Zhang v. Twitter Inc.

Filing 46

ORDER DENYING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER. by Judge Jacqueline Scott Corley on June 8, 2023. (ahm, COURT STAFF) (Filed on 6/8/2023)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TAIMING ZHANG,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 23-cv-00980-JSC

v.
TWITTER INC.,
Defendant.

ORDER DENYING PLAINTIFF’S
MOTION FOR A TEMPORARY
RESTRAINING ORDER
Re: Dkt. Nos. 36, 38

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Plaintiff brings claims against Twitter, Inc., following the permanent suspension of his

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Twitter account in 2021. Plaintiff’s motion for a temporary restraining order (TRO) is now

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pending before the Court. (Dkt. No. 36.) Plaintiff seeks an order requiring Twitter to reinstate his

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account and permanently suspend the account registered to another Twitter user. Having

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considered the parties’ briefs and the relevant legal authority, the Court concludes that oral

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argument is unnecessary, see Civ. L.R. 7-1(b), and DENIES the TRO. Plaintiff has not shown a

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likelihood of success on the merits or irreparable harm given his delay in seeking relief.

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BACKGROUND
Plaintiff alleges that his account was suspended in November 2021 for “violating twitter

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rules.” (Dkt. No. 34 at 17.) According to the Amended Complaint, “the only thing [Plaintiff] ever

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did with the account during that period was direct messaging people inciting for them to expose

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[another Twitter user’s] HIV status so that he does not spread the infectious disease on a daily

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basis.” (Id. at 17.) Plaintiff alleges this other Twitter user, @troyejacobsxxx, uses his account to

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promote a paid gay porn subscription account. (Id. at 13-15.) Based on a 2021 tweet by

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@troyejacobsxxx stating that he “has a disease ‘other gays have’” Plaintiff believes this Twitter

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user has HIV. (Id. at 14.) Plaintiff alleges he requested @troyejacobsxxx provide him with a

United States District Court
Northern District of California

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blood test, but he declined. (Id. at 14-15.) Plaintiff then began contacting other “gay porn stars [on

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Twitter] asking them to expose his HIV status to protect people in the industry.” (Id. at 16.)

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Twitter suspended Plaintiff’s account shortly thereafter. (Id. at 17.) Plaintiff filed numerous

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appeals of his suspension with Twitter. (Id. at 19.) Plaintiff also alleges he reported

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@troyejacobsxxx for posting “cruising videos” depicting “public sex with college students on

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campuses, failing to verify their age, who may very well be under 18.” (Id. at 19.)

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Plaintiff filed this action on March 2, 2023 alleging numerous claims and seeking $11

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million in damages. (Dkt. No. 1.) After Twitter moved to dismiss, Plaintiff filed a 115-page

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Amended Complaint as of right under Federal Rule of Civil Procedure 15(a)(1)(B). (Dkt. No. 34.)

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Plaintiff filed the underlying TRO the same day. (Dkt. No. 36.) The Court issued an order setting

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a deadline for Twitter to respond to the TRO and Plaintiff filed an “emergency ex parte

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application” seeking to have the motion heard more quickly. (Dkt. Nos. 37, 38.) Twitter filed its

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opposition to the TRO and a motion to dismiss the Amended Complaint on May 25, 2023. (Dkt.

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Nos. 40, 41.)
DISCUSSION

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A TRO is an “extraordinary remedy” that should only be awarded upon a clear showing

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that the plaintiff is entitled to such relief. See Winter v. Natural Res. Def. Council, Inc., 555 U.S.

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7, 22 (2008). The standard for issuing a TRO is identical to the standard for a preliminary

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injunction. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir.

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2001). A court considers four factors before granting preliminary relief: (1) whether the applicant

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is likely to succeed on the merits of the action; (2) whether the applicant is likely to suffer

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irreparable harm in the absence of preliminary relief; (3) whether the balance of the equities tip in

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the applicant's favor; and (4) that an injunction is in the public interest. Doe v. Reed, 586 F.3d 671,

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676 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20). Plaintiff has not demonstrated that

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extraordinary relief is warranted here.

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A. Likelihood of Success on the Merits

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To satisfy the first factor, the movant must make “a strong showing that he is likely to

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succeed on the merits.” Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (cleaned up).
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This means he “must show, at a minimum, that []he has a substantial case for relief on the merits.”

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Id. at 968.
Twitter insists Section 230 of the Communications Decency Act, 47 U.S.C. § 230

United States District Court
Northern District of California

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(“CDA”) bars Plaintiff’s claims as they are predicated on Twitter’s suspension of his account,

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failure to suspend the third-party user’s account, and failure to take action regarding the content

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posted on the third-party Twitter user’s account. Section 230 of the CDA “immunizes providers

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of interactive computer services against liability arising from content created by third parties.”

