GET TO THAT, I'M JUST REALLY VERY INTERESTED IN THIS QUESTION. MR. OBSTLER: I AM, TOO, YOUR HONOR. LET ME TAKE ANOTHER SHOT AT IT, PLEASE, IF I COULD. SO WHAT IS THE BEST CASE THAT YOU HAVE? OKAY. NUMBER ONE, THERE IS NO (C)(1) I WOULD SAY THAT UNDER DENVER AREA IT IS NOT. THAT'S MY ARGUMENT. THE COURT: YOUR RESPONSE TO THE COURT'S QUESTION THAT'S CORRECT. IT DOES IMMUNIZE THAT KIND OF -- LET'S YES, YOUR HONOR. WHY? BECAUSE UNDER DENVER AREA THE COURT UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 222 of 239 35 11:10AM 1 SAID THAT A CONGRESSIONAL ACT THAT DOES PERMISSIVE SPEECH 11:10AM 2 REGULATION AND THE GRANTING OF IMMUNITY THAT THEY -- I MEAN, I 11:10AM 3 WOULD BE ABLE TO SUE THEM, RIGHT, BUT FOR THE CDA. 11:10AM 4 11:10AM 5 HAS OFTEN BEEN CITED, AND IT'S WHY WE CAME TO THE GAME LATE IN 11:10AM 6 DENVER, AND I WANT TO APOLOGIZE ON THAT. 11:10AM 7 WITHDREW EARLY ON THAT ONE. 11:10AM 8 11:10AM 9 11:10AM 10 OR NOT THEY'RE STATE ACTORS AND WHETHER STATE ACTORS -- AND THE 11:10AM 11 CABLE COMPANY SAID THEY'RE NOT STATE ACTORS. 11:10AM 12 PERMISSION TO BLOCK THINGS THAT ARE INDECENT BE IN ANY WAY BE 11:10AM 13 SUBJECT TO THE FIRST AMENDMENT? 11:11AM 14 11:11AM 15 COURT SAID IS, YES, IT'S BEING DONE FOR A CONGRESSIONAL ACT, 11:11AM 16 BUT FOR THAT ACT YOU AND I ARE NOT HAVING THAT DISCUSSION. 11:11AM 17 MAY BE HAVING A DISCUSSION ABOUT WHETHER I STATED A CLAIM, BUT 11:11AM 18 FOR CONGRESSIONAL LAW THAT ALLOWS THEM IMMUNITY ON THESE 11:11AM 19 CLAIMS, WE'RE NOT HAVING THIS DISCUSSION. 11:11AM 20 11:11AM 21 NOT A STATE ACTION ISSUE, IT'S WHETHER THE STATUTE PASSES 11:11AM 22 MUSTER JUST LIKE SECTION 10(C) OF THE CABLE ACT UNDER 11:11AM 23 DENVER AREA. 11:11AM 24 WHAT DID THE COURT SAY? 11:11AM 25 GOT TO BE VIEWPOINT NEUTRAL. SO THEY ARE -- WHAT THE COURT SAID IN DENVER AREA, WHICH I HAVE TO ADMIT I DENVER AREA WAS A FIGHT INITIALLY OVER WHETHER OR NOT, EXACTLY WHAT THE GOVERNMENT AND MR. WILLEN ARE MAKING, WHETHER HOW CAN THEIR AND WHAT JUSTICE BREYER AND SIX JUDGES ON THE SUPREME WE SO IF THEY'RE GETTING IMMUNITY UNDER THIS STATUTE, IT'S THREE THINGS. NOT VIEWPOINT NEUTRAL IN UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 223 of 239 36 11:11AM 1 THIS CASE. 11:11AM 2 11:11AM 3 11:11AM 4 11:11AM 5 11:11AM 6 11:11AM 7 WITHSTAND SCRUTINY UNDER DENVER. 11:12AM 8 STATUTE JUST LIKE SECTION 10(C) OF THE CABLE ACT. 11:12AM 9 11:12AM 10 HONESTLY, THAT THAT -- THAT THIS CASE FITS THE MOLD OF 11:12AM 11 PERMISSIVE REGULATION IN DENVER AREA. 11:12AM 12 11:12AM 13 ME JUST MAKE SURE YOU DON'T HAVE ANYTHING FURTHER THAT YOU 11:12AM 14 WOULD LIKE TO MAKE SURE THAT THE COURT HEARS IN TERMS OF YOUR 11:12AM 15 ARGUMENT, ANYTHING YOU WOULD LIKE TO ADDRESS FURTHER IN SUPPORT 11:12AM 16 OF YOUR OPPOSITION. 11:12AM 17 11:12AM 18 11:12AM 19 THE COURT: 11:12AM 20 MR. OBSTLER: 11:12AM 21 YOUR HONOR, BECAUSE YOU SAY IT SOUNDS LIKE A STRETCH. 11:12AM 22 BE CURIOUS IN KNOWING WHY YOUR HONOR BELIEVES THAT BECAUSE I 11:12AM 23 DON'T UNDERSTAND THE DIFFERENCE BETWEEN A STATUTE THAT WAS 11:12AM 24 ENACTED TO REGULATE IN INDECENT MATERIAL ON CABLE TELEVISION 11:12AM 25 CHANNELS AND A STATUTE THAT WAS ENACTED OSTENSIBLY TO ALLOW GOT TO BE NARROWLY TAILORED SO THERE'S NO RISK OF AN IMPROPER VETO. AND MOST IMPORTANTLY, IT CANNOT INTERFERE WITH PREEXISTING LEGAL RELATIONSHIPS. THIS IS SPOT ON WITH DENVER, AND THIS STATUTE CANNOT THE COURT: OKAY. IT IS A PERMISSIVE SPEECH THAT SEEMS LIKE A STRETCH I'LL LET THE GOOGLE FOLKS RESPOND ON THAT POINT, BUT LET MR. OBSTLER: WELL, I WANTED TO TALK ABOUT THE EXECUTIVE ORDER. OH, YES. BUT I WANT TO COME BACK TO THIS POINT, UNITED STATES COURT REPORTERS AND I'D Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 224 of 239 37 11:12AM 1 PRIVATE PARTIES TO REGULATE OFFENSIVE MATERIAL ON THE INTERNET. 