Albertson v. Google, LLC

Filing 57

ORDER GRANTING 53 Defendant Google LLC's Motion to Dismiss. Plaintiff may amend the complaint by no later than March 8, 2024. Signed by Judge Araceli Martinez-Olguin on February 7, 2024. (amolc2, COURTSTAFF) (Filed on 2/7/2024)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
TIMOTHY-ALLEN ALBERTSON,

7

Plaintiff,

8

ORDER GRANTING MOTION TO
DISMISS

v.

9

GOOGLE LLC,

10

Re: Dkt. Nos. 19, 53

Defendant.

11

United States District Court
Northern District of California

Case No. 23-cv-03998-AMO

12
This case is about the First Amendment right to post comments on YouTube. Before the

13
14

Court is Google LLC’s motion to dismiss. The motion is fully briefed and suitable for decision

15

without oral argument. Accordingly, the hearing set for February 15, 2024, is VACATED. See

16

Civil L.R. 7-6. This Order assumes familiarity with the facts of the case, the parties’ arguments,

17

and the relevant law. Having read the parties’ papers and carefully considered their arguments and

18

the relevant legal authority, the Court hereby GRANTS the motion to dismiss for the following

19

reasons.

20

I.

BACKGROUND
Plaintiff Timothy-Allen Albertson is a YouTube user who created at least one YouTube

21
22

Channel and subscribes to Premium YouTube. First Amended Complaint (“FAC”) (ECF 14) ¶¶ 9-

23

10.1 Albertson “has serious legal and political issues with the LGBTQIA+ Identity Group . . . [.]”

24

Id. ¶ 18 (listing some of Albertson’s “legal and political issues” with this group). He has “an

25

acerbic and caustic style and wit in expressing his opinions” about that community, which he has

26
27
28

As it must, the Court accepts Albertson’s allegations in the complaint as true and construes the
pleadings in the light most favorable to him. See Manzarek v. St. Paul Fire & Marine Ins. Co.,
519 F.3d 1025, 1031 (9th Cir. 2008) (citation omitted).
1

1

done in comments he posted to YouTube. Id. ¶¶ 19, 27. In the past two years, YouTube

2

“block[ed] or partially block[ed]” one or more of those comments from appearing on “some areas

3

of [the service],” by “delisting and downranking” them. Id. ¶ 27. Albertson alleges that this

4

“shadow banning” was based on YouTube’s prohibition against “Hate Speech.” Id. ¶¶ 23, 26-27.

5

Albertson brings two claims against Google (d/b/a YouTube) for violating his First

6

Amendment rights to free speech and to peaceably assemble. Google moves to dismiss the claims

7

for lack of state action and because the claims are barred by the First Amendment. ECF 19.

8

II.

Albertson alleges that Google violated his free speech rights under the First Amendment of

9

United States District Court
Northern District of California

DISCUSSION

10

the United States Constitution.2 Google argues that the First Amendment claims must be

11

dismissed because it is a private entity and not a state actor. The Court agrees with Google and

12

finds that the First Amendment claims are precluded by controlling Supreme Court and Ninth

13

Circuit precedent.
Generally, “the Free Speech Clause prohibits only governmental abridgment of speech.

14
15

[It] does not prohibit private abridgment of speech.” Manhattan Cmty. Access Corp. v. Halleck,

16

139 S. Ct. 1921, 1928 (2019) (“Halleck”) (emphasis in original). However, in a limited set of

17

circumstances, a private party’s actions may amount to state action. Tsao v. Desert Palace, Inc.,

18

698 F.3d 1128, 1139-40 (9th Cir. 2012). The Ninth Circuit recognizes four tests for determining

19

whether a private party is a state actor under Section 1983: “(1) the public function test; (2) the

20

joint action test; (3) the state compulsion test; and (4) the governmental nexus test.” Id. at 1140.

21

Albertson argues that YouTube has become “so intertwined with the Executive Branch of the

22

United States” that it has become a state actor. FAC ¶ 20. The Court liberally construes

23

Albertson’s allegations to implicate the public function, joint action, and governmental nexus

24

tests. Accordingly, the Court examines YouTube’s conduct under each, and cannot agree.