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Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC (“Roommates”), 521 F.3d

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1157, 1162 (9th Cir. 2008) (en banc). Under Section 230(c)(1), “providers or users of an

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interactive computer service shall not be treated as the publisher or speaker of any information

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provided by another information content provider.” 47 U.S.C. § 230(c)(1). Section 230(c)(1)

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immunity extends to service providers’ activities where they moderate third-party content, such as

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“reviewing, editing, and deciding whether to publish or to withdraw from publications third party

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content.” Barnes v. Yahoo, 570 F.3d 1096, 1102 (9th Cir. 2009). Thus, “the CDA protects from

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liability (1) a provider of an interactive computer service (2) whom a plaintiff seeks to treat as a

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publisher or speaker (3) of information provided by another information content provider.”

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Brittain v. Twitter, Inc., No. 19-CV-00114-YGR, 2019 WL 2423375, at *2 (N.D. Cal. June 10,

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2019) (citing Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir. 2009), as amended (Sept. 28,

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2009)).

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Each of these requirements is met here. As numerous courts have held, Twitter is a

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provider of an interactive computer service. See Rangel v. Dorsey, No. 21-CV-08062-CRB, 2022

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WL 2820107, at *3 (N.D. Cal. July 19, 2022) (collecting cases). While it is difficult to discern

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Plaintiff’s precise legal claims from his 125-page complaint, he appears to allege defamation,

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fraud, emotional distress, and contract-based claims following the suspension of his account and

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the alleged failure to suspend the third-party user’s account. Plaintiff’s claims thus seek to treat

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Twitter as a publisher. Roommates.Com, 521 F.3d at 1170–71 (“any activity that can be boiled

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down to deciding whether to exclude material that third parties seek to post online is perforce

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immune under section 230.”). Finally, Plaintiff seeks to hold Twitter liable for decisions regarding
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“information provided by another information content provider”—that is, information that he and

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the third-party user, rather than Twitter, provided. As such, it is likely Twitter is immune under

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Section 230(c)(1) from Plaintiff’s claims arising from Twitter’s decisions regarding suspension of

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his account and its decisions regarding the third-party user’s account.
To the extent Plaintiff also alleges claims under 18 U.S.C. §§ 2252, 2252A, 2257 related to

United States District Court
Northern District of California

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Twitter’s alleged failure to investigate the third-party Twitter user for possible child sex

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exploitation, criminal statutes generally do not give rise to a private right of action. See Cent.

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Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 190 (1994).

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Likewise, although Section 230(e)(1) provides a carve-out from its protections for federal criminal

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prosecutions, 47 U.S.C. § 230(e)(1), it does not provide any exception from Section 230 immunity

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for civil claims premised upon federal criminal statutes—including Plaintiff’s Sections 2252,

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2252A, 2257 claims. See Gonzalez v. Google LLC, 2 F.4th 871, 890 (9th Cir. 2021) rev’d on other

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grounds by Twitter, Inc. v. Taamneh, 143 S. Ct. 1206, 1209 (2023).
Accordingly, Plaintiff has failed to demonstrate a likelihood of success on the merits of his

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legal claims.

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B. Likelihood of Irreparable Injury

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Plaintiff has also failed to demonstrate that “irreparable harm is likely to result in the

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absence of the injunction.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.

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2011). Plaintiff contends “the irreparable harm consists of: a) my emotional distress, b) the

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irreparable harm of child porn to the children causing suicide et cetera, c) the harm of more

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emotional distress if he scams more people, d) the irreparable harm of defamation.” (Dkt. No. 36-

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2 at 1.)

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“Irreparable harm is traditionally defined as harm for which there is no adequate legal

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remedy, such as an award of damages.” Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068

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(9th Cir. 2014); see also Goldie’s Bookstore v. Superior Ct. of the State of Cal., 739 F.2d 466, 471

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(9th Cir. 1984) (“financial injury does not constitute irreparable harm if adequate compensatory

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relief will be available in the course of litigation.”). Here, Plaintiff seeks “millions of dollars” in

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damages for his current and future emotional distress. (Dkt. No. 34 at 54.) Any allegation that
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damages are not an adequate remedy is undercut by Plaintiff’s delay in seeking relief. Although

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Twitter suspended his account in 2021, Plaintiff did not file this action until March 2023 and did

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not seek a TRO until two months later. “Plaintiff’s long delay before seeking a preliminary

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injunction implies a lack of urgency and irreparable harm.” Oakland Tribune, Inc. v. Chronicle

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Pub. Co., 762 F.2d 1374, 1377 (9th Cir. 1985); see also Cuviello v. City of Vallejo, 944 F.3d 816,

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833 (9th Cir. 2019) (noting that “delay is only one factor among the many that we consider in

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evaluating whether a plaintiff is likely to suffer irreparable harm”).
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United States District Court
Northern District of California

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Having concluded that the first two factors do not support Plaintiff’s motion for a TRO, the

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Court need not address the other factors. See Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir.

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2009). Plaintiff has not demonstrated that the “extraordinary remedy” of a TRO is warranted here.

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Winter, 555 U.S. at 24.
CONCLUSION

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For the reasons stated above, Plaintiff’s motion for a TRO is DENIED.

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The previously established briefing schedule on Defendant’s motion to dismiss remains in

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effect. (Dkt. No. 45.)
This Order disposes of Docket Nos. 36, 38.

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IT IS SO ORDERED.
Dated: June 8, 2023

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JACQUELINE SCOTT CORLEY
United States District Judge

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