11:13AM 2 11:13AM 3 DISTINCTIONS HERE IS THAT SECTION 230(C) PERMITS PRIVATE 11:13AM 4 PARTIES TO DO THEIR OWN SELF-REGULATION. 11:13AM 5 THERE'S NOTHING -- THERE'S NOTHING THAT IS REQUIRED. 11:13AM 6 OR MAY NOT. 11:13AM 7 11:13AM 8 11:13AM 9 11:13AM 10 THE COURT: 11:13AM 11 MR. OBSTLER: 11:13AM 12 JUSTICE BREYER MADE. 11:13AM 13 THERE WAS A MANDATORY PORTION AND A PERMISSIVE PORTION. 11:13AM 14 WAS THE PERMISSIVE PORTION. 11:13AM 15 BUT THEY'RE PERMITTED TO DO IT, AND THE COURT SAID THAT IS 11:13AM 16 UNCONSTITUTIONAL. 11:13AM 17 11:13AM 18 MAKING, AND I THINK THAT'S SQUARE WITH DENVER ON THE SECTION 11:14AM 19 10(C) CLAIM. 11:14AM 20 11:14AM 21 POINT, BUT LET ME GIVE YOU AN OPPORTUNITY TO ADDRESS THE OTHER 11:14AM 22 MATTERS THAT YOU SAID YOU WANTED TO ADDRESS, THE EXECUTIVE 11:14AM 23 ORDER. 11:14AM 24 11:14AM 25 THE COURT: I THINK AT LEAST ONE OF THE KEY THERE'S NO MANDATE. THEY MAY AND IF THEY DO, THEY'RE IMMUNIZED. IT PROVIDES PROTECTION FROM LIABILITY. THAT'S WHAT IT IS. IT'S NOT A MANDATE TO REGULATE IN ANY WAY, SHAPE OR FORM. MR. OBSTLER: I AGREE WITH YOU. I THINK IT'S AN IMPORTANT DISTINCTION. THAT'S EXACTLY THE POINT THAT HE SAID THIS IS A PERMISSIVE PORTION. 10(C) IT DOESN'T REQUIRE THEM TO DO IT I COMPLETELY AGREE WITH THE DISTINCTION THAT YOUR HONOR IS THE COURT: WELL, I'LL HEAR FROM GOOGLE ON THAT MR. OBSTLER: THE REASON WE CAME IN WITH THE EXECUTIVE ORDER IS THAT WE JUST WEREN'T CLEAR REALLY ON WHAT UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 225 of 239 38 11:14AM 1 THE GOVERNMENT'S POSITION REALLY IS. 11:14AM 2 THE COURT: 11:14AM 3 MR. OBSTLER: 11:14AM 4 SAY IT CAN APPLY TO THE VIEWPOINT, IT'S CONSTITUTIONAL, IT CAN 11:14AM 5 APPLY TO A VIEWPOINT, IT CAN APPLY TO DISCRIMINATION. 11:14AM 6 11:14AM 7 IT'S THE POLICY OF THE UNITED STATES AND THE DEPARTMENT OF 11:14AM 8 JUSTICE IS DIRECTED TO DO EVERYTHING THAT THEY ARE ALLEGING IN 11:14AM 9 THEIR BRIEF. 11:14AM 10 11:14AM 11 AT SOME POINT THEN I DON'T KNOW IF WE HAVE A NEW ISSUE HERE OR 11:14AM 12 WHAT. 11:14AM 13 ARGUING THAT THE EXECUTIVE ORDER IS JUST SIMPLY NOT 11:14AM 14 ENFORCEABLE. I'M NOT GOING TO TAKE A VIEW ON THAT, AND I DON'T 11:14AM 15 REALLY CARE. AND I AGREE WITH YOUR HONOR, I DON'T THINK IT 11:15AM 16 REALLY MATTERS BECAUSE I THINK AT THE END OF THE DAY I THINK 11:15AM 17 THE STATUTE ON ITS FACE DOESN'T APPLY, AND I THINK THE STATUTE 11:15AM 18 IS UNCONSTITUTIONAL. 11:15AM 19 11:15AM 20 SQUARE THAT EXECUTIVE ORDER AND HIM DIRECTING THE DEPARTMENT OF 11:15AM 21 JUSTICE AND SITTING THERE WITH BILL BARR WHEN THEY ANNOUNCED 11:15AM 22 THE ORDER WITH WHAT WAS IN THEIR BRIEF. 11:15AM 23 REASON WE WANTED TO. 11:15AM 24 THE COURT: 11:15AM 25 ALL RIGHT. THEY FILED THIS BRIEF, RIGHT, AND THEY AND THEN I READ SECTION 2 OF THE EXECUTIVE ORDER SAYING SO I ONLY BRING IT UP TO SAY IF THE ORDER IS ENFORCEABLE AND IF THE ORDER IS NOT ENFORCEABLE, THEN THEY'RE BUT THE ONLY REASON I BROUGHT IT UP WAS JUST I COULD NOT THAT WAS THE ONLY WELL, LET ME GIVE MR. SUR AN OPPORTUNITY TO ADDRESS THE EXECUTIVE ORDER BUT ALSO ANY OTHER MATTERS UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 226 of 239 39 11:15AM 1 RAISED IN THE GOVERNMENT'S MEMORANDUM ON THE CONSTITUTIONALITY 11:15AM 2 QUESTION. 