25

Any suggestion that YouTube performs a public function is foreclosed by both the

26
27
28

2

Liberally construing the complaint, Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th
Cir. 1988), the Court understands Albertson to bring his First Amendment claims under
42 U.S.C. § 1983.
2

1

Supreme Court and the Ninth Circuit. See Halleck, 139 S. Ct. at 1930 (“merely hosting speech by

2

others is not a traditional, exclusive public function and does not alone transform private entities

3

into state actors subject to First Amendment constraints”); Prager Univ. v. Google LLC, 951 F.3d

4

991, 995 (9th Cir. 2020) (“[d]espite YouTube’s ubiquity and its role as a public-facing platform, it

5

remains a private forum, not a public forum subject to judicial scrutiny under the First

6

Amendment.”). This Court is bound by that precedent and must conclude that YouTube does not

7

perform a public function.

United States District Court
Northern District of California

8

For a private entity to be held liable under the joint action test, courts consider whether

9

“the state has so far insinuated itself into a position of interdependence with the private entity that

10

it must be recognized as a joint participant in the challenged activity.” Kirtley v. Rainey, 326 F.3d

11

1088, 1093 (9th Cir. 2003) (citation omitted). “A plaintiff may demonstrate joint action by

12

proving the existence of a conspiracy or by showing that the private party was ‘a willful

13

participant in joint action with the State or its agents.’” Franklin v. Fox, 312 F.3d 423, 445 (9th

14

Cir. 2002) (citation omitted). Under the nexus test, the plaintiff must show that there is “such a

15

close nexus between the State and the challenged action that the seemingly private behavior may

16

be fairly treated as that of the State itself.” Kirtley, 326 F.3d at 1095 (citation omitted).

17

Albertson alleges that there is such a nexus or interdependence because Congress has

18

investigated Google and Google has permitted the Center for Disease Control to “censor and

19

suppress core speech . . . [.]” FAC ¶¶ 20-21. Albertson points to no authority to support the

20

proposition that Congressional investigations make a private entity a state actor, and the Court

21

declines to make such a finding. Indeed, Albertson has “failed to show any link between [the

22

investigations] and YouTube’s decision to remove” Albertson’s content. See Doe v. Google LLC,

23

No. 21-16934, 2022 WL 17077497, at *3 (9th Cir. Nov. 18, 2022). Albertson offers only a

24

conclusory assertion that Google acted “in concert and participation with and for the Executive

25

Branch of the United States . . . [.]” FAC ¶ 27. Albertson offers no factual allegations that

26

support the theory that there was an “agreement” or a “meeting of the minds” as required to show

27

a conspiracy between Google and the government. See Fonda v. Gray, 707 F.2d 435, 438 (9th

28

Cir. 1983) (citation omitted). Similarly, Albertson has not alleged that Google was a “willful
3

United States District Court
Northern District of California

1

participant in joint action” with the government. See Tsao, 698 F.3d at 1140; see, e.g., Fed.

2

Agency of News LLC v. Facebook, Inc., 395 F. Supp. 3d 1295, 1312 (N.D. Cal. 2019) (no joint

3

action where Facebook allegedly supplied the government with information related to the

4

government’s investigation of election interference).

5

Without any factual allegations to support his conclusory assertions, the Court cannot find

6

that Google is a state actor. Therefore, Google cannot be responsible under the First Amendment

7

for its actions in removing or blocking Albertson’s YouTube comments. See Halleck, 139 S.Ct. at

8

1928.

9

III.

CONCLUSION

10

For the foregoing reasons, the Court GRANTS Google’s motion to dismiss without

11

prejudice. Should Albertson elect to file an amended complaint curing the deficiencies identified

12

herein, he shall do so by no later than March 8, 2024. Albertson may not add new causes of

13

action or parties without leave of Court or stipulation of the parties pursuant to Federal Rule of

14

Civil Procedure 15.

15
16
17

IT IS SO ORDERED.
Dated: February 7, 2024

18
19
ARACELI MARTÍNEZ-OLGUÍN
United States District Court

20
21
22
23
24
25
26
27
28
4