Court: Congressional Reps Making Noise About Social Media Moderation Doesn't Make Platforms Extensions Of The Government

Another set of plaintiffs insisting social media platforms have it in for "conservative" users have lost in court. The hook for this lawsuit is the (specious) claim that government officials' statements saying social media services should do more to curb the spread of misinformation (COVID, elections, etc.) somehow transformed these private companies into state actors. So, when they did decide to moderate the conspiracy theorists' accounts, it was ACTUAL CENSORSHIP.

Here's Eric Goldman's summary of the case, the plaintiff, and the lawsuit's outcome.

The plaintiffs are “conservative content creators” (i.e., QAnon enthusiasts) who posted videos to YouTube. YouTube suspended their accounts. The plaintiffs sued for First Amendment violations (presumably a 1983 claim). The court previously denied a TRO. YouTube now gets the case dismissed with prejudice. It’s not a close call.

In capable hands, I supposed this would have been handled more like an actual civil rights lawsuit, rather than the collection of novel First Amendment legal arguments it actually is. But, as Goldman points out, the litigants were represented by Cris Armenta, who is best known for representing a couple of actors who appeared in an incredibly bigoted video entitled "The Innocence of Muslims." In an attempt to make their embarrassing involvement in this embarrassing production disappear, the plaintiffs engaged in some ridiculous copyright infringement claims against YouTube. It did not go well for them or their legal rep, even if it took longer for the Ninth Circuit to deliver a solid rejection than it should have.

Things don't go well here either [PDF], which says something about Armenta's legal skills. Or choice of plaintiffs. Or both. The argument is that government people said stuff about moderating certain content. And, because certain content was moderated, YouTube was acting as an extension of the federal government. Hence the ridiculous First Amendment arguments, which the court handily rejects, citing yet another lawsuit represented by Cris Armenta, Daniels v. Alphabet.

The Court finds that the statements by federal lawmakers Plaintiffs point to are insufficient to plead that the government “commanded a particular result in, or otherwise participated in, [Plaintiffs’] specific case.” Heineke, 965 F.3d at 1014; see also Daniels v. Alphabet, No. 20-cv04687-VKD, 2021 WL 1222166, at *6 (N.D. Cal. Mar. 31, 2021). Plaintiffs point to generalized statements from lawmakers pertaining to “coronavirus-related misinformation,” “disinformation proliferating online,” “QAnon-related speech,” and “conspiracy theories.” None of the statements mention Plaintiffs’ names, their YouTube or Google accounts, their channels, or their videos. Plaintiffs argue that state actors “commanded a particular result” in their case because “Plaintiffs have alleged that Congress demanded that the unpopular speech dubbed ‘misinformation,’ and QAnon-related speech be limited and erased, which is precisely what Plaintiffs allege Defendants did.” The Court disagrees that broad lawmaker proclamations regarding “misinformation” or “QAnon-related speech,” for example, are sufficient to show that the government “commanded” the suspension of Plaintiffs’ accounts. Even if Defendants had complied with these lawmaker statements to the letter, they would still have had the ultimate discretion on what videos or accounts fit into buckets like “misinformation” or “QAnon-related speech.”

The lack of specificity in the government statements cannot be the basis for specific actions targeting the users' accounts. And, as the court goes on to point out, the content being sued about isn't clearly linked to any government official's categorical urgings.

The Court also disagrees with Plaintiffs that they have alleged sufficient facts about the content of their videos to link their removal to the broad categories of online content mentioned in the lawmakers’ statements. For example, Plaintiffs plead no facts to indicate that their videos pertained to COVID-19, so none of the statements from members of Congress relating to COVID-19 misinformation have any relevance to Defendants’ alleged conduct. Further, Plaintiffs plead only vague facts about other subjects that leave open the question as to whether all Plaintiffs posted about these subjects, or only some of them. And none of the lawmaker statements Plaintiffs cite contain clear action items relevant to Plaintiffs’ allegations. (encouraging YouTube to “display messages to any users who have engaged with harmful coronavirus-related misinformation”); (generally discussing “misconduct” related to “the division and the disinformation proliferating online”); (encouraging action on the part of the FBI, intelligence community, and “all Americans”).

Neither does a perhaps poorly worded exchange between YouTube and a member of Congress create a legitimate cause of action.

Plaintiffs assert that there is state action under a joint action theory, pointing to a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki in which Ms. Wojnicki states, “We appreciate your partnership and will continue to consult with Members of Congress as we address the evolving issues around #COVID19.” Plaintiffs argue that this Twitter exchange shows Defendants and the federal government were in an “admitted partnership.”

First off, says the court, the thing about COVID and your lack of content related to COVID doesn't support your argument. Second, your hot take on a friendly social media exchange isn't actionable.

As a threshold matter, the Schiff-Wojnicki Twitter exchange Plaintiffs point to in support of their joint action claim clearly pertains to misinformation regarding COVID-19. As the Court discussed above, Plaintiffs have failed to allege any facts indicating that their posts pertained to COVID-19. Accordingly, it is unclear how this Twitter exchange supports a joint action theory pertaining to the suspension of Plaintiffs’ channels. Since the Twitter exchange appears to be the fact Plaintiffs primarily rely on to allege joint action, Plaintiffs’ failure to plead the relevance of this fact renders their joint action claim essentially unsupported. Further, it is simply implausible to read a casual Twitter exchange between one member of Congress and YouTube’s CEO as joint action. Plaintiffs’ theory would effectively cause companies to cease communicating with their elected representatives for fear of liability, as Defendants compellingly argue.

In other words, a little social media related grandstanding by politicians is not even remotely close to the government directly interceding in social media moderation or delivering mandates that strip platforms of their own discretion and replace that with the government's.

Of course, this will be appealed. And, on appeal, it will be rejected for exactly these reasons. And another attempt to bypass Section 230 immunity fails for reasons unrelated to this statute "conservatives" continue to believe violates their First Amendment rights.