11:15AM 3 11:15AM 4 11:15AM 5 11:15AM 6 START THERE BUT MAYBE JUST TRY TO REITERATE IN OUR BRIEF IN 11:15AM 7 POINT ONE WE SIMPLY ARE RELYING ON ONE OF SEVERAL DOCTRINES OF 11:15AM 8 CONSTITUTIONAL AVOIDANCE, THE DOCTRINE THAT SAYS DECIDE THE 11:15AM 9 STATUTORY QUESTIONS FIRST. 11:15AM 10 MUCH OF THE DISCUSSION TODAY WAS ABOUT THE POTENTIAL 11:16AM 11 NUANCES OF THE STATUTE AND, RECENTLY OR NOT, TAKING A POSITION 11:16AM 12 ON THAT. 11:16AM 13 11:16AM 14 YOUR HONOR HAS BEEN WELL FURNISHED, I THINK, BY THE OPPOSING 11:16AM 15 VIEWS ON THE STATUTORY QUESTION, SIMILARLY WITH THE STATE LAW 11:16AM 16 CLAIMS AS WELL. 11:16AM 17 11:16AM 18 CONSTITUTIONAL QUESTION, THAT THERE REALLY IS NO PRECEDENT THAT 11:16AM 19 WOULD SUPPORT HOLDING THE STATUTE TO BE UNCONSTITUTIONAL, 11:16AM 20 PRINCIPALLY FOR THE REASONS THAT HAVE ALREADY BEEN DISCUSSED ON 11:16AM 21 THAT. 11:16AM 22 11:16AM 23 TRANSFORM THE NOTION OF STATE ACTION. 11:16AM 24 THAT THE COURT OF APPEALS AFFIRMED IN PRAGER UNIVERSITY, 11:16AM 25 ALTHOUGH THE COURT OF APPEALS OPINION DIDN'T ADDRESS MR. SUR. MR. SUR: THANK YOU VERY MUCH. SINCE THE EXECUTIVE ORDER HAS COME UP, I GUESS I WILL BUT OF COURSE THE PARTIES ARE WELL VERSED ON THAT AND SO POINT TWO SIMPLY ARGUES THAT IF THE COURT DOES REACH THE BUT JUST THE ONE NOTE I WOULD ADD IS DENVER AREA DID NOT JUDGE KOH IN THE OPINION UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 227 of 239 40 11:16AM 1 DENVER AREA, JUDGE KOH DID REJECT RELIANCE ON IT IN THE 11:16AM 2 UNPUBLISHED OPINION THAT THEN WENT UP TO THE NINTH CIRCUIT AND 11:17AM 3 SO I DO NOTE THAT. 11:17AM 4 11:17AM 5 THE NINTH CIRCUIT'S OPINION IN ROBERTS VERSUS AT&T MOBILITY, 11:17AM 6 WHICH IS AT 877 F.3D 833, WAS REALLY A DETAILED ANALYSIS OF 11:17AM 7 THE, QUOTE, "SPLINTERED DECISION" IN DENVER AREA, AND REALLY 11:17AM 8 INFORMS ANY ATTEMPT TO APPLY IT CERTAINLY FOR THE COURTS WITHIN 11:17AM 9 THE NINTH CIRCUIT. 11:17AM 10 11:17AM 11 DENVER AREA DOESN'T TRANSFORM THE NOTION OF THE STATE ACTION IN 11:17AM 12 A WAY THAT WOULD REALLY, REALLY CHANGE ANYTHING THAT WE HAVE 11:17AM 13 SAID IN THE BRIEF. 11:17AM 14 11:17AM 15 11:17AM 16 11:17AM 17 A WHOLE AND IN THAT RESPECT I DO THINK THAT IT IS NOT 11:17AM 18 INSIGNIFICANT THAT THE ORDER HAS A SET OF GENERAL PROVISIONS AT 11:18AM 19 THE END THAT APPLY TO ANY ATTEMPT TO READ THE ORDER ANYWHERE. 11:18AM 20 SO ONE OF THOSE GENERAL PROVISIONS, AND I REALIZE IT 11:18AM 21 BECAUSE THEY APPEAR OFTEN IN GENERAL PROVISIONS, MAYBE THEY 11:18AM 22 DON'T GET THAT MUCH ATTENTION, BUT IT DOES WARRANT SPECIAL 11:18AM 23 ATTENTION IN THE ATTEMPT TO RELY ON HERE. 11:18AM 24 11:18AM 25 AND AS HAS ALREADY BEEN MENTIONED, BUT I WILL REITERATE, SO WE THINK THAT VERY HELPFULLY CLARIFIES THAT THE HAVING MADE THOSE POINTS, LET ME THEN TURN VERY BRIEFLY TO THE EXECUTIVE ORDER. I THINK IT IS HELPFUL TO CONSIDER THE TEXT OF THE ORDER AS SECTION 8, LETTER C SAYS THAT THE ORDER IS NOT INTENDED TO AND DOES NOT CREATE ANY RIGHT OR BENEFIT, SUBSTANTIVE OR UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 228 of 239 41 11:18AM 1 PROCEDURAL, ENFORCEABLE AT LAW OR IN EQUITY BY ANY PARTY 11:18AM 2 AGAINST THE UNITED STATES, ITS DEPARTMENTS, AGENCIES OR 11:18AM 3 ENTITIES, ITS OFFICERS, EMPLOYEES OR AGENTS OR ANY OTHER 11:18AM 4 PERSON. 11:18AM 5 11:18AM 6 SECTION 8(C) SOMEHOW DIDN'T APPLY, I DO THINK TAKING EACH 11:19AM 7 SECTION IN TURN, THE COURT WILL SEE THAT THESE ARE ABOUT POLICY 11:19AM 8 AND THEY MAY BE EXPRESSED AT LENGTH, BUT THEY ARE ALL POINTS 11:19AM 9 ABOUT POLICY AND ESSENTIALLY DIRECTING VARIOUS EXECUTIVE BRANCH 11:19AM 10 ACTORS TO DO VARIOUS THINGS BUT DON'T GO INTO ANY QUESTION OF 11:19AM 11 CONSTITUTIONALITY. 11:19AM 12 11:19AM 13 REALLY WHAT IT BRINGS OUR ATTENTION BACK TO IS PAGE 999 OF THE 11:19AM 14 OPINION OF THE COURT OF APPEALS IN PRAGER WHERE BEFORE THEY 11:19AM 15 CONCLUDED THEIR DISCUSSION OF A FIRST AMENDMENT THEY SAID THAT 11:19AM 16 THE PARTIES IN PRAGER UNIVERSITY HAD PROVIDED EXTENSIVE 11:19AM 17 ARGUMENTS ABOUT WHAT MIGHT HAPPEN IF THE COURT RULED ONE WAY OR 11:19AM 18 ANOTHER AND WHILE THOSE POLICY CONCEPTS WERE, QUOTE, 11:19AM 19 "IMPORTANT," THE COURT OF APPEALS IN THE NINTH CIRCUIT FOCUSSED 11:19AM 20 ON THE FIRST AMENDMENT DOCTRINE. 11:19AM 21 11:19AM 22 MOST THE EXECUTIVE ORDER INDICATES THAT THERE MAY BE IMPORTANT 11:19AM 23 POLICY ISSUES SOMEWHERE IN THE GENERAL REALM OF SECTION 230, 11:20AM 24 BUT THAT THOSE ARE NOT BEFORE THE COURT IN ASSESSING THE 11:20AM 25 CONSTITUTIONALITY OF THE STATUTE. SO I THINK WE HAVE TO START THERE. THEN EVEN IF ONE WERE TO ASSUME IN THE ALTERNATIVE THAT REALLY THE ONLY POINT I WOULD MAKE ABOUT POLICY IS THAT I THINK A SIMILAR CONCLUSION IS APPROPRIATE HERE THAT AT UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 229 of 239 42 11:20AM 1 REALLY WITH THAT I WILL CONCLUDE, UNLESS THE COURT HAS ANY 11:20AM 2 11:20AM 3 11:20AM 4 11:20AM 5 MR. SUR: 11:20AM 6 THE COURT: 11:20AM 7 GOOGLE, YOUTUBE BUT -- WELL, ANYTHING THAT YOU WOULD LIKE TO 11:20AM 8 RESPOND TO FROM MY CONVERSATION WITH MR. OBSTLER, BUT I AM 11:20AM 9 INTERESTED IN THE -- IF YOU HAVE ANYTHING FURTHER TO ADD ON THE 11:20AM 10 11:20AM 11 11:20AM 12 AND TALK ABOUT A COUPLE OF THINGS RELATED TO SECTION 230, AND I 11:20AM 13 CAN LET MS. WHITE TALK ABOUT THINGS RELATED TO THE UNRAH ACT 11:20AM 14 AND THE LANHAM ACT. 11:20AM 15 11:20AM 16 RIGHTLY POINTED TO THE NINTH CIRCUIT'S DECISION IN ROBERTS 11:20AM 17 WHICH AT LENGTH EXPLAINS THE VERY, VERY LIMITED, IF ANY, IMPORT 11:21AM 18 OF DENVER AREA ON THE QUESTION OF STATE ACTION. 11:21AM 19 11:21AM 20 MAJORITY OPINION IN THE DENVER AREA CASE. 11:21AM 21 MR. OBSTLER IS RELYING ON IS JUSTICE BREYER'S OPINION FOR FOUR 11:21AM 22 JUSTICES THAT DOES NOT SPEAK FOR THE COURT. 11:21AM 23 AND JUSTICE GINSBERG SUPPLIED TWO ADDITIONAL VOTES BUT ON A 11:21AM 24 VERY, VERY DIFFERENT THEORY. 11:21AM 25 FURTHER QUESTION. THE COURT: VERY HELPFUL. THANK YOU VERY MUCH, MR. SUR. THAT WAS I APPRECIATE IT. THANK YOU. ALL RIGHT. SO I WOULD LIKE TO HEAR FROM DENVER AREA POINT AND ITS SIGNIFICANCE. MR. WILLEN: SURE. SO WHY DON'T I START WITH THAT WITH RESPECT TO DENVER AREA, I THINK MR. OBSTLER HAS SO ROBERTS POINTS OUT, FIRST OF ALL, THAT THERE'S NO THE OPINION THAT JUSTICE KENNEDY SO JUSTICE BREYER'S OPINION DOESN'T BY ITS OWN TERMS SAY UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 230 of 239 43 11:21AM 1 THAT PERMISSIVE SPEECH REGULATION IS SUBJECT TO SOME BRAND NEW 11:21AM 2 FIRST AMENDMENT SCRUTINY. 11:21AM 3 PROVISION OF THE CABLE ACT, AND I THINK THE MOST IMPORTANT 11:21AM 4 POINT ABOUT THAT IS THAT IN ALLOWING THE CABLE COMPANIES TO 11:21AM 5 CENSOR, IT ALLOWED THEM TO CENSOR ONLY A PARTICULAR CONTENT 11:21AM 6 BASED SET OF MATERIALS, WHICH WAS SEXUALLY EXPLICIT CONTENT, SO 11:22AM 7 IT WAS VERY LIMITED IN THAT RESPECT, AND THE STATUTE WAS 11:22AM 8 ENACTED AGAINST A BACKDROP THAT THE CASE INVOLVED PUBLIC ACCESS 11:22AM 9 CHANNELS AND ACCESS CHANNELS ON CABLE NETWORK AND THE VERY 11:22AM 10 11:22AM 11 11:22AM 12 11:22AM 13 SECONDLY, AND I THINK EVEN MORE IMPORTANTLY, PRIOR TO THE 11:22AM 14 ENACTMENT OF THE STATUTE IN QUESTION, THE LAW FORBAD THE CABLE 11:22AM 15 COMPANIES FROM ENGAGING IN ANY CONTENT BASED OR ANY REAL 11:22AM 16 EDITORIAL DISCRETION WITH RESPECT TO THESE CHANNELS. 11:22AM 17 SO IT COMPLETELY CHANGED THE BACKGROUND LEGAL PRINCIPLES 11:22AM 18 WITH RESPECT TO THE RIGHT OF THE CABLE COMPANIES TO ENGAGE IN 11:22AM 19 CONTENT RESTRICTION. 11:22AM 20 11:22AM 21 HAVE A STATUTE THAT IS NOT CONTENT BASED. 11:22AM 22 AS I THINK THE COURT POINTED OUT, SIMPLY SAYS THAT YOU CANNOT 11:22AM 23 BE TREATED AS A PUBLISHER FOR ANY SPEECH, SO WHETHER YOU ARE 11:23AM 24 RESTRICTING ACCESS TO CONTENT, WHETHER YOU ARE NOT RESTRICTING 11:23AM 25 ACCESS TO CONTENT, AND CERTAINLY NOT WITH RESPECT TO ANY GIVEN IT CONSTRUES A VERY, VERY SPECIFIC SPECIFIC CONTEXT. ONE, THESE CHANNELS WERE HEAVILY REGULATED AND THE COURT AND JUSTICE BREYER'S OPINION NOTED AND RELIED ON. THAT'S COMPLETELY DIFFERENT FROM WHAT WE HAVE HERE. WE SECTION 230(C)(1), UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 231 of 239 44 11:23AM 1 CATEGORY OF CONTENT, SECTION 230(C) WILL PROTECT YOU. SO IT'S 11:23AM 2 NOT EVEN CLOSE TO CONTENT BASED AND VIEWPOINT BASED. 11:23AM 3 11:23AM 4 PRIOR TO SECTION 230 WAS THAT ONLINE PLATFORMS, PARTICULARLY 11:23AM 5 PLATFORMS, THE PROGENITORS OF WHAT WE HAVE NOW, GOOGLES AND 11:23AM 6 TWITTERS, HAD FULL DISCRETION, COMPLETE EDITORIAL DISCRETION 11:23AM 7 AND INDEED A FIRST AMENDMENT RIGHT TO MAKE EDITORIAL 11:23AM 8 DETERMINATIONS ABOUT WHAT SPEECH APPEARS ON THEIR PLATFORM. 11:23AM 9 11:23AM 10 THAT DIDN'T EXIST BEFORE WHEREAS DENVER AREA VERY MUCH WAS. 11:23AM 11 THAT'S THE FIRST GENERAL POINT. 11:23AM 12 11:23AM 13 OPINION WHICH SUPPLIED THE SORT OF DECISIVE VOTES FOR THE 11:23AM 14 PROPOSITION THAT AT LEAST THE ONE PROVISION WAS 11:24AM 15 UNCONSTITUTIONAL, THAT WHOLE DECISION WAS BASED ON THE 11:24AM 16 PROPOSITION THAT AT LEAST IN PUBLIC ACCESS CHANNELS WERE A 11:24AM 17 PUBLIC FORUM UNDER THE CONSTITUTION BECAUSE IT WAS SO HEAVILY 11:24AM 18 REGULATED AND WHAT I JUST MENTIONED. 11:24AM 19 11:24AM 20 REALLY IMPORTANT HERE BECAUSE WE KNOW -- THE THING WE KNOW FROM 11:24AM 21 PRAGER IS THAT YOUTUBE IS NOT A CONSTITUTIONAL PUBLIC FORUM. 11:24AM 22 SO GIVEN THAT, IT'S A COMPLETELY DIFFERENT CASE. 11:24AM 23 AND I THINK IT'S QUITE TELLING THAT IN THE HALLECK CASE, 11:24AM 24 OF COURSE THE SUPREME COURT'S MOST RECENT DISCUSSION OF STATE 11:24AM 25 ACTION, THE ONE REFERENCE TO DENVER AREA THAT IS MOST -- AND THEN SECONDLY, AND JUST AS IMPORTANTLY, THE BACKGROUND SO SECTION 230 WASN'T CREATING SOME NEW EDITORIAL RIGHT SO THE SECOND POINT IS WITH RESPECT TO JUSTICE KENNEDY'S JUSTICE BREYER'S OPINION DIDN'T GET INTO THAT, BUT THAT'S UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 232 of 239 45 11:24AM 1 THE OPERATOR: THE RECORDING HAS STOPPED. 11:24AM 2 MR. WILLEN: 11:24AM 3 THIS IS A QUOTE FOR THE PROPOSITION THAT THE FREE SPEECH DOES 11:24AM 4 NOT PROHIBIT PRIOR ABRIDGEMENT OF SPEECH. 11:24AM 5 11:25AM 6 THAT DENVER AREA HAS ANY SIGNIFICANCE, IT'S SIMPLY LIMITED TO 11:25AM 7 ITS UNIQUE FACTS AND DOESN'T APPLY HERE. 11:25AM 8 DENVER AREA. 11:25AM 9 11:25AM 10 MR. OBSTLER, WE DIDN'T GET A CHANCE TO TALK ABOUT SECTION 11:25AM 11 230(C)(2)(D). 11:25AM 12 230(C)(1). 11:25AM 13 11:25AM 14 IMMUNITY THAT CLEARLY APPLIES, AS WE KNOW FROM THE 11:25AM 15 PRAGER DECISION, WITH RESPECT TO ANY CLAIM ARISING FROM 11:25AM 16 RESTRICTED MODE. 11:25AM 17 JUDGE DAVILA'S RECENT OPINION IN ASURVIO VERSUS MALWAREBYTES 11:25AM 18 CASE, THE ALLEGATIONS HERE THAT THERE IS SOME SORT OF 11:25AM 19 COMPETITIVE RELATIONSHIP JUST AREN'T ENOUGH TO GET PLAINTIFFS 11:25AM 20 OUTSIDE OF SECTION 230(C)(2)(B), SO THE COURT HAS ANOTHER PATH 11:25AM 21 AT LEAST WITH RESPECT TO A LOT OF THE CLAIMS HERE. 11:26AM 22 11:26AM 23 MR. OBSTLER WAS, TELLINGLY, NOT ABLE TO CITE ANY CASE THAT 11:26AM 24 HELPED HIM ON THE PROPOSITION THAT SECTION 230(C)(1) WOULDN'T 11:26AM 25 APPLY TO A CLAIM UNDER THE UNRAH ACTS UNDER THE CIRCUMSTANCES EXCUSE ME. CITING DENVER AREA, AND SO THE SUPREME COURT HAS SPOKEN TO THIS. TO THE EXTENT SO THAT IS THE OTHER COUPLE THINGS I WOULD WANT TO SAY IN RESPONSE TO WE SPENT MOST OF OUR TIME TALKING ABOUT SECTION AS WE ARGUED, SECTION 230(C)(2)(B) IS SORT OF A SEPARATE AND I THINK FOR THE REASONS SET OUT IN AND THEN I GUESS THE ONLY OTHER POINT I WOULD MAKE IS THAT UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 233 of 239 46 11:26AM 1 THAT WE HAVE HERE, AND THAT'S WHY HE RESORTED TO THE ARGUMENT 11:26AM 2 THAT THE STATUTE WOULD BE UNCONSTITUTIONAL IF APPLIED THAT WAY, 11:26AM 3 AND I DON'T THINK IT WOULD. 11:26AM 4 SERIOUS ARGUMENT THAT IT WOULD, BUT HIS INABILITY TO POINT TO 11:26AM 5 ANY CASE LAW THAT HELPS HIM ON THE APPLICATION OF THE -- 11:26AM 6 THE OPERATOR: 11:26AM 7 MR. WILLEN: 11:26AM 8 11:26AM 9 11:26AM 10 11:26AM 11 11:26AM 12 11:26AM 13 11:26AM 14 I'LL BEGIN JUST BRIEFLY ON THE LANHAM ACT QUESTION. 11:27AM 15 YOUR HONOR CORRECTLY RECOGNIZED, TO STATE A CLAIM UNDER THAT 11:27AM 16 STATUTE PLAINTIFFS HAVE TO ALLEGE THAT YOUTUBE MADE A FALSE OR 11:27AM 17 MISLEADING STATEMENT IN COMMERCIAL ADVERTISING, AND THEY 11:27AM 18 HAVEN'T DONE THAT. 11:27AM 19 RESTRICTED MODE DOES AND WHAT RESTRICTED GUIDELINES ARE, BUT 11:27AM 20 THOSE STATEMENTS ARE WHAT THE NINTH CIRCUIT HELD WERE NOT 11:27AM 21 COMMERCIAL ADVERTISING IN PRAGER. 11:27AM 22 11:27AM 23 PLAINTIFFS' VIDEOS, AND I'LL NOTE THAT I THINK ONLY FOUR OF THE 11:27AM 24 NAMED PLAINTIFFS SPECIFICALLY ALLEGE THAT ANY OF THEIR VIDEOS 11:27AM 25 HAVE BEEN MADE UNAVAILABLE IN UNRESTRICTED MODE, BUT WITH AND I DON'T THINK THERE'S ANY THIS MEETING IS BEING RECORDED. -- I THINK IS VERY TELLING. SO WITH THAT I WILL TURN IT OVER TO MS. WHITE AND LET HER TALK ABOUT THE LANHAM ACT AND ANYTHING ELSE THAT SHE WANTS TO SAY IN RESPONSE TO WHAT WE HAVE HEARD. THE COURT: THANK YOU, MR. WILLEN. MS. WHITE. MS. WHITE: THANK YOU. AS THEY REFER TO STATEMENTS ABOUT WHAT THEY ALSO SUGGEST THAT THE DESIGNATION OF SOME OF UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 234 of 239 47 11:27AM 1 RESPECT TO THOSE, THEY ARGUE THAT THAT DESIGNATION SOMEHOW 11:27AM 2 BRANDS THEM IN A NEGATIVE LIGHT, BUT THE NINTH CIRCUIT 11:27AM 3 ADDRESSED THAT ARGUMENT DIRECTLY AS WELL AND HELD THAT THAT 11:27AM 4 DESIGNATION IS NOT MADE IN COMMERCIAL ADVERTISING PROMOTION AND 11:28AM 5 THAT'S ON PAGE 1,000 OF THE COURT'S OPINION. 11:28AM 6 11:28AM 7 PLAINTIFFS' VIDEOS WERE MADE UNAVAILABLE IN RESTRICTED MODE, 11:28AM 8 ONE, THOSE REASONS WERE NOT MADE PUBLIC, AND, TWO, THOSE 11:28AM 9 REASONS WOULD BE A MATTER OF OPINION WHICH WOULD NOT BE 11:28AM 10 ACTIONABLE AS A FALSE STATEMENT, AND, AGAIN, NOT A STATEMENT 11:28AM 11 MADE IN FURTHERANCE OF COMMERCIAL ADVERTISING OR PROMOTION. 11:28AM 12 11:28AM 13 LANHAM ACT, I'LL JUST CONCLUDE BY ADDRESSING THE QUESTIONS 11:28AM 14 ABOUT THE UNRAH ACT CLAIM. 11:28AM 15 11:28AM 16 WHY SECTION 230(C)(1) AND (C)(2)(B) SHOULD NOT APPLY WITH 11:28AM 17 RESPECT TO PLAINTIFFS' CLAIM UNDER THE UNRAH ACT BUT IN 11:29AM 18 ADDITION TO THAT THE PLAINTIFFS HAVE NOT COME CLOSE TO STATING 11:29AM 19 A CLAIM. 11:29AM 20 11:29AM 21 VIOLATION, IS AN INTENTIONAL DISCRIMINATION STATUTE. 11:29AM 22 CALIFORNIA COURTS HAVE CLEARLY HELD THAT FACIALLY NEUTRAL 11:29AM 23 POLICIES ARE NOT ACTIONABLE AND THAT ALLEGATIONS OF DISPARATE 11:29AM 24 IMPACT ARE NOT ENOUGH. 11:29AM 25 FINALLY, ANY IMPLICIT STATEMENT ABOUT THE REASON FOR WHY SO UNLESS YOUR HONOR HAS ANY FURTHER QUESTIONS ABOUT THE AS MY COLLEAGUE EXPLAINED, WE DO THINK THERE'S NO REASON THE UNRAH ACT, WHEN PLED HERE AS SEPARATE FROM AN ADA THE COURT: OKAY. SO LET'S PAUSE THERE. UNITED STATES COURT REPORTERS THAT WAS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 235 of 239 48 11:29AM 1 THE ARGUMENT YOU MADE IN YOUR BRIEF. THEIR ARGUMENT IS NOT 11:29AM 2 THERE'S A DISPARATE IMPACT, BUT THAT THERE'S AN ACTUAL POLICY 11:29AM 3 OF DISCRIMINATION AGAINST LGBT CONTENT CREATORS. 11:29AM 4 11:29AM 5 HAVE ALLEGED. 11:29AM 6 12(B)(6) ARGUMENT AGAINST -- FOR THE FAILURE TO STATE A CLAIM 11:29AM 7 UNDER THE UNRAH ACT ISSUE? 11:29AM 8 11:29AM 9 11:29AM 10 STATE A CLAIM FOR THE UNRAH ACT, BUT THERE'S NOTHING CLOSE TO 11:30AM 11 THAT HERE. 11:30AM 12 11:30AM 13 NOBODY WAS TALKING ABOUT IN THEIR PAPERS, BUT I JUST WONDERED, 11:30AM 14 THE UNRAH ACT, YOU KNOW, IN THE ADA CONTEXT YOU HAVE TO HAVE A 11:30AM 15 PUBLIC ACCOMMODATION AND YOU WOULD HAVE TO HAVE A BUSINESS. 11:30AM 16 11:30AM 17 11:30AM 18 11:30AM 19 SERVICES AND THE CALIFORNIA COURTS HAVE HELD THAT THEY DIDN'T 11:30AM 20 APPLY TO WEBSITES. 11:30AM 21 I THINK THERE IS SOME AMBIGUITY IN PLAINTIFFS' CLAIMS 11:30AM 22 ABOUT EXACTLY WHAT -- WHO IS BEING DISCRIMINATED AGAINST AND ON 11:30AM 23 WHAT BASIS THAT THEY REFER TO MAINLY LGBTQ IDENTITIES. 11:30AM 24 ALSO REFER TO VIEWPOINTS. 11:30AM 25 SO I KNOW YOU DON'T THINK THAT THAT'S ACTUALLY WHAT THEY BUT IF THAT'S THE ALLEGATION, DO YOU ALSO HAVE A MS. WHITE: IF THERE WERE AN ALLEGATION THAT THERE WERE AN ACTUAL AFFIRMATIVE POLICY TO DISCRIMINATE THAT MAY AND THERE'S A LOT OF RHETORIC. THE COURT: RIGHT. THE COMPLAINT IS -- WELL, HERE'S THE QUESTION THAT DOES THIS PLATFORM QUALIFY FOR -- IN THAT CONTEXT UNDER THE LANGUAGE OF THE STATUTE? MS. WHITE: SO THE UNRAH ACT APPLIES TO ALL BUSINESS THEY I THINK WHILE THE UNRAH ACT IS INTENDED TO BE CONSTRUED UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 236 of 239 49 11:31AM 1 BROADLY, THERE MAY BE SOME CATEGORIES OF PERSONS TO WHOM IT 11:31AM 2 WOULDN'T APPLY, BUT GIVEN THEIR FAILURE TO ALLEGE THAT THERE IS 11:31AM 3 IN FACT A POLICY OF DISCRIMINATION OR THAT THESE PLAINTIFFS 11:31AM 4 DISCRIMINATED AGAINST BASED ON THEIR SEXUAL IDENTITIES, THE 11:31AM 5 COURT DOESN'T NEED TO REACH THOSE QUESTIONS IN THIS CASE. 11:31AM 6 11:31AM 7 11:31AM 8 WANT TO HEAR ANYTHING YOU HAVE TOLD ME BEFORE, BUT IF THERE'S A 11:31AM 9 VERY BRIEF RESPONSE YOU WOULD LIKE TO MAKE, I'LL LET YOU HAVE 11:31AM 10 11:31AM 11 MR. OBSTLER: 11:31AM 12 I REALLY APPRECIATE IT. 11:31AM 13 THIS. 11:31AM 14 FIRST OF ALL, ON DENVER AREA, IT WAS A SIX TO THREE 11:31AM 15 DECISION ON THE 10(C) PART OF THE OPINION AND PLEASE READ THE 11:31AM 16 OPINION. 11:31AM 17 11:31AM 18 11:31AM 19 THE OPERATOR: 11:32AM 20 MR. OBSTLER: 11:32AM 21 THE OPERATOR: 11:32AM 22 MR. OBSTLER: 11:32AM 23 REALLY BOTHERS ME HERE IS THAT I FEEL LIKE I'M ARGUING A 11:32AM 24 FACTUAL ISSUE ON A 12(B)(6) MOTION. 11:32AM 25 THE COURT: ALL RIGHT. THANK YOU. MR. OBSTLER, I'LL GIVE YOU A VERY BRIEF RESPONSE. I DON'T THE LAST WORD. THE COURT: THANK YOU SO MUCH, YOUR HONOR. AGAIN, AND YOUR QUESTIONS ARE DEAD ON ON I WILL MAKE SURE THAT I AM WELL VERSED ON THE EXACT HOLDINGS OF -THE RECORDING HAS STOPPED. ON THE UNRAH ACT ISSUE -THIS MEETING IS BEING RECORDED. ON THE UNRAH ACT ISSUE, THE THING THAT WE HAVE ALLEGED THAT WE HAD A CLIENT WHO, OR WE WILL UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 237 of 239 50 11:32AM 1 ALLEGE IF YOU TAKE THE DECLARATION, WHO WENT TO A MEETING ON 11:32AM 2 2017 AND WAS TOLD TO HER FACE FOUR TIMES THAT THE ALGORITHM 11:32AM 3 IS -- 11:32AM 4 11:32AM 5 SURE THAT I LOOK AT ALL OF THE MANY, MANY ALLEGATIONS IN YOUR 11:32AM 6 COMPLAINT. 11:32AM 7 THERE IS A POLICY OF DISCRIMINATION ALLEGED OR NOT. 11:32AM 8 11:32AM 9 11:32AM 10 11:32AM 11 I'M REALLY TRYING TO SORT OUT THE LEGAL ISSUES HERE. 11:32AM 12 SO IS THERE SOMETHING FURTHER ON WHAT THE UNRAH ACT 11:33AM 13 REQUIRES OR NOT, THAT IS WHAT I'M LOOKING FOR. 11:33AM 14 NOTHING ELSE, YOU DON'T HAVE TO HAVE ANYTHING. 11:33AM 15 MR. OBSTLER: 11:33AM 16 THE COURT: 11:33AM 17 MR. OBSTLER: 11:33AM 18 POLICY UNDER THE UNRAH ACT. 11:33AM 19 UNRAH ACT IS THAT THERE WAS AN ACT OF DISCRIMINATION, AND I 11:33AM 20 THINK WE HAVE DONE THAT. 11:33AM 21 11:33AM 22 UNRAH ACT. 11:33AM 23 OKAY. 11:33AM 24 11:33AM 25 THE COURT: YOU KNOW, I WILL READ -- I WILL MAKE SO I DON'T NEED YOU TO ARGUE AGAIN ABOUT WHETHER I THINK I AM -- I HAVE THE COMPLAINT, AND I'M GOING TO RELY ON THE COMPLAINT. THE PARTIES BRIEFED THAT ISSUE EXTENSIVELY. IF THERE'S THERE IS ONE OTHER THING. OKAY. YOU DON'T HAVE TO PLEAD THERE'S A ALL I HAVE TO SHOW UNDER THE THAT WOULD BE MY LAST POINT. THERE DOESN'T HAVE TO BE A WRITTEN POLICY UNDER THE I DON'T THINK ANYBODY WOULD HAVE SUCH A POLICY. THE COURT: ALL RIGHT. THANK YOU ALL VERY MUCH. I APPRECIATE ALL OF THE PRESENTATIONS AND THE EXTENSIVE BRIEFING. UNITED STATES COURT REPORTERS Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 238 of 239 11:33AM 1 11:33AM 2 WEBINAR. 11:33AM 3 ISSUE A WRITTEN ORDER. 11:33AM 4 MR. WILLEN: 11:33AM 5 MR. OBSTLER: 11:33AM 6 11:33AM 7 51 AND I APPRECIATE YOU BEARING WITH OUR VERY FIRST ZOOM I WILL TAKE THIS MATTER UNDER SUBMISSION, AND I'LL ALL RIGHT. THANK YOU VERY MUCH. THANK YOU, YOUR HONOR. THANK YOU, YOUR HONOR. YOUR TIME. (ZOOM COURT CONCLUDED AT 11:33 A.M. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES COURT REPORTERS WE APPRECIATE Case 5:20-cv-04011 Document 1 Filed 06/16/20 Page 239 of 239 1 2 3 CERTIFICATE OF REPORTER 4 5 6 7 I, THE UNDERSIGNED OFFICIAL COURT REPORTER OF THE UNITED 8 STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, 9 280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY 10 11 CERTIFY: THAT THE FOREGOING TRANSCRIPT, CERTIFICATE INCLUSIVE, IS 12 A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE 13 ABOVE-ENTITLED MATTER. 14 15 16 ______________________________ IRENE RODRIGUEZ, CSR, RMR, CRR CERTIFICATE NUMBER 8074 17 18 DATED: JUNE 4, 2020 19 20 21 22 23 24 25 UNITED STATES COURT REPORTERS